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Author Topic: Lawsuit Against Us. Fair? Unfair? Need your advice  (Read 39510 times)

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« Reply #50 on: November 10, 2012, 13:07 »
0
Law and common sense aren't always seen together. The glasses become part of the appeal of the image. Whether this is good or bad is another question. For the longest time I used Apple products in images with no problems as long as the logo was not visible. I still brush out the Nike swish, not the shoe. That too seems acceptable. As far as agency lawyers are concerned anyway. But a lawsuit could quickly change all that for everyone. I hope the case goes nowhere but like I said, common sense has little to do with it.


« Reply #51 on: November 10, 2012, 13:09 »
+1
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.

Except that he asked for advice and anything that people think is relevant. So that's what he's getting, good or bad.

My own view is that there is more to the story that hasn't been revealed.

Yuri, shouldn't your lawyers be advising you not to discuss this case at all, especially in a public forum?
« Last Edit: November 10, 2012, 13:12 by pjmorley »

« Reply #52 on: November 10, 2012, 13:10 »
0
...Anyway, the reviewers at the agencies accepted the pictures, then they should have more knowledge about the industry. They have the final say! so its their problem,  not yours. Bad judgement on their behalf ( since they should be trained to lookout for this,  their agencies claim they are trained, right? ).

I would spin on that line, you havent got the final say but the agencies.

Don't think that will work.  Reviewers are very low paid, so they aren't going to be experts.  Have you ever read the sites contributor agreements?  They all seem to have an indemnification clause.  Have a look at section 12 of the Shutterstock submitters TOS as an example.
http://submit.shutterstock.com/tostos.mhtml

I don't know if that has ever been tested.  It doesn't seem fair that we should have to be legal experts and I think the responsibility should be with the buyers, as all we are selling is a license to use our images.  The buyer should check that the image is suitable for the use they want.

ShadySue

« Reply #53 on: November 10, 2012, 13:16 »
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There's always the context in which the purchased photo might be used.
However, in editorial use, it would be perfectly fine (if true) to use an isolated photo of a pair of glasses, with logo, and say "X glasses are badly made and fall apart in a short time" or "Y glasses are made in sweatshops in Z country, and the materials used are making the workers ill".
Just like for a while it was common (in the UK) on the news or in newspapers to see criminal-types wearing real or rip-off Burberry scarves or hats, which certainly lowered the value of that brand which positions itself in the luxury market.
It's hard to see how a commercial use of the image could be worse than examples like the above two editorial examples. Unless it was one of these negative comparison adverts that seem to be illegal in the UK. And then surely the onus would be on the advertiser to prove their point.
But again IANAL, common sense doesn't always apply and the Law is often an Ass.

« Reply #54 on: November 10, 2012, 13:22 »
0
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
Absolutely true!  Denmark probably has (like Belgium) a law against discrimination.  That is against discriminating people for anything, including what they wear.   If we start hiring ONLY models without glasses, that would be discriminating and against this law.  You can hardly expect Yuri to order generic brandless glasses for every model he hires.

« Reply #55 on: November 10, 2012, 13:22 »
0
It is my understanding that you do not need permissions to make images available for sale. It is the responsibility of the publisher to ensure that permissions to use the image are in place.

ShadySue

« Reply #56 on: November 10, 2012, 13:24 »
0
It is my understanding that you do not need permissions to make images available for sale. It is the responsibility of the publisher to ensure that permissions to use the image are in place.
It may depend on the agency t&c. E.g. iStock advertises that their images are 'safe', where Alamy clearly puts the onus on the buyer.

« Reply #57 on: November 10, 2012, 13:26 »
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It is my understanding that you do not need permissions to make images available for sale. It is the responsibility of the publisher to ensure that permissions to use the image are in place.
It may depend on the agency t&c. E.g. iStock advertises that their images are 'safe', where Alamy clearly puts the onus on the buyer.

In which case it is the agency that is taking responsibility if they claim the images are 'safe'. However, within the context of the original question, unless Yuri has made that claim on his own website, he is merely making the images available for sale and the responsibility then falls to the publisher or to other agencies making those claims for his images.

But as I said. Perhaps there is more to this story than has been revealed so far.

« Last Edit: November 10, 2012, 13:29 by pjmorley »

« Reply #58 on: November 10, 2012, 13:27 »
0
Can you suggest us which glass company we should recommend our models to use/buy? If you cannot tell us this company name, you can probably help us not to choose this one.

« Reply #59 on: November 10, 2012, 13:29 »
0
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
Absolutely true!  Denmark probably has (like Belgium) a law against discrimination.  That is against discriminating people for anything, including what they wear.   If we start hiring ONLY models without glasses, that would be discriminating and against this law.  You can hardly expect Yuri to order generic brandless glasses for every model he hires.

That's a nonsense argument.  Like saying you can't discriminate against a model driving his Ferrari in an image talking on an iPhone at the same time.  Obviously we choose models because they fit the target audience we are aiming at.  Otherwise, Yuri would have to use anyone that walked in the door, and not slim, modern, attractive models, wearing glasses to give them an air of "intelligence" or other subconscious reason.

« Reply #60 on: November 10, 2012, 13:31 »
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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.

Except that he asked for advice and anything that people think is relevant. So that's what he's getting, good or bad.....


Indeed

ShadySue

« Reply #61 on: November 10, 2012, 13:36 »
0
It is my understanding that you do not need permissions to make images available for sale. It is the responsibility of the publisher to ensure that permissions to use the image are in place.
It may depend on the agency t&c. E.g. iStock advertises that their images are 'safe', where Alamy clearly puts the onus on the buyer.

In which case it is the agency that is taking responsibility if they claim the images are 'safe'.

Not at all. iStock's ASA says, inter alia:
" The Supplier acknowledges that iStockphoto prohibits any Content or any other material that infringes on any patent, trademark, copyright, trade secret, right to privacy, right to publicity, or any other applicable law or proprietary right to be uploaded to the Site.
By uploading Content, you are warranting that you own all proprietary rights, including copyright, in and to the Content with full power to grant the rights contemplated in this Agreement. ... You also warrant that where required by applicable law, you have also obtained a valid and binding release in substantially the same form as [property release] relating to any identifiable property contained in the Content that might sensibly lead to the identity of or be required by the owner of such property to permit the broad uses, including commercial use, of Accepted Content by iStockphoto and its Distribution Partners customers. ...
The Supplier agrees that neither iStockphoto nor any of its directors, officers, employees, partners, affiliates or agents shall be liable for any damages, whether direct, indirect, consequential or incidental, arising out of the use of, or the inability to use any Content or Description Information, or any error, omission or other matter relating to a model or property release respecting Content or Descriptive Information.

« Reply #62 on: November 10, 2012, 13:42 »
0
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
Absolutely true!  Denmark probably has (like Belgium) a law against discrimination.  That is against discriminating people for anything, including what they wear.   If we start hiring ONLY models without glasses, that would be discriminating and against this law.  You can hardly expect Yuri to order generic brandless glasses for every model he hires.

That's a nonsense argument.  Like saying you can't discriminate against a model driving his Ferrari in an image talking on an iPhone at the same time.  Obviously we choose models because they fit the target audience we are aiming at.  Otherwise, Yuri would have to use anyone that walked in the door, and not slim, modern, attractive models, wearing glasses to give them an air of "intelligence" or other subconscious reason.

However the difference between an iPhone and prescribed glasses is that glasses could be a necessity so that the model does not fall down when she/he walks. If that is the look you want with her/his glasses, are you going to exchange her/his good prescribed glasses for a pair of non-prescribed glasses?

« Reply #63 on: November 10, 2012, 13:46 »
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/


That is my guess.
http://en.wikipedia.org/wiki/Luxottica

If so, these guys are ruthless, funded and ready (and looking) for a fight. We will need to know more before we can give advice. Are they seeking damages or a simple request to remove images? Lawsuits are expensive. You may end up winning the battle but losing the war.

lisafx

« Reply #64 on: November 10, 2012, 13:52 »
0
I hope you're successful fighting this Yuri.  It seems like BS to me.  This glasses company should be thrilled their glasses are getting so much exposure. 

I am certain that you are only being targeted because they assume you have deep pockets. 

Best of luck with this. 

« Reply #65 on: November 10, 2012, 13:56 »
+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
Absolutely true!  Denmark probably has (like Belgium) a law against discrimination.  That is against discriminating people for anything, including what they wear.   If we start hiring ONLY models without glasses, that would be discriminating and against this law.  You can hardly expect Yuri to order generic brandless glasses for every model he hires.

That's a nonsense argument.  Like saying you can't discriminate against a model driving his Ferrari in an image talking on an iPhone at the same time.  Obviously we choose models because they fit the target audience we are aiming at.  Otherwise, Yuri would have to use anyone that walked in the door, and not slim, modern, attractive models, wearing glasses to give them an air of "intelligence" or other subconscious reason.

However the difference between an iPhone and prescribed glasses is that glasses could be a necessity so that the model does not fall down when she/he walks. If that is the look you want with her/his glasses, are you going to exchange her/his good prescribed glasses for a pair of non-prescribed glasses?

I guess what I am trying to say is that no one should have the right to take someone else vision away at any cost, for any reason and for any amount of time.

« Reply #66 on: November 10, 2012, 13:58 »
0
It is my understanding that you do not need permissions to make images available for sale. It is the responsibility of the publisher to ensure that permissions to use the image are in place.
It may depend on the agency t&c. E.g. iStock advertises that their images are 'safe', where Alamy clearly puts the onus on the buyer.

In which case it is the agency that is taking responsibility if they claim the images are 'safe'.

Not at all. iStock's ASA says, inter alia:
" The Supplier acknowledges that iStockphoto prohibits any Content or any other material that infringes on any patent, trademark, copyright, trade secret, right to privacy, right to publicity, or any other applicable law or proprietary right to be uploaded to the Site.
By uploading Content, you are warranting that you own all proprietary rights, including copyright, in and to the Content with full power to grant the rights contemplated in this Agreement. ... You also warrant that where required by applicable law, you have also obtained a valid and binding release in substantially the same form as [property release] relating to any identifiable property contained in the Content that might sensibly lead to the identity of or be required by the owner of such property to permit the broad uses, including commercial use, of Accepted Content by iStockphoto and its Distribution Partners customers. ...
The Supplier agrees that neither iStockphoto nor any of its directors, officers, employees, partners, affiliates or agents shall be liable for any damages, whether direct, indirect, consequential or incidental, arising out of the use of, or the inability to use any Content or Description Information, or any error, omission or other matter relating to a model or property release respecting Content or Descriptive Information.

Yes but terms and conditions aren't the law. They are always written heavily in favour of the company but they don't have legally binding status if they contradict the law and that has to be tested.


« Reply #67 on: November 10, 2012, 14:04 »
0
BTW, doesn't the agencies have any responsibility? It's THEM who accepted the images even if they contained trademarked elements...?

« Reply #68 on: November 10, 2012, 14:06 »
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.

on the rocks?

WarrenPrice

« Reply #69 on: November 10, 2012, 14:24 »
0
Send them the images along with an invoice for the commercial product shot. 

« Reply #70 on: November 10, 2012, 14:26 »
0
This is all about photographing property and/or the need for Property Releases (I suspect Yuri didn't get a property release from the glasses source). There seem to be numerous opinions that Property Releases are not (never?) required in various countries around the world.  Here are a few references.  Of course the laws vary by country.  Property Release may be different than Copyright/Trademark regulations.

Property Releases
http://www.photoattorney.com/?p=401

Property Releases not Needed
http://www.photoattorney.com/?p=75

Threats
http://www.photoattorney.com/?p=121

Houseboat
http://dearrichblog.blogspot.com/2008/11/your-houseboat-my-sculpture_16.html

Free use of people, Places, Things
http://centerforsocialmedia.org/sites/default/files/free_use.pdf
House in Advert
http://www.photoattorney.com/?p=1561

Photos of Property
http://www.photoattorney.com/?p=1118

Legal issues
http://www.photoattorney.com/?p=267

Valid Claim?
http://www.photoattorney.com/?p=147


« Reply #71 on: November 10, 2012, 14:33 »
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Yuri, there is a high chance you're dealing with a company that is owned by Luxottica (as mentioned before).

If so and you haven't seen this short documentary (by 60 minutes) I urge you to watch it:
Sticker shock: Why are glasses so expensive?


or (if it's blocked in your country) - http://www.styleite.com/media/luxottica-60-minutes/

This company is ruthless and don't expect an easy way out of this as they took down Oakley like nothing.

Their legal leverage is huge.

I wish I could provide you with better support. Good luck to you!

« Reply #72 on: November 10, 2012, 14:35 »
0
"I guess what I am trying to say is that no one should have the right to take someone else vision away at any cost, for any reason and for any amount of time. "

If the look needed requires no glasses, the person who needs glasses can't participate.  Easy enough.  That isn't discrimination.

« Reply #73 on: November 10, 2012, 14:45 »
0
I like the medical argument. I would definately get some copies of the doctors prescription for some models. Although the model can of course freely chose their glasses, yuri can indeed not be expected to provide free generic glasses with the right prescription at every shoot. If the model was a one legged amputee using a prosthetique, should they be required to remove their designer leg?

Glasses that are medially required are not the same as a normal designer accessoire. Very interesting.

If at least the case can be limited to sunglasses, versus all glasses and then again to the few cases were it is a close up and the glasses take up say 30% of the image  you will significantly lower the number of files you might be liable for.

This again encourages the company to come to a settlement. Especially if money is their main goal.

The court case has to make them more money than they pay for lawyers and judge.

And again, the glasses are just a small part of a stock image, so they should not be able to able to claim damages and money from your full profit on the image. Obviously the models face is the important/valuable part.

Instead they should only be able to demand a much smaller percentage related to the value the glasses add to the whole image. To determine that, the court will need to call in an independent expert.

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%.

It was a German court case, not sure if it would help yours in any way, but if you are interested, send me a site mail.

There are many ways to reduce your liability. You lawyers will obviously need to look at this case from many angles and attack from many sides.

However, all court cases use up a lot of your time and money. So if you can come to a reasonable agreement, i would always recommend to settle.

« Last Edit: November 10, 2012, 15:14 by cobalt »

WarrenPrice

« Reply #74 on: November 10, 2012, 14:49 »
0
Interesting Video.  I had not seen that and am a fan of 60 minutes.  Makes me wonder ... is there an Anti-Trust suite here?


 

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