Legal issue - photo rights?

Business Money
1

Here is the situation:

Some time ago, my daughter was a “covergirl” for a baby magazine in Taiwan. The copyright to the photo belongs to the magazine, but we have the right to use it ourselves. As the picture is of my daughter in a swimsuit that I sell, we use the picture in our advertising, including online.

Today, we found another swimsuit retailer (not us), has taken the photo of my daughter, and very carefully manipulated the image so my daughter is wearing their brand’s swimsuit. They are using this picture in their PCHome advertising. I am not sure where else they are using it.

I called the magazine who took the picture originally. They told me, as it is our daughter in the picture, the company could tell them that we gave them permission to use it, so they suggested we approach the company ourselves.

Does anyone have experience with this kind of situation? What course of action would you recommend taking? Frankly, this time I want to someone to feel my anger, I am so sick of this kind of behavior!

2

I would say if the magazine has nothing to do with the use of the photo than it’s between you and that company which is using the picture. The magazine may have no interest in the (mis)use of the picture so they won’t care or support you.

Just wait for our legal experts to chime in as to what action you might be able to take.

3

After a search on the internet, we found our daughter’s pic all over the place… Initial investigation found that the swimwear is manufactured in China and there are a few larger distributors in Taiwan. We had written to a retailer to ask her to take the picture off, and she told us she just used it because all the retailers were using it and it was a very cute picture. She doesn’t know the original source (of course).

If it were just as a mom I would be mad enough, but I also have to protect my business. I am also struck by the mere cheek of it, it’s just so blatant this time.

I am also looking forward to hearing suggestions/ideas.

4

Well, number one, from where I’m standing, is that you don’t own the rights to the pic, having signed them over to the magazine. All you have is the right to use the pic.
So I’m guessing that unless you can persuade the owner of the copyright to take action, you’re out of luck.
I don’t see what YOU can do – it is copyright infringement, but not YOUR copyright.
If I were you, I’d do another photoshoot, make some even cuter pics, and keep the copyright. They’ll still get stolen as soon as you publish them, probably, but at least you’ll have some form of legal recourse – hassling an SME in China from over here in Taiwan. Sounds like a recipe for success to me. You’ll be ROLLING in money when that case is settled! :wink:

5

Well, of course the picture was provided to Taiwan by the Chinese factory, who kindly made it for everyone in Asia to use.

Now my daughter is all over Asia in an unlicensed Pingu swimsuit… great.

Seriously, is there no chance of anything out of this?

6

From a photographers perspective.

Copyright is automatically held by the photographer from the moment he clicks the shutter. Exceptions to this is work-for-hire where the copyright will belong to the magazine. For the original magazine, you must have signed a model release giving the photographer/magazine permission to use your daughters picture. Now, unless you specified different at the time, in writing, the photographer has the rights to do whatever he wants with that photograph. You could approach him to restrict the rights, but unless you specified at the time the photo was taken that the release was only for one magazine, then you have effectively already given your permission for your daughters photo to be used anywhere and for anything.

EDIT Forgot to mention. If you didn’t sign a release in the first place, you can sue and you will win if they cannot show you granted permission for the photo to be used as advertising. That only applies to advertising though, editorial use (magazine article, newspaper etc) doesn’t require releases.

7

Thanks for that information.

The baby magazine’s form says we give them rights to the pictures to be used in their magazine and on their website. And they give us the right to use the pictures if we give them credit.

The Chinese company that took the picture was not given the picture by us, nor by the magazine. They took it off a website (either ours or a retailer’s) without permission.

As one lady involved told me, “They saw a foreign child and thought it would be OK.”

8

Ask the magazine to transfer (sell) the rights to you … as soon as you own the rights, you can take steps to take down the image … but than, it’s a Chinese company, they probably don’t care …

9

There are two issues here: the copyright and the model release issue. You need to send the infringing company a cease and desist letter such as:

Dear [name of infringer]

It has come to my attention that you have made an unauthorized use of my copyrighted work entitled [name of work] (the “Work”) in the preparation of a work derived therefrom. I have reserved all rights in the Work, which was first published in 1999 on mycompany’swebsite.com, and I have registered the copyright.

Your work entitled [name of infringing work] and which appears on your web site at yourinfringing.com, is essentially identical to the Work and clearly used the Work as its basis. [Give few examples that illustrate direct copying and/or unfair use.]

You neither asked for nor received permission to use the Work as the basis for [name of infringing work] nor to make or distribute copies of it. Therefore, I believe you have willfully infringed my rights under 17 USC Section 101, et seq. and could be liable for statutory damages as high as $100,000.

I demand that you immediately cease the use and distribution of all infringing works derived from the Work, and all copies of it, and that you deliver to me all unused, undistributed copies of it, or destroy such copies immediately, and that you desist from this or any other infringement of my rights in the future. If I have not received an affirmative response from you by [date] indicating that you have fully complied with these requirements, I shall consider taking the full legal remedies available to rectify this situation.

Sincerely,

(Your Name)

You can change the copyright owner info to that of the magazine you gave permission to if you really want to and it will probably be scary enough to get them to stop. If they don’t respond, get a lawyer to send one.

The second issue is model release permission. They can’t just use your image or that of your child willy nilly:

"Publishing an identifiable photo of a person without a model release signed by that person can result in civil liability for whoever publishes the photograph.

Note that the photographer is typically not the publisher of the photograph, but sells the photograph to someone else to publish. Liability rests solely with the publisher, except under special conditions." en.wikipedia.org/wiki/Model_release

10

Last time I checked this ain’t America?

11

I feel for you, Asiababy. I went to a photo shop with one of my wedding photo negatives once to have a card printed as a gift for my husband. When I went back to pick up the card, my photo was plastered all over the place in all sizes and on all kinds of things. I was angry and told them to take down my photos, which they did on the spot, but surely they just put them all back up when I left because they refused to surrender them to me unless I paid for them!!! Short of police involvement, what else could I do? They even had the cheek to tell me they didn’t think it was really me in the photo, the bastids. :fume: At least my photo wasn’t being used by my competition in business. I hope you’re able to get something done. Charlie’s idea sounds good.

12

Wow! CREEPS! It never fails to surprise me how naaaasty the majority of people are. :laughing:

13

Last time I checked this ain’t America?[/quote]

US Copyright law generally applies globally as they are signatories to the Berne Convention. As are both China and Taiwan.

14

Charlie Phillips,

Thank you for the sample letter. Once we get the full contact details of the original source of the picture, we will send a letter. Honestly, I don’t know how much good it will be, but it’s worth a try. So many people tell me that Chinese just don’t know it is wrong to do that kind of thing. I am having trouble believing they don’t know it might not be OK. I could understand if it was they didn’t believe they would get caught.

Actually, for the Taiwan retailers we took another tact. We wrote them a letter they had to post on their sites with a link to our store and apology or we would take further action. So now there are several online stores giving us free advertising. I know they innocently took a picture supplied to them and used it, but it’s a good lesson for them.

Housecat,
I couldn’t imagine finding my pictures posted around a store like that. The crazy thing is, some people think the “models” should be flattered by it.

15

I feel for you but looking at a lot of Chinese and Taiwanese blogs and company websites, I doubt you have any recourse. If the magazine won’t go after these guys, and you said they won’t, then I don’t see what you can do. All of these pics get scanned right out of the magazines and used all over the Internet by companies or anyone else that wants to use them. Afterall, we live in the land of copyright infringement.

My only advice is to let this one go and since you’re in business for yourself now, start taking your own professional photos that you own the rights to.

Someone recently gave me a great piece of advice about doing business in Taiwan/China and maybe it’ll help you too. They told me to be the car that everyone else chases and let those other guys be the dogs. In other words, they’ll steal whatever you do and use it for their purposes but they’ll NEVER be the innovators themselves – they’ll always be following your lead.

Don’t know if it’ll work and it gets tiresome to see your work taken like that. But maybe that advice will help. Good luck.

16

When I came to Taiwan seven years ago the first person I met told me a story about going to a coffee shop and being approached by the owner, who introduced himself and took her photo. The next time she returned, she was the face of the store - you know those big wall-size ads some places have.

Ever since then I’ve been really careful about letting people take my photo, and as a result… I’m less ‘famous’ than I could be. I own almost no photographs of myself in a professional environment, I have nothing to show people when they ask about my suitability for a job.

We live in the age of youtube and flickr. Keeping control is good as much as possible, especially if you’re a model. But models need exposure, and all of us are managing a brand in one way or another. This pic is publicity for your (daughter’s) product. Why not collect as many examples as possible of people wanting to use your image, and put them into a portfolio demonstrating the popularity - the value - of your brand. Then the next time around you license photos that you own to people who want to use them, and charge appropriately.

I’m not 100% sure of this, but I doubt that anyone in China is going to take any notice of legal threats in English under American law. Whatever the law may say, you have to enforce it, and you only have to look at the roads to know how much respect people pay to that possibility.

Just be glad you’re not the Kinder boy.

17

Last time I checked this ain’t America?[/quote]

US Copyright law generally applies globally as they are signatories to the Berne Convention. As are both China and Taiwan.[/quote]

Sorry, dude, not Taiwan.
I mean, unless you’re counting it as part of China.
Which, you know, some folks do…

18

[quote=“the chief”][quote=“cfimages”]

US Copyright law generally applies globally as they are signatories to the Berne Convention. As are both China and Taiwan.[/quote]

Sorry, dude, not Taiwan.
I mean, unless you’re counting it as part of China.
Which, you know, some folks do…[/quote]

Thank you Mr The Chief, I was wrong. It’s TRIPS that Taiwan belongs to as part of joining WTO.

19

formosafitness,

I think my small business is a good illustration of this principle. Over the five years we have been running, we have had several instances of people copying/stealing copy, product ideas, etc. One of our more recent ones is the company that copied the product we import, copied our descriptions, etc, then successfully applied for a patent on the product. Of course we are proceeding to have the patent removed. My husband and a company rep had a bit of an online face-off, with the other side telling us that this “ability to copy others is one of Taiwan businesses strengths to be proud of.” (general translation).

Loretta,
Geez the Kinder boy got a rough deal, didn’t he? Even my mother did better for her Toyota Everyday People Ad.

20

Actually, sometimes the most effective route isn’t the most obvious in such cases as this.

Since MANY companies in China and Taiwan either use US or international hosting and/or domain names, simply filing a DMCA with their hosting company or name host can have the desired effect rather quickly. Either that or the company loses their website.

This won’t work with all sites, but it would work enough to be worth using. Trust me: hosting companies do not want sites that rip off customers or IP because they themselves would get a slap.

It’s a technique when I’ve had content stolen that I’ve used when the original infringer wasn’t replying to email or cooperative.

The only alternative is taking photos but not using them on websites at anything more than a smallish scale and/or taking multiple shots of the same image … so that you still retain a unique and copyright image yourself. Most amateurs only take one or two shots at a time.

Perhaps Craig could add his own thoughts here.

I think mostly it’s ignorance: people don’t know you can buy great images for such projects with model release for sites and products. Even if they know you can, they don’t know where. Taiwan is still in the Internet Dark Ages in many ways, despite much improvement of the past few years.

Kenneth