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Author Topic: Lawsuit Against Us. Fair? Unfair? Need your advice  (Read 39514 times)

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« Reply #25 on: November 10, 2012, 10:02 »
0
In Denmark. Good.
Then law and not lawyer will be important, and that is good.

The copyright law was originally made to protect a work to not be copied for a certain period of time, so the inventor could earn his money back.
You have not produced glasses, and they can still earn their money, your photos actually promotes them. You have not stolen anything and have not been exploiting any of their idears (and you can prove that, by showing your pictures with a percentage of glasses). The glasses is a minor detail and not important in the picture that mainly expresses an expression or a situation.

Then remember they have to prove their case.
And what is it? Violation of copyright?
You have not produced any glasses of that shape. You have not used their trademark.
Undermining their sales?
You have promoted if, if any.

And who are the parties in the case?
You as a photographer, a named person and a distributor? The legal entity "Peoples photos"?
OK then, but what has peoples photos done wrong, that they can sue you for? That needs to be very clear.

Then its always a good thing, to let them bear the burden of evidence. Like having them say which pictures, and where they found them, then might have downloaded illegally.

Dont get too stirred up, they might not have a case. And if they have, it might not be expensive, since they cannot realy prove much damage.
They might have a case against a competitor who used one of your photos to promote copycat glasses. But thats not you. You just take the photos and distribute them.

Precedens might be sought in Nike shoes and the little mermaid.


Then.. Fishermen and farmers in Denmark, in the old days, never caught anything and crops always failed.
You can never hear a fisherman say he had a good catch.
That was for a reason.
« Last Edit: November 10, 2012, 10:18 by JPSDK »


« Reply #26 on: November 10, 2012, 10:22 »
0
"your photos actually promotes them"

Just like with us and Pinterest, it is not up to you to decide whether 'free advertising' is something wanted.

« Reply #27 on: November 10, 2012, 10:23 »
0
Oh I forgot.
Do not provide them with evidence, be carefull what you write.

« Reply #28 on: November 10, 2012, 10:24 »
+4
Couple of thoughts. You could choose to fight on principle - I am entitled to use your product as an insignificant prop in an image that is about something else - or on the details - those aren't your glasses.

I would have someone start scouring all the cheap places that sell knock-off products with no brand names that are designed to look like famous stuff. I'm assuming if this type of eyewear is popular (like Sarah Palin's glasses) then there'll be plenty of cheap imitations available. If your lawyers had 10 examples of glasses that were just like the brand name ones to show their lawyers and asked them how they planned to prove that the glasses in your images had the brand name items in them, perhaps they'd decide this was not worth their time.

Of course you would want to remove all references from the web that admitted you had used the designer glasses if you wanted to pursue this approach :)

And, I'd insist on using cheap knockoff eyeglasses in all future shoots, not the model's own expensive stuff

« Reply #29 on: November 10, 2012, 10:25 »
0
"your photos actually promotes them"

Just like with us and Pinterest, it is not up to you to decide whether 'free advertising' is something wanted.

It is an argument.
They might or might not want, but it is an argument against that they loose money, value, brand or whatever.
Arguments count in court.

« Reply #30 on: November 10, 2012, 10:32 »
0
Not being able to control the exposure of their product, including the people used in the advertising with it, is an argument.  Spreading images of a zombie with their eyewear would not be beneficial.

Anyways, if that was an argument, I'd rent a Ferarri and use it, as it is 'promoting the product'.  If anything, he could be reducing the value because 'joe average in every image wears these'.  No exclusive or luxury panache anymore.

« Reply #31 on: November 10, 2012, 10:42 »
0
Something that strikes me is "why me". Should they not be suing the agencies that have actually sold these images? If the case is to stop the sales of their brand on stock sites, then why are they targeting me? In case they win all I can really do is make sure not to use their Glasses in any images in the future, but I can't demand a take-down on jurisdictions where this brand might not even have a design trademark filling? Makes sense?
Is the right procedure not to contact each of the agencies and demand that images showing their design be taken down?

my guess is that they think you are an individual and less likely to have expensive lawyers and more likely to say 'oh no' and just pay up, rather than fight it :)

I would have thought though that is like any image usage, it comes down to what the final user does with it. I have editorial images, if someone licences one and uses it commercially that isnt (or at least shouldnt) be my problem.  I cant see how they can sue the photographer.

you could always say they are cheap chinese brands (who  ripped off the design ;)



« Last Edit: November 10, 2012, 10:45 by Phil »

« Reply #32 on: November 10, 2012, 10:45 »
0
Yuri this case is absolutely ridiculous!
I hope you will win in court and crush them. If you loose what next? Clothing companies will follow?
Wish you the best!

« Reply #33 on: November 10, 2012, 10:48 »
0
Not being able to control the exposure of their product, including the people used in the advertising with it, is an argument.  Spreading images of a zombie with their eyewear would not be beneficial.

Anyways, if that was an argument, I'd rent a Ferarri and use it, as it is 'promoting the product'.  If anything, he could be reducing the value because 'joe average in every image wears these'.  No exclusive or luxury panache anymore.

If you are massproducing material goods and put them on people, they are going to be photographed, since people photograph eachother.
point is, that the photographing does not take value out of the good.
And that goes for Ferrari also.


« Reply #34 on: November 10, 2012, 10:52 »
0
...

I would have someone start scouring all the cheap places that sell knock-off products with no brand names that are designed to look like famous stuff. I'm assuming if this type of eyewear is popular (like Sarah Palin's glasses) then there'll be plenty of cheap imitations available. If your lawyers had 10 examples of glasses that were just like the brand name ones to show their lawyers and asked them how they planned to prove that the glasses in your images had the brand name items in them, perhaps they'd decide this was not worth their time.

...

this is the best advice so far imo, how can they prove that the glasses in the photo actually theirs? let's say that you bought these glasses in Thailand flea market with a cheap brand name, the actual people violated their glasses design copyright is the glasses maker, not you.

i would never settle this type case outside courthouse though.

« Reply #35 on: November 10, 2012, 10:53 »
0
"If you are massproducing material goods and put them on people, they are going to be photographed, since people photograph eachother."

We aren't talking about just people photographing each other.  We are really discussing using the content for commercial use in advertising.

« Reply #36 on: November 10, 2012, 11:05 »
0
Right.
Point is they dont collide.
People are photographed with shooes and glasses.
The shoe and glasses producers do not lose money because their products are photographed.
If they did not want them to be photograpohed, or spilled on, or thrown in canals they could keep their product in the basement and never sell them.

A photograph is not a material product, it is no copy of the product, but a collection of pixels that produce an image of something. The product, that someone distributed so eagerly, and was already paid for, might be illustrated in the picture.

« Reply #37 on: November 10, 2012, 11:28 »
+1
Seems to me that a court finding in favor of the eyeglass company would be opening a slippery slope. That would mean that any image with an "object" in it would be subject to design infringement.
« Last Edit: November 10, 2012, 11:45 by rimglow »

EmberMike

« Reply #38 on: November 10, 2012, 11:28 »
0
...Is it fair that a photographer that removes all trademarks, now have to risk being sued because of "design"in something as generic as glasses...

It's ridiculous and it will kill this industry. We've seen this stuff happen before with jeans, particular jeans manufacturers not wanting their products in stock images. Then cars. Now glasses. What's next?

I read a lot of design magazines and I always see those ads run by the air freshener company, the one with the car air fresheners shaped like trees. They run these ads to let people know that the tree shape is trademarked and can't be used in any designs without a license. And while I appreciate them spending money to inform designers, I think the ads come across as obnoxious and the notion that a stupid air freshener tree shape needs a license to use in a design is absurd to me. I'd never license an air freshener design, if only because I find the efforts they go to to be so excessive, to protect something that is so mundane and everyday.

What's next? We need to license everything that appears in a design, a photo, an illustration, etc? The clothes, the furniture, the brand of lightbulbs? Next thing you know, a carpet manufacturer will identify a particular weave of carpet in a stock photo and start suing people.

It's sad, but stuff like this will force talented artists out of this business. It's already hard to keep photo shoots within tight budgets for microstock. Having to do all of this additional research, contacting product manufacturers to check on legal protections, etc., will make it impossible to work anymore.
« Last Edit: November 10, 2012, 11:32 by EmberMike »

« Reply #39 on: November 10, 2012, 11:29 »
0
Right.
Point is they dont collide.
People are photographed with shooes and glasses.
The shoe and glasses producers do not lose money because their products are photographed.
If they did not want them to be photograpohed, or spilled on, or thrown in canals they could keep their product in the basement and never sell them.

A photograph is not a material product, it is no copy of the product, but a collection of pixels that produce an image of something. The product, that someone distributed so eagerly, and was already paid for, might be illustrated in the picture.

Yes, however, you've slid from "but it's free advertising" which is not a valid argument, imo, to "we aren't selling copies of the product", which I agree with.

« Reply #40 on: November 10, 2012, 11:40 »
0
Eyeglasses have been made for centuries. The invention of eyeglasses goes back to the 13th centuries. The earliest pictorial evidence for the use of eyeglasses is Tommaso da Modena's 1352 portrait of the cardinal Hugh de Provence reading in a scriptorium.

http://en.wikipedia.org/wiki/Glasses

Billions of them have been made ever since. Thousands of shapes and colors have been created.  I wear cheap 20 dollars reading glasses. If models wear a generic shape and color, how can someone prove beyond any doubt that it is not something from 1895, 1952 or 1999.

Denis 
« Last Edit: November 10, 2012, 11:48 by cybernesco »

CarlssonInc

« Reply #41 on: November 10, 2012, 11:57 »
0
Problem is that Yuri already admitted to using design trademarked glasses without a property release.

From his original post:

"I can't mention their name here until the case opens to the public. The problem is that quite a few of the models that we have shot over the years have used their own glasses on shoots, which then turn out to of this particular brand and are "design trademarked".

Fully agree though that it is ridiculous and hard to keep up with what is not allowed - although generally it is good to stay away from "brand" anything or PS . out of them. Hopefully Yuri is somewhat insured against lawsuits or legal fees

Also is the lawsuit only against Yuri, excluding all the agencies that are/have been actively selling them - don't they have ANY responsibility as an agent? It all sounds like a fishing expedition to me, but who knows.
« Last Edit: November 10, 2012, 12:00 by CarlssonInc. Stock Imagery Production »


« Reply #42 on: November 10, 2012, 11:57 »
0
A quick reminder to all readers, that Dan Heller already wrote at length about photographs of trademarked items:
http://www.danheller.com/model-release-copyrights.html

w7lwi

  • Those that don't stand up to evil enable evil.
« Reply #43 on: November 10, 2012, 12:12 »
0
Would it make any difference that the models supplied their own personal glasses, rather than Yuri supplying them?  How about a counter suit demanding the manufacturer include instructions to the consumer, along with the product, to the effect that this product may not be used for any commercial purpose other than the purpose for which it was designed.  Warn the consumer they may not be photographed while using the product or they could face legal action.  Lord knows there are enough idiotic warnings out there right now, such as warnings on cans of peanuts that state "WARNING:  This product may contain peanuts."

« Reply #44 on: November 10, 2012, 12:20 »
0
My guess is the company in question is  Luxottica. They're notoriously aggressive. They bullied Oakley into being bought out by them, for example. http://www.luxottica.com/en/

« Reply #45 on: November 10, 2012, 12:32 »
+1
There are absolutly no reason why anyone should be prevented from wearing their precription glasses at anytime for the same reason you would not prevent someone from wearing their prescribed hearing aids or denture. There are absolutly no reason why anyone should be prevented from working as a model just because he/she is wearing precribed glasses for the same reason you would not prevent someone to be a model just because he/she is wearing denture or an hearing aid.

Denis

« Reply #46 on: November 10, 2012, 12:41 »
0
There isn't any law in Denmmark against people or companys making frivolous threats or demands?

« Reply #47 on: November 10, 2012, 12:45 »
0
The only other thing I can think off, but that surely your lawyers already now - have they ever defended their brand in a similar court case before? And for how many years have your files been online? And how many other images are out there with their glasses by other photographers. You might be able to negotiate a different settlement if you can prove that their glasses have been widely used for years in advertising by many different artists and companies without them ever taking any action.

If you have a trademarked designed you are also required to protect it actively, i.e. by suing a lot. Which is why companies like Apple, Hermes, Ferrari are always in court. If they stoop suing, there are clauses that the design loses value and can finally be used freely. The details depend on the different countries.

What this might be bring is that you are only liable for files from the last 3 years instead of the last 10 for example, which would lower your risk and the value of the court case as a whole.

ShadySue

« Reply #48 on: November 10, 2012, 13:02 »
0
Something that strikes me is "why me".
Because you're so high profile, and apparently so successful.

« Reply #49 on: November 10, 2012, 13:03 »
0
Youre all leading him up the garden path. None of you have ever been in this situation and will never be. So just dont say anything,  rather just be quiet.


 

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