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Author Topic: Lawsuit Against Us. Fair? Unfair? Need your advice  (Read 39505 times)

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« Reply #125 on: November 11, 2012, 14:48 »
0
Is it possible that all stock agencies could help you out in terms of legal aid/advice seeing as if the ruling comes out in their favor they could then go after every single other agency out there if they were feeling greedy.


« Reply #126 on: November 11, 2012, 14:52 »
+2
....
In this 'case' it happens to be a pair of sunglasses but it could be anything.
....
And if they can, who is responsible for ensuring the correct permissions are in place? The photographer? The distributor? The publisher?

How did you come up with one pair of sunglasses when Yuri's post mentioned no sunglasses but several glasses: "few of the models that we have shot over the years have used their own glasses on shoots"

As well how did you come up with all those theorical questions?

. OK... various pairs of sunglasses.

.......

taking away their vision is one of the funniest things I've read on a forum in a long time. Good luck with that defence.


Who said anything about sunglasses?

If a model has prescribed glasses, this could mean that she/he would not be able to model without taking them off. In fact, without taking her/his vision away. What is so funny about that?

Wow! ... You are so selective in the way you partially quote to take my comments out of context. Is that intentional or do you really only read what you want to read? Either way, there is little point in continuing this discussion.

If your comment is out of context, it is because it is out of context.  I did not make it that way. There could be huge differences between sunglasses and prescribed glasses. You still could be right because Yuri did not specify the type of glasses.  However, the context of his post make it sound like all glasses in general.

No, it is your partial quote of my comment that I'm referring to. Where you partially quote a statement to make it look like I am saying that taking away someone's vision is funny. I am not saying that taking away someone's vision is funny. I am saying that using that as a defence is funny or perhaps I should have said it's not a good argument for this case.

I admit my error on thinking it was sunglasses but I don't believe it would make a difference whether it glasses, sunglasses or even shoes that the company was suing for. After all, you could argue that it would be unfair for someone to remove their shoes before being photographed but that's a silly argument of you need shots of someone barefoot for example. I think it's a weak argument for the purpose of a court case. After all, if the photographer wants a shot without glasses, would the model be so offended if asked to remove them? I don't think so. I am saying that argument wouldn't stand up.

If I was defending myself here I would be arguing that the incidental use of the glasses in an image isn't an infringement of copyright/trademark. And secondary to that, even if it was shown that the incidental use was an infringement, then I would be arguing that it is the publisher of the images and not the photographer that is responsible for ensuring that the necessary permissions are in place. The point being, it isn't Yuri they should be suing. It is the publisher of the images, the end user they should be pursuing if they use them for commercial purposes.

I'm pretty certain that European law places the onus on the publisher not the photographer to ensure that images are fit for purpose. The company suggesting that the photographer is responsible but they can't win on that because the photographer, is only licensing the image, they have no control over it's final specific use and that's what the law says.

The main point being is that the law says it is legal to sell photos even of they do have trademarked items in them, thereby getting Yuri off the hook. The company are simply chancing their arm.

On another note, if Yuri's team of lawyers are saying they aren't optimistic, I would also suggest that he gets another team of lawyers.

Poncke

« Reply #127 on: November 11, 2012, 15:00 »
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Also, are they going after Yuri as photographer or after People Images the agency? Big difference.

ShadySue

« Reply #128 on: November 11, 2012, 15:01 »
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On Alamy everything that needs a PR, i.e. sunglasses, and you dont have one, needs to be sold as RM. Does that make a difference? I mean, its not the photographer being responsible but the buyer for using the photo lawfully. Might it be a problem the images are sold as RF?
No, RF and RM are just different ways of licensing files.
Alamy have chosen not to market unreleased images as RF.

Tryingmybest

  • Stand up for what is right
« Reply #129 on: November 11, 2012, 15:35 »
0
Something that strikes me is "why me"....

Obviously someone is mad that you have "taken" sales revenue from themquite possibly with your new website. Success breeds envy. Envy leads to slander. I don't think they have a chance against you. As others have written, no one will be able to be photographed in anything but generic sheets or nothing.

« Reply #130 on: November 11, 2012, 16:00 »
+1
....
In this 'case' it happens to be a pair of sunglasses but it could be anything.
....
And if they can, who is responsible for ensuring the correct permissions are in place? The photographer? The distributor? The publisher?

How did you come up with one pair of sunglasses when Yuri's post mentioned no sunglasses but several glasses: "few of the models that we have shot over the years have used their own glasses on shoots"

As well how did you come up with all those theorical questions?

. OK... various pairs of sunglasses.

.......

taking away their vision is one of the funniest things I've read on a forum in a long time. Good luck with that defence.


Who said anything about sunglasses?

If a model has prescribed glasses, this could mean that she/he would not be able to model without taking them off. In fact, without taking her/his vision away. What is so funny about that?

Wow! ... You are so selective in the way you partially quote to take my comments out of context. Is that intentional or do you really only read what you want to read? Either way, there is little point in continuing this discussion.

If your comment is out of context, it is because it is out of context.  I did not make it that way. There could be huge differences between sunglasses and prescribed glasses. You still could be right because Yuri did not specify the type of glasses.  However, the context of his post make it sound like all glasses in general.

After all, you could argue that it would be unfair for someone to remove their shoes before being photographed but that's a silly argument of you need shots of someone barefoot for example.

However and again, regarding this case, the biggest difference between shoes and prescribed glasses is the medical element .

The prescribed glasses frame, which could be a form of art, is attached to prescribed lenses that the owner need to see. It is impossible for the glasses owner to separate the frame from the lenses and wear just the lenses without the frame. Therefore, the medical element should be uphold at all cost, above the fashion element. This is not just a fashionable item, above all the lenses attached to the frame are prescribed medical items and therefore absolutely nothing should get in the way of wearing them.

This is not just about one model that would gladly take off her precribed glasses for a shoot, this is about the right to wear your prescribed glasses at all time, regardless of circonstances. This is about the right not to have anyone hendering with your vision at anytime, anywhere regardless of what you do. For the same reason no one should be hendering with the right of wearing hearing aids or denture.

If someone is willing to take off their prescribed glasses for a look that you want, yes it is ok, however If someone is obliged to take off their prescribed glasses just so she/he can continue on as a model, this is totally wrong,  immoral and probably infringing on human right.
« Last Edit: November 11, 2012, 16:09 by cybernesco »

« Reply #131 on: November 11, 2012, 16:02 »
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Obviously someone is mad that you have "taken" sales revenue from themquite possibly with your new website. Success breeds envy. ...

I don't agree. This is political and not about money.

If it so happens that the eyeglass company is indeed owned by Luxottica they don't need the god-knows-how-much they could squeeze out of Yuri.

It's a global leader in a market and all they want to do is make a point.

I feel like Yuri has been chosen as a victim for making this point.

There are thousands of photographers out there making a killing and living by shooting photos of people who happen to wear eyeglasses and out of all of them they choose the "king" of Microstock?

Unless they are currently trying to sue all of the photographers with the same approach like in Yuri's case but haven't announced it publicly.

ShadySue

« Reply #132 on: November 11, 2012, 16:21 »
0
Unless they are currently trying to sue all of the photographers with the same approach like in Yuri's case but haven't announced it publicly.
It may well be that they are concurrently flying the same kite over other agencies but we just don't know about it.

« Reply #133 on: November 11, 2012, 16:47 »
0
F**k, after reading this topic i realize two of my best selling models on SS are wearing Ray-Ban sunglasses. Despite the fact that are no brad logo visible  the shape of this brand of glasses is unique and more certain copyrighted... hmmm :-\ :-\ :-\
« Last Edit: November 11, 2012, 16:49 by nicku »

lisafx

« Reply #134 on: November 11, 2012, 17:04 »
+1

I had an 8 year patent court case that was based on a minor part of a machine, in fact and additional add on, that wasnt necessary all the time. The patent holder originally wanted money as percentage for the whole machine, as if he had invented it all. But instead the judges immediatly said, that he cannot make claims for the whole machine if he is only a patent holder for one of 1000 parts and especially if it is an add on that is not included in the basic model.

Obviously we believed we werent violating his patent at all, but using a different version from 1942 where the patent had already run out. We even had a patent lawyers statement for it.

It is a long story, but in the end the judges decided that our version was still to similar and did infringe on the patent, but the patent was just a very minor part of the machine and thus the guy was only eligible for a few euros per machine, not several hundred as a license fee. He got some money, but probably lost over 50 000 euros in all the legal fees he had to pay. He also had to pay all of my personal lawyers bill, because he lost the case by 97%.



Jasmin, it's great to hear how this was finally resolved.  Sorry you had to pay anything, but at least the cost was minor and he had to pay your court and attorney's fees for bringing such a nuisance suit.  Congratulations!!  I can imagine how happy you must be for this to all be behind you!  :D
« Last Edit: November 11, 2012, 20:54 by lisafx »

« Reply #135 on: November 11, 2012, 17:12 »
0
Thanks!

The long and exhausting court case certainly tested all my ideas about how I want to spend the rest of my life. Ive had many, many court cases when I was in business, it seems to be considered just another tool for some competitors in the market. We won most of them, actually with this case probably all, in the end. But it is very nerve wrecking and weve had some very surprising outcomes over the years. I certainly appreciate a good lawyer. But we also researched as much as we could ourselves. After all it was my case, nobody will protect me as much as I can protect myself. Lawyers will make their money irrepective of wether you win or you lose. But I did have an exceptionally good lawyer.

One of the reasons I went exclusive with istock, was so that they deal with all the legal stuff and run after the customers money. If you spread your files, it becomes a lot more difficult to follow things up.

But from what I hear in this industry court cases are actually quite rare. This is the first big case I hear of. In the last industry I worked in staying informed on all things legal in our field was mandatory.  And a lot of stuff was so difficult and new, you could never really have a guarantee that everything you did was legally correct.

So now I shoot my still life and the occasional model in peace. Will try to make sure they dont wear glasses...
« Last Edit: November 11, 2012, 17:21 by cobalt »

Ed

« Reply #136 on: November 11, 2012, 17:57 »
0
On Alamy everything that needs a PR, i.e. sunglasses, and you dont have one, needs to be sold as RM. Does that make a difference? I mean, its not the photographer being responsible but the buyer for using the photo lawfully. Might it be a problem the images are sold as RF?

This is a good point - the difference between the micros and Alamy is the EULA.  On the micros, the photographer warrants that everything is released....on Alamy, the responsibility is with the buyer in the usage of the image.  I realize that doesn't answer the RM/RF question (which there really isn't a difference) but that may be an option for Yuri going forward - change the EULA so it reads more like Alamy's than it does Shutterstock's or Dreamstime's.

« Reply #137 on: November 11, 2012, 19:14 »
0
"However and again, regarding this case, the biggest difference between shoes and prescribed glasses is the medical element ."

I really think you're imagining this as an important element in this discussion.

lisafx

« Reply #138 on: November 11, 2012, 20:52 »
0
Sorry - the sunglasses thing is probably my fault.  The IS thread I linked to is about a sunglasses company that provided their wares to interested IS contributors to shoot.  Just showing that there is opportunity to secure the right permissions in the right place or right time.

I remember that.  I still have some of those sunglasses.  They were also kind enough to send some reading glasses with various frame styles.  Those are what I use when I do a shoot requiring glasses.  Although my vision is getting bad so I may start using those reading glasses myself :)

« Reply #139 on: November 11, 2012, 22:44 »
0
"However and again, regarding this case, the biggest difference between shoes and prescribed glasses is the medical element ."

I really think you're imagining this as an important element in this discussion.

I really think you're imagining this is not an important element in this discussion.

RacePhoto

« Reply #140 on: November 11, 2012, 22:57 »
0
Has nothing to do with fair. It's just wrong!

Someone at a big unnamed company that owns pretty much everything in eye wear, wants to flex their muscles and protect their product exclusive designs. That's what it's about. Usually these cases the company will come after someone like me or a small independent, who can't possibly mount a defense. The idea is, they have a history of protecting their trademark.

Problem is, the eye wear is the same as shoes, a hat, a belt, a purse, and clothes and the buttons on a dress. It's not the subject. Unless someone is selling just images of the glasses or using the brand name. It's going to be difficult to say, there is any infringement.

Think about this. Someone shoots a photo of the busy traffic on the highway and every car maker sues. This case is overboard and there's always hope that the court will not only charge the company filing the complaint for all the court costs for Yuri, but also fine them for a frivolous lawsuit.

Only people making out on this are the attorneys as usual.

« Reply #141 on: November 12, 2012, 01:33 »
+2
This is very disappointing news for all stockers.

If i were in your shoes Yuri, i would not settle out of court, but face this head on and fight on principle.

I would start by drafting up a letter to all the stock sites you distribute through, asking for legal/financial backing, this is just as much their case, as yours. I would then create a donation link for all stockers to contribute to, a loss from this case this will effect us all. Thirdly i would hire a fantastic PR advisor to get the news of this disgraceful case out to the public eye for when the case goes live. This in turn will put pressure on the claimant to drop the case for fear of a consumer backlash.


« Reply #142 on: November 12, 2012, 02:14 »
0
Good advice.

Best would be to find some of your pictures in use that promote their glasses, in their shops or on the net.
If you can find such one, their case is dead.

« Reply #143 on: November 12, 2012, 02:28 »
0
Problem is, the eye wear is the same as shoes, a hat, a belt, a purse, and clothes and the buttons on a dress. It's not the subject. Unless someone is selling just images of the glasses or using the brand name. It's going to be difficult to say, there is any infringement.

Think about this. Someone shoots a photo of the busy traffic on the highway and every car maker sues. This case is overboard and there's always hope that the court will not only charge the company filing the complaint for all the court costs for Yuri, but also fine them for a frivolous lawsuit.
You'd be right if the glasses were an unimportant part of the image, but some of Yuri's photos show a tight closeup of a woman wearing designer glasses, were the glasses are definitely the main subject.  Even the caption is something like "attractive young woman wearing designer glasses".  Possibly the court case is only about these closeups.  I've even seen photos by Yuri were the woman is photographed twice, once with and once without glasses, which means that for that particular model, he cannot claim she is not able to work without her glasses.

MetaStocker

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« Reply #144 on: November 12, 2012, 02:29 »
0
Don't shoot the messanger but i guess this lawsuit however it turns out could be a nice and well deserved smack in the face for the RF industry.

I also see some potential for pushing agencies into being more restrictive and taking more seriously the legal aspects of selling images, they will also realize they can't possibly run these risks while selling the images for a pittance as they do now.


MetaStocker

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« Reply #145 on: November 12, 2012, 02:35 »
0
As for the glasses : the eyeglass company is right because these images would have never sold well if the author used some cheap 1$ chinese plastic glasses, these photos are so successful because the girls look good AND the glasses look good, the author makes money while giving nothing back to eyeglass company, it's not fair no matter if the logo is not visible the design might be unique and easily recognizeable, which indeed is the same logic for previous lawsuits about jeans or cars.

« Reply #146 on: November 12, 2012, 04:53 »
0
As for the glasses : the eyeglass company is right because these images would have never sold well if the author used some cheap 1$ chinese plastic glasses, these photos are so successful because the girls look good AND the glasses look good, the author makes money while giving nothing back to eyeglass company, it's not fair no matter if the logo is not visible the design might be unique and easily recognizeable, which indeed is the same logic for previous lawsuits about jeans or cars.

Sorry, I don't know Yuri, but I can assure you that I've sold lots of photos of models wearing cheap chinese glasses. Cheap chinese glasses can be fragile and don't last years (not even months, sometimes not even weeks) but, when new, for photographic purposes, are ok.

OM

« Reply #147 on: November 12, 2012, 05:35 »
+1
Problem is, the eye wear is the same as shoes, a hat, a belt, a purse, and clothes and the buttons on a dress. It's not the subject. Unless someone is selling just images of the glasses or using the brand name. It's going to be difficult to say, there is any infringement.

Think about this. Someone shoots a photo of the busy traffic on the highway and every car maker sues. This case is overboard and there's always hope that the court will not only charge the company filing the complaint for all the court costs for Yuri, but also fine them for a frivolous lawsuit.
You'd be right if the glasses were an unimportant part of the image, but some of Yuri's photos show a tight closeup of a woman wearing designer glasses, were the glasses are definitely the main subject.  Even the caption is something like "attractive young woman wearing designer glasses".  Possibly the court case is only about these closeups.  I've even seen photos by Yuri were the woman is photographed twice, once with and once without glasses, which means that for that particular model, he cannot claim she is not able to work without her glasses.

Think you've hit the nail on the head there. I must say that I hadn't taken the trouble to look at Yuri's images of girls wearing glasses but it's clear that some images appear almost as if they're advertising shots for the glasses themselves. And any large design company wouldn't want that.
They design and market their product along the lines of their clearly defined marketing strategy. They determine how their design is presented for sale and can control every aspect of the image-making process.......until 'unapproved' images from microstockers start turning up in the marketplace.
Whilst Yuri's images maybe excellent images of an attractive person wearing their 'frames' it's not their photo and they want control over every part of the process. From a corporate point of view, a monopoly is the highest form 'enterprise'.

(As an aside, I have a bro-in-law that works for an importer of the top/hot studio flash equipment maker and he reports that whereas the average photostudio is closing down, they are now making their money from the designer clothing/accessory brands that are setting up their own 'in-house' studio's so that they have absolute control over the images of their wares that reach their target group).

Edit: Should the company win the case, it's going to cause huge problems for the stock industry as a whole. All the big microstock names have similar images in their portfolios and who will decide which images infringe whatever it is they're purported to be infringing. A general takedown of all images with spectacle frames by the agencies would ensue, just to be safe. And in a broader sense, any product (used in an image to show a 'concept') has been designed by someone. The designer/producer of that product could claim that they didn't approve the use of their product in that way and have the image (and all similar images) taken down. A very slippery slope indeed.
« Last Edit: November 12, 2012, 06:24 by OM »

ShadySue

« Reply #148 on: November 12, 2012, 06:04 »
0
Problem is, the eye wear is the same as shoes, a hat, a belt, a purse, and clothes and the buttons on a dress. It's not the subject. Unless someone is selling just images of the glasses or using the brand name. It's going to be difficult to say, there is any infringement.

Think about this. Someone shoots a photo of the busy traffic on the highway and every car maker sues. This case is overboard and there's always hope that the court will not only charge the company filing the complaint for all the court costs for Yuri, but also fine them for a frivolous lawsuit.
You'd be right if the glasses were an unimportant part of the image, but some of Yuri's photos show a tight closeup of a woman wearing designer glasses, were the glasses are definitely the main subject.  Even the caption is something like "attractive young woman wearing designer glasses".  Possibly the court case is only about these closeups.  I've even seen photos by Yuri were the woman is photographed twice, once with and once without glasses, which means that for that particular model, he cannot claim she is not able to work without her glasses.

Think you've hit the nail on the head there. I must say that I hadn't taken the trouble to look at Yuri's images of girls wearing glasses but it's clear that some images appear almost as if they're advertising shots for the glasses themselves. And any large design company wouldn't want that.
They design and market their product along the lines of their clearly defined marketing strategy. They determine how their design is presented for sale and can control every aspect of the image-making process.......until 'unapproved' images from microstockers start turning up in the marketplace.
Whilst Yuri's images maybe excellent images of an attractive person wearing their 'frames' it's not their photo and they want control over every part of the process.

Yup, Yuri ~ that will certainly put you at more risk than if it had just been people wearing specs while engaged in normal pursuits, where the specs were a very incidental part of the image.

ShadySue

« Reply #149 on: November 12, 2012, 06:06 »
0
As for the glasses : the eyeglass company is right because these images would have never sold well if the author used some cheap 1$ chinese plastic glasses, these photos are so successful because the girls look good AND the glasses look good, the author makes money while giving nothing back to eyeglass company, it's not fair no matter if the logo is not visible the design might be unique and easily recognizeable, which indeed is the same logic for previous lawsuits about jeans or cars.
You'd better check the entire catalogue and back catalogue of the Italian maker in case the Chinese specs are rip-offs of some of their designs. Then you could be caught in the middle, and you'll be easier to chase than the rip-off merchants (if they are such).

Sorry, I don't know Yuri, but I can assure you that I've sold lots of photos of models wearing cheap chinese glasses. Cheap chinese glasses can be fragile and don't last years (not even months, sometimes not even weeks) but, when new, for photographic purposes, are ok.


 

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