*
A couple of years ago the office manager came out to where I was working and took a bunch of pictures ( hey at least she caught me working). Next thing i know there is a picture of me in all of their ads in the newspaper and other publications. I was never asked and certainly never gave written permission to the company for use of my mug. This year my picture is in a big yellow page ad. Only if you study the ad or knew me would you recognize that it is me.
I has been thinking about moving on to another local company and think it would be a great embarassment to them to say ” joe blow company has the guy thats on the ladder in so and so s ad in their employ now”.
do I have any rights in this deal?
Discussion Forum
Discussion Forum
Up Next
Video Shorts
Featured Story
Listeners write in about haunted pipes and building-science tomes, and they ask questions about roof venting and roof leaks.
Featured Video
Highlights
"I have learned so much thanks to the searchable articles on the FHB website. I can confidently say that I expect to be a life-long subscriber." - M.K.
Replies
*
You will find the advertising standards in the UK are different to the USA. As you state "This is my design and make" You will need to find an english lawyer to make you case but contact the british advertising standards authority for guidance. From what i understand " the add must be true" and this one is clearly misleading. keep us up to date.
*
Hey Sgian,
I fear that if you decide to sue, you will be in for a very, very long legal battle which you probably will not win. Or, it may be a quick suit, and you still lose.
Here's a few reasons behind my comments:
1. Whenever a company or individual submits an ad to a magazine, it may very well take a few weeks or months to set up the ad layout and prepare it for print (especially ads like this one) Since it takes a while, it is possible that they had the picture ready before you had your article printed. If they saw your picture and said "Oh crap, we gotta pull that picture", it would still be in that particular edition since it was already in the process of being printed up.
2. I do not see your name anywhere on the ad or picture, and I do not see anywhere in the ad that says this piece of furniture was dersigned by, built by, or is a close fascimile of any work that the school, or any of its students designed or built. In other words, it was simply used as an illustration.
3. You may have copyright protection here in the US, but just how much copyright protection do you have over there? Are you willing to spend an all time record amount of money to fight this? Is what you are expecting them to do if you win worth the money and time it will cost to pursue this?
In America, if this happened, about all the school would have to do is write an apology, refrain from using the image in any other ads or print, and then they will likely not be required to pay any damages whatsoever. You would first have to prove that you lost income on their use of the picture before you really have a chance at gaining anything from them monetarily.
I would be pissed just like you are, but you also have to look at this realistically. By not mentioning anything about them being the designers and builders of this furniture, did they cause you any financial harm? I know they stole the image, but it was probably not like you think. It might very well have been a kid or young assistant that was told to "get me a picture of a fine piece of furniture for our ad layout", and he/she did just that. They found a picture (probably by using a search engine) and used it without thinking about it. The school will admit they made a mistake, and retract the ad, and refrain from using the picture again. It would take a great lawyer, at a great price to get the school to actually have to pay you something.
That fine piece of furniture in the ad would most definitely look better than anything the students could produce.
But then again, this is just my opinion...
James DuHamel
*Sgian,Could they have lifted the picture from the web, totally independent of the magazine? Another problem, since you'd only be able to blame/sue one enterprise.MD
*Sgian,FWIW, that is one beautiful chest of drawers.Eric
*I go with Eric on this one.Rich Beckman
*Realistic or Pessimistic? All due respect James, but some people are combative, and some people are the kind to smooth things out. You tend towards the later James...and I admire you for it! I for one do not believe anything is impossible... until I have given it a good kick. Firstly, I would never resort to litigation unless I was absolutely positive that it would end in success. A well thought out letter, marked "Without prejudice", delivered by registered mail...wilmail... willSend it to the comptroller or president of the school. If they are willing to negociate....you are on your way. Even if they are not...aftenot... after ofcampaign..thsmear... theybe more willing to negociate...as the articles are published...send them along. You may wish to get legal council to look them over...just to make sure you are beyond reproach with the statements you make. Something is worth...what someone will pay. We are talking about shady dealings, *theft*, and to protect their reputation the school "SHOULD" not only admit...but pay as well. Tell them there is no need for anyone to know...but it will cost.good luck.
*I agree with Rich, but I think Eric's all wrong.Or is it the other way around ? Oh well, something like that.
*Lawrence,You really need to quit using that spell wanker...
*Lawrence,I am not saying he shouldn't contact the school and the mag. I am saying that he should be cautious about jumping into a lawsuit over the picture. I would be so pissed I couldn't stand it if someone stole my designs and used them without my permission. In this case, I can only assume (based on available info) that the picture was used for illustration purposes only, and not used for a profit venture. Now if I were to find out that they were teaching the students how to make that particular piece of furniture, I would be on a plane to the UK and having a face to face with the school administration. Lawsuit would follow. But, just for using the picture as an illustration, it would be costly, and very difficult to get any compensation out of them. A letter writing campaign (or a phone campaign) would be my first step to solving the problem. I would also be asking for a public acknowledgement (in the mag) that the furniture design was mine, and not the school's. Lawsuit would be a last resort, and only if I thought they were being malicious about the whole thing.Proving ownership, rights, and copyrights over internet posted material is hard. The internet is so unregulated, and involves so many countries that legislation and laws are hard to get passed. I foresee it coming though.This is indeed a worthy battle, but I would proceed with diplomacy first. It is the least costly, and in most cases gets a better return. I say we ALL write letters to the school and tell them what we think about the situation. I guarantee that we would get their attention. Just a thought...James DuHamel
*Thanks for all the responses and offers of help. I have been rather surprised by the number of emails I've received outside the forum too and thank those folks for their contributions. It seems I opened up a topic that touches a raw nerve within all 'creative' people. Perhaps we don't much think about this kind of thing in going about our daily business. One interpretation that could be deduced (and I'm not saying that this is the case) is that the college is somehow admitting that their own students or staff have never produced something they feel is good enough to be featured in their advertisement. Of course they might have just been thoughtless, and grabbed an image they found attractive without any thought about whose property it is, or the consequences of using it. However, what do they do if someone contacts them after seeing the advert to say they want to buy that cabinet, or commission the student that made it to make more furniture in a similar style? Do they then confess and pass the lead on to me, or do they pretend it is something that has come out of the college, and then scramble around to fake it up? Anyway, I have my UK based spies doing some research for me, and I've emailed a few of my many contacts there. May 1st. is Labour day in GB, so no-one is working! Still I expect to hear something fairly soon, and then try to decide what the best course of action might be. I'll do an update later. As I said, this topic seems to have touched a bit of a nerve. A similar message is posted over at Knots, for there was a lot of good input there too! 'Til later, Sliante.
*Update. I started by contacting the editor of the magazine in question. He was unaware that the classified advertising section of the publishing group had pulled my image out of his editorial files to use with the advertisement. The college supplied the text, and asked the magazine to provide a suitable photograph. The editor is ensuring that my image is removed from future advertisements in his magazine. He offered, an apology for the error, which I find entirely satisfactory; I have an ongoing business relationship to consider, and a little give and take is surely appropriate. I set off some enquiries with friends and family in GB to see if any other magazines are carrying the advertisement using my image. So far, nothing has been reported. Lastly, I wrote to the furniture tutor at the college and pointed out the following, * They are using my copyrighted image, * Ultimately they are responsible for their own actions, i.e., they placed the ad. * They, at a minimum and out of courtesy, should have contacted me asking permission to use it. * An acknowledgement of ownership of the image should have been incorporated in the advert. I asked them to 'cease and desist' (a phrase I picked up in these forums) from using my image, cancel similar adverts in other magazines, and destroy any promotional material that they may have produced using it, etc.. Their actions may simply have been thoughtless. I would be prepared to negotiate if they find my image particularly apt for their needs, and wish to continue using it. I made an offer along these lines. The conciliatory approach on my part just seems the best way to go. It's not- as far as I can tell, like the movie with Demi Moore and Michael Douglas. (The name of the movie escapes me, but she is new the boss promoted over him.) Anyway there is a sex scene of course, and somewhere in there is a table or sideboard. All of a sudden there is a demand for this piece of furniture because people saw it in the film, and a company sets up a line to produce it, and they are selling quite nicely, thankyou very much. The movie producers had seen the piece in a design magazine or something, and got the set carpenters to knock one up for the movie. The designer of the piece got to hear of these shenanigans(sp?) and set off a law suit of some sort which he ultimately won citing something called- I think, 'trade dress.' I've learnt a lot from this discussion. I hope others have to, and again, many thanks to all those that had a contribution to make, here, and outside the forum. I was quite taken aback by the number of people with generous offers of help. I'm trying below to add a link to the other forum, where the same question was posed, just in case people are interested. Sliante.http://webx.taunton.com/WebX?230@@.ee9236a
*Sgian ,I'm glad everything has worked out to your satisfaction.vince
*Sgian,Isn't it great when you have a forum where you can blow off some steam, be indignant, ask for opinions and help, get it, and then rationally deal with the problem in such a manner that you do not alienate the offender whose offense was not premeditated or malicious. And, in doing so, you keep a viable, potentially profitable relationship which, at a minimum, would have been severely strained and perhaps without a future.
*Ralph, I agree, and I do believe at this stage, and in this case, that the softly, softly approach is the right one to start with. Everyone makes 'honest' mistakes, and I suspect that that is the case here. I don't get into BT so much as Knots, where I tend to try and answer questions rather than set them. It is gratifying to know that I can also begin subjects like this. A problem shared is often a problem solved, and, as a bonus, others perhaps learn something from the discussion. I noted the comments made here and over at Knots, did a bit of research of my own, and evolved a strategy that I thought appropriate, and I'm pursuing it. If something interesting develops, I'll post a further update. Personally, I often find feedback from the originator of a topic rather useful and instructive. Sliante.
*Sgian,no disrepect intended here,but I am wondering about the last word in your post. Sliante.There is a fairly popular beer here in the USA that uses that word on its bottles. I am wondering how it is pronounced and also its literal meaning.Trying to further my limited knowledge,Stephen
*Slan-juh (juh as in huh, soft 'j'.) Short for Sliante Bheatha (pronounced Var) i.e Slan-juh Var. Scots Gaelic, literally 'Good Life.' If someone buys a pint, we say Sliante. Whisky comes from Uisge Bheatha, Oos-guh Var, Water of Life! Very appropriate I think. Sliante.
*Thank You Sgian,Good Luck All, Stephen
*b Final Update. I heard back from the college that used the image, and it seems the use of it was a one off incident. I received a fulsome apology, and the assurance that they would not use it again. They are unable to pay a nominal fee for use of the image. Circumstances were as one or two surmised; that the classified advertising sales department of the publishing group simply picked some images to go with the text for selection by the college. They just happened to pick mine i (dare I mutter under my breath,......for obvious reasons of course. No I daren't. I'll get slammed for being an arrogant S.O.B.!) The college was assured mistakenly by the publishers that there were no problems with copyright infringement. No-one thought to check with me is the kind interpretation. That seems to be about it as far as I'm concerned. I tend to be generous regarding 'honest' mistakes made by others; I make plenty myself to serve as an example! Sliante.
*Ski-doo (Canuckian equivilant for yer moniker)Your missing a prime opportunity for some free, dare I say deserved, publicity. The school or the mag. should publish the offending pic with an explanation of who did the work, and a little bio. at least. . . don't be such a wimp.. . you can ask them nicely but don't leave them an out!!! They owe you that!!!-pm
*Sgian,No need for you to mutter the obvious reasons under your breath. The reason is obvious for all of us to see. It is one fine piece of work, and the sales department, I'm sure, was confident the college would have no complaint.Rich Beckman
*Or you could put "my furnature creations have been used by xxxx cabinetry school in their advertising" in your own advertising. Buy a display ad right next to theirs.
*No, you daren't say "deserved, publicity," but you did anyway. I thought about that, but I'm going to be a wimp. I have an ulterior motive: I might want a favour back one day. America is just where I happen to stay right now, but I'm British, and that's my home. I appreciate the thoughts though. Thanks Patrick, Sliante.
*i "Buy a display ad right next to theirs."I thought about doing that too. Two of us with sneaky thoughts!
*
Sgian,
I'm a pro Graphics Artist and Advertising Photographer with some experience on the topic of photo/creative artist infringement. You might want to familiarize yourself with U.S. 1976 Copyright Laws.
Without question, you have absolute copyright ownership of both the creative design AND the photo you took.
A few years back I took some simple studio photos of a shapely coed in a swimsuit. She wanted to submit them to a well known "body fitness" type magazine. She hoped that they would offer her a modeling job, etc. Weeks passed and no word. She happened to be working out at a local gym when an acquaintance approached her and congratulated her for being in the magazine. She was flabbergasted! Not only had the photo I took been published without permission (mine/hers) but it was being used to help sell someones swimwear line...and they even had the audacity to give another photographer credit (caption "photo by....").
G-G-G-R-R-R-R-R-R-R!
She brought the magazine over to my studio and we calmly walked across the street to an attorney's office I knew. In less than 10 days she received a check for $2,000.00 and I for $5,000.00 to settle the matter with the magazine. Why the difference? The answer was that "she" was an unknown aspiring model and I was a well published photographer with hundreds of credits. They chose to pay without a whimper because of the possible exposure they might suffer if it ever ended up in court.
The irony is....if this aspiring model would have been offered a legit model job by this magazine for the ad in question...she'd have made less than $500.00!
Good luck!
*
Here's the story. I had an article published in a British woodworking magazine (The Woodworker) over two issues, i.e., two months. The article detailed the work I undertook from the original design process to the last lick of polish for a piece of furniture. I sold the
b "First British Publishing Rights"
to the publisher. So far, so good. I was happy. I got paid, and a bit of publicity for yours truly.
A month or so later, I open the next issue of The Woodworker, and find
b my
piece of furniture is being used to advertise a furniture making and design course at the Gloucester College of Arts and Technology, England. I have no association at all with this college. I did not study there. I am not a teacher there. I have never been a teacher there, etc, etc., and I live in America.
The point is that this piece of furniture is mine! I made it,
b I
photographed it, and most definitely
b I have the negatives.
The photograph they have used is without doubt a copy of one of my originals, perhaps lifted from my website, or scanned from the magazine that published my article.
I wasn't asked by the college if they could use my image to advertise their course. I have been paid no money by them, and I am definitely pissed off that they should use my work and photograph (image) to advertise their course.
Do I have to open my butt cheeks a little further, or is there any way I can get back at them for what I feel is theft. Some of you folks will know I mostly hang around in Knots, but if there are some legal brains around, I'd appreciate some comment before I pick up the phone and get all abusive with this college.
I will post something similar over at Knots for comment there, and the attached JPEG is the advertisment. Sliante.
*First I would check the contract you had with The Woodworker magazine. Often, when you submit something for publication, you grant them ownership and the right to use, without restriction or further compensation, the article and anything included, like pictures, diagrams, etc. The fine print usually sticks it to ya. So, did you copyright your work, your article or have any restrictions you wanted in the contract? Sort of reminds one of the recent thread about Taunton having the right to print what we post here on Breaktime. Get youself a new tube of K-Y.
*I believe you make fair points, but the magazine didn't re-use my photograph. An independent college, that has absolutely nothing to do with the magazine publisher used my photograph to advertise their training course. Is that different?I have already purchased raspberry flavoured, mint flavoured, and banana flavoured KY Jelly if that would help! Perhaps they can be mixed for an extra special zing on the tongue! Sliante.
*Sgian ,I would take a full page ad in the same mag. to state that the design is your's and that you never heard of this school and if anyone wants to learn how to make this peice they should talk to you.Vince
*Sgian, Scenario: Magazine pays you for your article and picture(s). Magazine assumes complete ownership of same and puts them in a file cabinet. Woodworking school is designing an ad with the magazine's in-house Ad Designer and is looking for ideas. In-house Ad Designer has all the stuff they need and just happens to pick your picture (which, of course, is now their picture) out of the file cabinet. Magazine, for design service, plus ad fee, uses that picture with ad copy. Done deal.
*And isn't there another aspect to all this? This college is suggesting that I, and my piece of furniture are somehow associated with it, which I am most definitely not!! Isn't that a bit like Pepsi saying, "We make Coke, even though we have nothing to do with Coke," and what we have just claimed is a barefaced lie? Surely, no company lawyers would allow such a distortion of the truth to be advertised, but perhaps I am wrong on that one! Sliante.
*Sgian, Ralph is probabaly right but the same guy who sold them ad space is the same guy who will sale you ad space so let the public know where the "school" is coming from.If the mag.now ownes your pic. of your design what keeps them from selling that design to any one who wants it? Vince
*I don't know! I think I need to do some checking on my contract. Sliante.
*The reason you need to know about the contract is for the possibilty that the magazine sold the picture to the college. If you gave the mag ALL rights to the pictures and the article, then they have the right to do so.There are laws governing 'intellectual property rights'. Check into them. You may have rights even if you sold them to the mag. ie, use the argument that you sold the pictures and article to them, but you expected them to be put to 'reasonable' use. That is, for the article and no other purpose. They can, of course argue that 'all rights' is 'all rights'. But you have the moral high ground. You should at least contact the college. Inform them of the situation. Tell them that you are prepared to take out the ad as Vincent has suggested. Then find out what they would be willing to pay for the use of your picture, etc. Who knows, they may even want to pay you to outline a whole course for them.First, contact the mag to find out if they sold or 'lent' the picture to the college. If they did not, then the college is guilty of the worst kind of plagiarizm, and can be sued for megabucks.
*Sigan, Ralph could be right on this. A friend who worked for a local paper here told me of a similar situation several years ago. A advertising saleman took a picture out of wherever pictures live and used it in a plastic surgeons' ad for breast enhancement. Turned out the lady was the wife of another local doctor. Lots of people who saw the ad knew who it was. One of those things that was and wasn't funny. Good luck, Joe H
*It seems I've started an interesting wee discussion, perhaps a bit out of the ordinary for this forum. I'm learning a lot here. I hope others are too. But anyway, it's time for me to go to my pit, and I'll check this thread out tomorrow. Many thanks for all your contributions. Sliante.
*Isn't their also some sort of false advertising going on here. the college is showing a piece of furniture as if it was produced and/or designed by them when in fact it wasn't. You would think a college that teaches "fine furniture" making would have a picture of something halfway decent to put in their ad.Ask one of the editors at Taunton for their take on this situation.Pete
*. You would think a college that teaches "fine furniture" making would have a picture of something halfway decent to put in their adWowsers!! Carefull mate! These Scots carry little knives tucked into the socks...they're nearly as bad as Italians for that!
*ROFLMFAOI don't think Pete meant it that way. I think he meant that if the college were any good, they would have something halfway decent of their own to show, and wouldn't have to 'borrow' Sgian's excelent work.
*As I understand it a "copyright" is the legal right to make copies for profit. Sgian sold "first right" to publish in Britain. The school had no rights to make any further copies for profit.In reality, it's common for small advertisers to lift photos and anything they can get their hands on to promote their interests. We can see, however, that is changing in our internet connected world. As caution to all of us, if we have anything that we think might have value some day, put a simple "(c) name of owner, date" behind it and it's copyrighted. Try to avoid using anything that we are unsure of ownership and always get permission in writing from any copyright owner before using their work.
*A couple of years ago the office manager came out to where I was working and took a bunch of pictures ( hey at least she caught me working). Next thing i know there is a picture of me in all of their ads in the newspaper and other publications. I was never asked and certainly never gave written permission to the company for use of my mug. This year my picture is in a big yellow page ad. Only if you study the ad or knew me would you recognize that it is me.I has been thinking about moving on to another local company and think it would be a great embarassment to them to say " joe blow company has the guy thats on the ladder in so and so s ad in their employ now". do I have any rights in this deal?
*Sgian, I am sorry to hear of your situation...and a little envious... ;-) you could stand to make a lot of money here. First of all, if you can prove ownership of the design and photograph...which I think you can you will win in court. This puts you in the admirable position of negociating with the bigger stick. Secondly you are negociating with a comittee, which has to worry about it's reputation throughout this entire affair. The art of war....Read it. Plan your victory and reap the benefits...it is laying there in your lap...you just have to find a bucket large enough for your winnings. In my typical style, I would draft 5 or 6 newspaper and magazine articles to be submitted to national (british), tabloids and rags. Possibly a couple of trade magazines to boot. I would mention that you not only hold the copyright on the design but also the photograph they have inadvertantly nicked. Quite likely the top dogs at the school know nothing of the situation. They will beg to settle. Quite often a large adversary can become skiddish when the heat is turned up...know your arsonel, and use your tools effectively.good luck old friend...L(Why can't I get lucky like that! LMAO)Ohhh and for you that would like to know how to copyright effectively. A typical artist's copyright for music or original work is to mail a copy to yourself. This proves the date completed. Store it somewhere safe. If the court case happens, the judge will open it, and view it, and have it resealed for you. All Rights Reserved c Copyright 2000/Winterburn Group... I think is how it should be written and published. The magazine should have given you credit as the photographer...on the published material. Good luck gang. Now after saying all that...I am going to go look up the legal definition of "First british publishing rights". bbl
*Thanks for the responses folks. All most illuminating so far. I wonder if perhaps I do have a case for I put the copyright symbol right next to all my images on my website. For proof of that you can click on my name above and find a link to it-the website. Look for Cabinet 73 in the Gallery. That was the first time this image was placed in the public domain, which is the case with all the images on my website; they appear there before they appear anywhere else. I presume a website is "publishing," or in "the public domain?" I also took a look at all my correspondence with the magazine that published the article. Nowhere is it spelt out exactly what the sale of these rights implies. They did try to buy the world rights, but I refused to sell those, so they backed off and purchased just the British rights. My invoice for the article included the following statement,* "This constitutes the sale of First British Serial Rights to this article."As far as I can tell, my argument is not with the magazine anyway, but I'll talk to the editor tomorrow you can be certain! Perhaps they too are unaware that my image has been used by another entity to attract potential students. I was simply knobbed off to flick through the magazine and find that the college was using my image to imply or suggest that the piece of furniture is somehow connected to them, which it patently is not! Comparing the image they have used with the one on my website leads me to conclude that is is the exact same photograph! Cheeky buggers!! Sliante.
*Sgian,I believe copyright terms are specifically defined terms ("terms of art") and you have to have specific knowledge of what they mean in a given jusrisdiction.FWIW, I just did a Google search on "first British serial rights." I didn't get anything definitive, although this tidbit is interesting:From a letter on the web at the London Review of Books" (http://www.lrb.co.uk/v21/n02/lett2102.htm)QUOTEFor a long time - ever since newspapers and magazines were commonly known as 'serial publications' - it has been industry custom and practice that, in the absence of any other agreement, the writer is granting 'first British serial rights' to their editor and publisher. 'First' means what it says: the publisher publishes once and that's that. ENDQUOTESo, it looks like you gave the publisher the right to publish the photo once, you did _not_ give them any ownership interest beyond that, such as publishing it again themselves or selling the image to others to publish.BUT: you'd have to talk to a lawyer or someone with expertise in your area to know for sure.Bob
*It's definitely worth pursuing but maybe not at this time. To relate an experience of an acquaintance woodcarver: he designed and carved a belt buckle as one off for a promotion for a client, keeping the copyright to himself when the client didn't want to pay extra for it. The client liked the design and began to produce it in quantity to hand out to customers. The woodcarver wrote to the client and complained that they did not have the right to produce multiple copies of the design. The client ignored him. The woodcarver consulted an attorney and the attorney recommended doing nothing at that time. Reason: the monetary damage suffered by the woodcarver was minimal and any recovery would also be minimal. After several years and many belt buckles the attorney said, "NOW." The woodcarver got a new shop building!
*Sgian Dubh,
View Image © 1999-2000"The first step towards vice is to shroud innocent actions in mystery, and whoever likes to conceal something sooner or later has reason to conceal it." Aristotle
*
life is but a dream shaboom