.. takes a photograph from your personal web site and then proceeds to use it for a national ad campaign in .net without any regards for your copyright or permission?
This is precisely what has happened. For anybody that has (or is going to buy) .net May 2003, there is a full page advert on page 34 from NDO with the headline, "Break away from the pack". The background is a photograph of tropical fish, which Jennifer (my missus) took during our honeymoon to Bora Bora.
For whatever reason, the photo is mirrored from the original, but it is quite clearly our photo. It was originally placed in our online photo album which didn't have any copyright labels on it. I don't mind people downloading the photos for their own personal use, but to use it for profit without even asking for permission is simply downright unprofessional. I would have expected a lot better from these people.
What options do I have? I'm considering legal action, but is it going to be worth it?
Regards,
Martyn
On 23-Apr-03 Martyn Drake wrote:
.. takes a photograph from your personal web site and then proceeds to use it for a national ad campaign in .net without any regards for your copyright or permission?
This is precisely what has happened. For anybody that has (or is going to buy) .net May 2003, there is a full page advert on page 34 from NDO with the headline, "Break away from the pack". The background is a photograph of tropical fish, which Jennifer (my missus) took during our honeymoon to Bora Bora.
For whatever reason, the photo is mirrored from the original, but it is quite clearly our photo. It was originally placed in our online photo album which didn't have any copyright labels on it. I don't mind people downloading the photos for their own personal use, but to use it for profit without even asking for permission is simply downright unprofessional. I would have expected a lot better from these people.
What options do I have? I'm considering legal action, but is it going to be worth it?
Hi Martyn, You may well have a case, since there is implicit copyright on any "original work". However, the fact that you made it available without explicit restriction on your website could (but by no means necessarily) weaken your claim: basically, naively but unwisely, you left it up for grabs. Copyright normally extends also to "electronic" duplication these days. For the legal aspects of this, you need proper advice, however, since it's a can of worms.
I don't think the fact that it's "mirrored" (I assume you mean flipped left-to-right) would affect matters: it's something very easily done and it could be straightforwardly proved that it was a direct derivation from your "work", and I'm tempted to suppose that it was done precisely with the aim of avoiding the accusation that it's a "copy" (i.e. an exact replica). But I'm pretty sure that this particular issue would not be settled in their favour.
Certainly the action was cheeky and "sharp". One possibility you might consider is approaching these people with the observation that they have made commercial use for profit (and the deed is already done so you can't have it pulled it back) without permission and owe you something, which you could certainly have asked for if they had approached you beforehand, So you could invite them to donate you a specified sum for this particular instance of usage ... and, at the same time, make it clear that this would not entitle them to further usage in future without your permission. Even so, it might be useful to get better advice beforehand than I can give you!
(I'd suggest employing Zeta Jones and Partners as consultants, but I doubt you could afford their fee).
The best of luck, Ted.
-------------------------------------------------------------------- E-Mail: (Ted Harding) Ted.Harding@nessie.mcc.ac.uk Fax-to-email: +44 (0)870 167 1972 Date: 23-Apr-03 Time: 15:34:11 ------------------------------ XFMail ------------------------------
Ted Harding Ted.Harding@nessie.mcc.ac.uk sed:
<much snipping, I dislike include wars>
You may well have a case, since there is implicit copyright on any "original work". However, the fact that you made it available without explicit restriction on your website could (but by no means necessarily) weaken your claim: basically, naively but unwisely, you left it up for grabs.
No, he didn't. Under the Berne convention and assorted other laws, the copyright is indeed implicit; but copyright has a default, which is that all rights that he did not explicitly grant are reserved. So legally, the face he did not put an explicit copyright and/or (non) permission notice on it does not weaken his claim at all.
Copyright normally extends also to "electronic" duplication these days. For the legal aspects of this, you need proper advice, however, since it's a can of worms.
No, it isn't. It's very simple and there is a lot of case law in the area.
Certainly the action was cheeky and "sharp". One possibility you might consider is approaching these people with the observation that they have made commercial use for profit (and the deed is already done so you can't have it pulled it back) without permission and owe you something, which you could certainly have asked for if they had approached you beforehand, So you could invite them to donate you a specified sum for this particular instance of usage ... and, at the same time, make it clear that this would not entitle them to further usage in future without your permission. Even so, it might be useful to get better advice beforehand than I can give you!
I think this is a much better option than legal action. Although Martyn would certainly win any legal action that came up, it would be costly and time consuming. It would be in both Martyn's and .net's interest to settle this amicably and outside of the courts.
(I'd suggest employing Zeta Jones and Partners as consultants, but I doubt you could afford their fee).
The best of luck, Ted.
lewis
On Wed, Apr 23, 2003 at 08:11:21PM +0100, Lewis Collard wrote:
I think this is a much better option than legal action. Although Martyn would certainly win any legal action that came up, it would be costly and time consuming. It would be in both Martyn's and .net's interest to settle this amicably and outside of the courts.
I would add that the courts will expect you to have tried to settle, and going straight to court could (to my limited knowledge) damage your claim, at least as far as reclaiming costs goes.
The only other point is that as the plaintiff, I'm guessing Martyn would need to prove he took the photo. The fish tank (or a second photo of it) would probably suffice.
Cheers, Alexis
Alexis Lee wrote:
I would add that the courts will expect you to have tried to settle, and going straight to court could (to my limited knowledge) damage your claim, at least as far as reclaiming costs goes.
That's what I'm trying to do first of all. I'm also trying to determine the extent of how many times and in how many publications the image appears. So far I've spotted it in Future Publishing's .net and in Emap's Internet Magazine. I've contacted the advertising folk at those publishing firms to request that they do not publish that particular advert again until both NDO and myself have resolved the copyright issue.
The only other point is that as the plaintiff, I'm guessing Martyn would need to prove he took the photo. The fish tank (or a second photo of it) would probably suffice.
Not a fish tank :) The photo was taken in a tourist submarine in the clear blue waters of Bora Bora. I have other photos and videos in that very clearly proves that we took that picture.
Regards,
Martyn
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Alexis Lee -
Lewis Collard -
Martyn Drake -
Ted.Harding＠nessie.mcc.ac.uk