Discussion:
What is the name of your state? Georgia
I have a situation. On a website I own is a picture of one of my dogs with a copyright. While scanning ebay last week, I came upon a charm up for auction that was an exact duplicate of the photo. No detail was omitted. When I contacted the manufacturer about this, I was attacted in an email and told to contact their corporate lawyers. Since the photo wasn't reproduced onto the charm ( I think ) but enamel paint looks as if it had been, are they in violation and what can I do? I can send a copy of both for viewing.
Thanks so much.
Answer:
Originally posted by stjon
What is the name of your state? Georgia
I have a situation. On a website I own is a picture of one of my dogs with a copyright. While scanning ebay last week, I came upon a charm up for auction that was an exact duplicate of the photo. No detail was omitted. When I contacted the manufacturer about this, I was attacted in an email and told to contact their corporate lawyers. Since the photo wasn't reproduced onto the charm ( I think ) but enamel paint looks as if it had been, are they in violation and what can I do? I can send a copy of both for viewing.
Thanks so much. **A: how were you attacted?
Answer:
Since the dog was lying down in the picture, this guy when on to state that hopefully none of my neighbors would ever have a Cavalier that was in a photo lying down because I would try to stop them from displaying the photo. Then claimed that he actually took the picture from which the charm was made, claimed it was a client dog and could produce the dog in court. Then went on to tell me if I had any further contact with him directly, that he would counter sue me for harasment. More or less trying to scare me into leaving it alone.
Answer:
"Since the photo wasn't reproduced onto the charm ( I think ) but enamel paint looks as if it had been, are they in violation"
They may be infringing on your copyright. Whether or not they actually are infringing or are making a "fair use" of your picture -- if indeed it IS your picture -- will depend on ALL of the facts of the case.
"what can I do?"
What do you want to do? You've already asked them to knock if off; they told you to take a hike.
The only thing you can do now is sue them for copyright infringement. You will have to first register your copyright with the U.S. Copyright Office. Then hire a lawyer, preferably one who is licensed and admitted in the state THEY are located in. Then file a lawsuit...
Then the important question -- what are your damages? How have you been actually damaged? Unless the photograph in question had a REGISTERED copyright in place BEFORE they allegedly started using it, all you can sue for is ACTUAL damages, that is, how much money are you proveably out of pocket because of their infringement. I guess if you were to register the copyright, then they might be liable for some extra damages if they continue to infringe after registration -- but you will have to prove in court that they are using your picture for their painting, and not a similar picture from somewhere else. And this is going to be expensive, especially if you have to travel to another state -- and those costs won't be recoverable in court, not will your attonerney's fees, in all likelihood.
I guess you could contact an attorney and have them write some sort of nastygram to try and get them to stop using the picture, but unless you are willing to expend big bucks with little or no chance of return, then your best bet is to give it up.
Answer:
Thanks for your help. I suppose my interest is based more on ethics and emotion. I've recently lost this dog who was very special to not only my breeding program, but to my heart. I would be more than happy to show you how close the charm is to the photo if you email me privately.
Thanks again.
Answer:
"I suppose my interest is based more on ethics and emotion."
I understand that you care deeply about your dog -- I know, I've got two Great Pyrenees dogs myself, -- but unless you are independently wealthy, this sort of lawsuit just isn't worth the hassle.
I also know what it feels like to have your work used without your permission -- I posted some information on my website describing how to fix a certain part on BMW's for pennies that the dealer charges more than $500 to fix. A few weeks later, I got an email from someone who pointed out that someone took my website, PDF'd it, and is now selling it on Ebay. I wrote the guy a letter, but since he lives in the UK, that's the end of it -- I'm not going to spend thousands of dollars to pursue something that I haven't suffered any "damages" from, other than the annoyance of having someone else use my work (and try and profit from it).
As I said, you might be able to get a lawyer to write them a nasty letter, and hope they give in. But if they don't, unless you are prepared to file a lawsuit and are ready to shell out many thousands of dollars that, in all likelihood, won't ever be recouped, even if you do win, then your best bet is to just let it go. Good luck with whatever you decide to do!
Answer:
Without sounding like I'm whining, can I ask why copyright laws exist if the average person can't enforce them? Perhaps this is a job for Judge Judi! LOL
Answer:
The average person can enforce them. If you had suffered a big financial hit from the infringement, then there would be damages that would make the infringement case worthwhile. If you had registered the copyright PRIOR to any infringing use, then the copyright laws provide for "statutory damages" -- under copyright law, if you have an infringement of a registered copyright, then you can either sue for statutory damages or actual damages, whichever is higher. Statutory damages oftentimes make a lawsuit worthwhile even if you have not suffered any actual damages, or if the actual damages are hard to prove or show.
So, there are ways for an "average person" to enforce copyright rights. However, if you don't take the initial step of registering your copyright, or don't suffer significant damages, then a court case is not worth it. However, this is not limited to copyright law. You can't go to court and sue someone because they said something that hurt your feelings -- you can only prevail in a lawsuit when you meet the much higher bar of proving that you have been defamed, and have to show that you have been damaged. Courts, by and large, don't exist to prvide relief for hurt feelings or moral outrage -- they are their to provide relief to those who have suffered more than "de minimus" damages.
Even in small-claims court (Judge Judy territory), you will likely have difficulty receiving a monetary judgement unless you can show how you've been damaged by this infringement (and you'll have to PROVE that the infringement actually exists, and that they are using your picture, and not a very similar picture). In addition, as I noted in an earlier post, even in small claims, you would have to travel to their state to sue them, and those travel costs would not be reimbursible.
Anyway, I don't think it's whining -- but the court system is what it is. If people were free to sue anytime they had their feelings hurt or suffered a moral outrage (actually they can -- anyone can sue anybody for anything -- but they can't prevail) real, legitimate court cases wouldn't have a chance to be heard in our already overcrowded courts!
Answer:
I want to thank you for being patient and kind to me. The photo has a copyright and is plainly seen on it. I suppose that's why I am so angry. Given the control freak in me, I would have just liked to have been asked. She's been stolen off the internet by others who have appologized and offered me samples. I'm actually honored that so many find her so appealing.
Thanks again.