Is someone or somewhere using your photographs and not crediting you? Simple. You don’t need a lawyer to sort it out for you.
You’re going to first off decide how much the LICENCE to use the photograph is worth to you, ask them to pay, send a demand and then take the matter to the Small Claims Court. Remember, you as the photographer are the copyright holder for the picture, UNLESS contractually agreed to otherwise (edit: this does not apply if the photograph was commissioned by a person). If somebody uses the photo, they have to pay you a licence fee to use the picture.
- Decide how much the LICENCE to use the photograph is worth to you.
- Send the offender an official invoice.
- Follow up with a Letter of Demand – downloadable here from the Justice Department’s website.
- Still no payment? That’s fine. You’ll send a Summons – downloadable here from the Justice Department’s website. Please see official procedure below.
Go and have a read on the Small Claims Court website for the limits (currently R15,000 claim) and limitations in place. They are very helpful and as long as you’re not being utterly ridiculous, you will get your money.
Procedure for the Small Claims Court as taken off the website:
Step 1: Contacting the opposing party
Contact the opposing party (the person against whom you are instituting legal proceedings) either in person, in writing or telephonically and request them to satisfy your claim.
Step 2: Letter of demand
If the opposing party does not satisfy your claim, send them a written demand setting out the facts on which the claim is based and the amount you are seeking. Afford the opposing party 14 days from receipt of your letter to settle your claim. Deliver the written demand by hand or registered post to the opposing party.
Step 3: Going to the clerk of the court
After 14 days report to the clerk of the court with the following documents:
- Proof that the written demand was delivered, such as a post office slip.
- Any contract, document or other proof upon which your claim is based or that has regard thereto.
- The full name and address (home and business addresses, if available) and telephone number of the opposing party.
Step 4: Summons to the opposing party
The clerk of the court will examine your documents and assist you in drawing up the summons. The clerk of the court will issue the summons and hand it to you to hand to the opposing party. The clerk of the court will also inform you of the date and time of the hearing of the case.
Step 5: Delivery of the summons
Serve the summons on the opposing party in person and have them sign for the document. The plaintiff is required to make copies of the summons, letter of demand and return of service. The copies must be served on the opposing party (otherwise known as the defendant). The plaintiff must deliver the original summons and return of service to the clerk of the court as soon as possible before the hearing to ensure the information is kept in the court file.
What might happen between Step 5 & 6:
POSSIBLE STEPS BY THE OPPOSING PARTY AFTER RECEIPT OF THE SUMMONS
- The defendant may comply with the plaintiff’s claim.
- The defendant may deliver a written statement (plea) to the clerk of the court and send a copy to the applicant.
- The defendant may issue a counterclaim by delivering a written statement that contains the same particulars as those required for a summons to the clerk of the court.
- If a plea or a counterclaim is instituted, the court proceedings must still be attended.
WHAT DO YOU DO IF THE OPPOSING PARTY HAS SATISFIED YOUR CLAIM?
- Issue a written receipt immediately
- Inform the clerk of the court that your claim has been settled and that you are no longer proceeding with the case.
Step 6: Hearing
- You must appear in court in person.
- Ensure you have all the relevant documents on which your claim is based with you.
- Ensure that all your witnesses are present.
- Ensure that you have the written proof that the summons was served on the opposing party.
- The court procedures are informal and simple.
- No advocate or attorney may appear on your behalf.
- The commissioner of the court will request you to state your case. State the facts as concisely as possible.
- Answer the questions of the commissioner and submit your exhibits. (document upon which your claim is based)
- No cross-examination between the parties is allowed. With the commissioner’s permission you may, however, put a few questions to the opposing party.
- Listen attentively to the opposing party’s explanations and inform the commissioner of any facts you believe have not been presented accurately.
- After the commissioner has heard you, your opposing party and any witnesses that may be present, the court can pass judgment. The commissioner may also indicate that judgment will be passed in writing at a later stage.
Step 7: After judgment
In case judgment is given against you –
- The judgment of the court is final, unless some ground for review exists.
- Settle any order for costs that the court may make against you. The only possible costs can be those that the opposing party may have had in respect of fees for the sheriff.
- Abide by the decision of court.
The above-mentioned merely informs you of the most important steps to be taken with regard to the institution of a case in the small claims court.
Should you require assistance with any matter at all, the address and telephone number of the clerk of the small claims court can be obtained from your local magistrate’s office.
– See more at: http://www.justice.gov.za/scc/scc.htm#sthash.fl6CcdT4.dpuf
*Please note that this ‘blog’ post should not be regarded as ‘legal advice’ and should most certainly not take the place of a legal professional who is advising you on a case as they will be well-versed with the facts of each individual case.
Philipa is the lead consultant and auditor at ProPrivacy. With clients as far afield as Canada, South Africa, Kenya, Germany, Spain and other such exotic locations, besides Cork and elsewhere in Ireland, Philipa enjoys a broad view of the state of data protection, privacy and cyber security worldwide. Philipa’s passion is manageable data compliance for SMEs.
Philipa is a qualified teacher besides holding a computer science (Bachelor of Science in Artificial Intelligence Programming) and electronic and intellectual property law (LLB) qualified. She is trained in constitutional (fundamental) rights litigation and enjoys a good debate.
Philipa has over twenty years of experience working in different sized organisations and sectors on operational, governance, risk management and compliance matters. She is an analytical and focused person that enjoys a challenge in the workplace. She loves technology, systems and people and has a passion for showing people how technology can make life easier and better. She understands that the world is driven by data today but privacy is paramount. Responsibly developed AI excites Philipa for the future.