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Author Topic: Lawsuit Against Us. Fair? Unfair? Need your advice  (Read 39506 times)

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Yuri_Arcurs

  • One Crazy PhotoManic MadPerson
« on: November 10, 2012, 05:53 »
0
Hi Guys.
Recently my legal team has been working overtime battling a case against us made by a company manufacturing glasses. 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". (There are no trademarks or logos on these glasses, just a shape of that particular design series from that year for that brand). These models have paid prices in the range of 800 USD for just one pair of glasses so they are quite expensive.

The problem is, that if this case goes into court and I lose, it will have a huge effect on the rest of the industry and we estimate that about 100000 images (at least) needs to be removed from all the online stock libraries, because as you know stock agencies don't want content online where their customers risk a lawsuit if using the images. Istock has done several of these "mass take downs" in the last few years. So if you shoot people like I do, and you have 10000 images in your portfolio, you should expect to have to remove 50-200 images.
Another effect we might expect, is that other brands of glasses will follow suit or that the agencies themselves will request you to remove all images with XXX brands, at which point we are looking at having to remove about 30-50% of all images on all stock sites with glasses. For me personally about 1500-3500 images. Potentially the biggest take down in stock history.

However. Is this fair?
1. Glasses are by the very nature something you wear on your face in all circumstances and thus are almost imposible not to take pictures off. Brands making glasses are aware of this and make them for this very purpose. Cars, computers and other everyday items are similarly recognisable, but are part of every day life. We can remove the logo, but can't remove the car.
2. 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?
3. Is it fair that a photographer has to research into patent registrations prior to a stock shoot or a portrait series of a client? And in fact remove the model's/clients own glasses if they are of a particular brand? Even when this client has paid top dollar for them?

I think this case is ridiculous as you can probably hear, but it could become quite a big problem for us and all other photographers especially portrait photographers or other commercial photographers doing client work.

Any advice that we can use in our case preparations are very welcome. Good arguments, links to similar cases, reflections, law experience. Whatever you think is relevant is very welcome. If this case becomes a reality (which it looks like it will, because they are now already expanding their demands to more images) we want to take it to supreme court. Our lawyers are however not positive about our chances. :(

Best Yuri Arcurs


« Reply #1 on: November 10, 2012, 06:13 »
0
That's funny, I was just yesterday looking at some rather expensive sunglasses for a trip to Australia, now I read this! Which brand is it? I want to be sure I don't buy their model. Commiserations, Yuri, and good luck in resolving this.

Microbius

« Reply #2 on: November 10, 2012, 06:16 »
0
No advice, just sympathy.
These lawsuits are total b*llshit.
You can't wear a photo of glasses.

I can understand lawsuits against other glasses manufacturers that copy their designs, but suing over a stock photo with someone incidentally wearing your glasses is just plain copyright trolling.

« Reply #3 on: November 10, 2012, 06:25 »
+1
There are thousands and thousands of copies of sunglasses of this brand (that cannot be mentioned but it is obvious from Yuri's photos which manufacturer it is) produced daily. It is possible to buy very good copy of them at marketplace for 5 euro. Instead of lawsuit against these producers and sellers, manufacturer's concern is to battle against someone who spent money for their original product. World goes crazy. Time to start pornstock with naked models only.

ShadySue

« Reply #4 on: November 10, 2012, 06:27 »
0
The law must depend on the country involved and the actual image/s.
For example, incidental use of even a logo on an object is OK in the UK (so that old iStock chestnut of a YKK logo possibly distinguishable on a zipper on a full body person in an evironment would be fine in the UK). So if the glasses were on a model who was doing something and they were quite small in the photo, you'd be OK in the UK. But if the image was a close-up of the model looking like a specs ad, that might be problematic.
To be honest, they're probably just rattling your cage, as you have a very high profile and they think they can fleece you. They'll no doubt be hoping that you'll settle out of court, like Getty did when they sent these huge bills out to people who had illegally used their files for e.g. educational or charitable purposes. Damages awarded by a court, at least in the UK for these misuses would (probably) have been much lower than the amount demanded.

Let's face it: everything man-made has a designer. So if they are still alive, they could theoretically sue us for use of their product in a photo. I can sometimes recognise the brand of a generic-looking item of clothing in UK model shots, and I'm not remotely a fashionista. There's one US basics brand which has a different shoulder seam type than normal. (It's a standard seam type, I learned it at school; but it's not usual to do t-shirt shoulders that way.) So if I spot that on a photo, it's easy enough to look at the colour, length and other small details.

I'm sure your own lawyers have a far better handle on international law that I have, and they'll have seen the photos concerned. It's worrying if they think you have little chance.

Good luck. If you lose this, the world of stock will be reduced to nudes, nature and editorial.

IANAL

PS: wonder if you might get some unexpected support from some sort of (theoretical, I have no idea) organisation that promotes glasses. They are not going to want the idea reinforced that attractive people don't wear glasses.
« Last Edit: November 10, 2012, 06:37 by ShadySue »

« Reply #5 on: November 10, 2012, 06:29 »
0
In which country is the case going to be tried?
You may want to consult a copyright specialist lawyer from that country.

You might hold the following argument valid: The glasses are NOT a major part of the picture, that compares to shooting buildings with strangers in the frame.
And you may also hold valid that you have promoted their product for free by distributing pictures.
At least they will have to prove that the pictures has a negative effect on their brand, and its rather the opposite.

Secondly... You are allowed to shoot anything, and probably also to distribute it. It is the final use that can cause copyright infringements.
You may want to team up with other agencies.
« Last Edit: November 10, 2012, 06:32 by JPSDK »

CD123

« Reply #6 on: November 10, 2012, 06:31 »
+2
If you loose this case Yuri, all future model photos will have to be in the nude. Clothes manufacturers will sue you for not having property releases, so will manufacturers of any jewelry the models might be waring.
Do not know American law, but in South Africa there is a principle that no interpretation of law will lead to a ridiculous (inapplicable) outcome and this will be utterly ridiculous!

« Reply #7 on: November 10, 2012, 06:42 »
0
Hi Yuri,

from personal sad experience with court cases in patent law I can tell you that you might find that you will indeed in the future have to research what kind of glasses, clothes, fabrics your models can wear, what chairs to sit on, what computers/tablets to use and will always be taking down files if there are new aggressive product design companies.

Law has nothing to do with fairness.

Only with who has enough money to push through his demands.

You might be able to argue that glasses are such a small part of the image, that their design rights are not affected, but I doubt you will be able to get through with it. At the last Lypse in Berlin, we were shown images of chairs that were so hotly copyrighted, that they couldnt even print a flyer for us to take home to make sure we avoid them.

Yes, I believe as a professional stock photographer you will need to keep updating yourself on the current trends in copyright law. It is one of the areas were a company like getty/istock spend a huge amount of money on.

After all your whole business model revolves around copyright, so the legal stuff becomes part fo our job.

You might want to reach out to other agencies to share the cost of the case because they will be affected as well.

But all kinds of images get deactivated every year, because of copyright problems.

I hope you can come to a reasonable agreement with the company that is suing you, but I am afraid you will probably have to deactivate those images.

Like I said, Law is not fair. But neither is life.

ETA:

Going forward you might want to consider actually working with a clothes designer who will be proud that your models are using his or her clothes and glasses. They will get the added exposure from your blog and marketing.

And you get a property release for all items used.

With your brand name I wouldnt be suprised if you get many offers. Who wouldnt want to be able to outfit you with the hottest business suit of the year?
« Last Edit: November 10, 2012, 06:50 by cobalt »

Yuri_Arcurs

  • One Crazy PhotoManic MadPerson
« Reply #8 on: November 10, 2012, 06:49 »
0
The case will be on Danish Jurisdiction at first trying to hit us in our own country. Then it will obviously expand to other countries to make sure we are forced to remove the images from all countries at which point all major stock sites will be forced to do the same. It will be a game changer yes and unfortunately limit the types of images we can produce quite a lot because if a generic everyday item such as a pair of glasses can be the subject of an infringement, then everything can. All recognisable car brands, all furniture, household items, computers, electronics... you name it. :(
« Last Edit: November 10, 2012, 06:52 by Yuri_Arcurs »

« Reply #9 on: November 10, 2012, 06:55 »
+4
In my opinion they are actually being very stupid. You have the most widely used files in the world and your pictures are a massive passive advertising campaign for them.

The only risk for them is that someone who copies their design could use your pictures for advertising. But then they would have to sue the copy cat anyway.

I would go and talk to their main competitor and get a deal so that in future you only use their glasses...and I would also present this option very clearly to teh company that is suing you. Maybe their business and marketing department can be convinced to sit down and calculate how much added free exposure their competition will then be getting and come to their senses...

Oh and of course point out that there will be lots of negative press once the case is open to the public. What kind of starlet, actor, model to be, celebrity will want to use their glasses if there is a risk of being sued??

Your models and business partners would obviously be reporting about this horrible case on all their blogs and discourage people from wearing them.

And again there competitors could advertise with "we dont sue our customers"..."we are proud that Yuri Arcurs has chosen our designs for his next collection" etc...

I think the fallout from negative press might be the only thing to get idiots to think. But it is a longterm strategy, not something that will help you with the judge.
« Last Edit: November 10, 2012, 07:02 by cobalt »

« Reply #10 on: November 10, 2012, 06:57 »
0
Might be worth contacting Getty and asking for their advice on this.  If you lost a case like this, how many images would Getty have to take down?  As they're the big stock images site, it's going to hit them the hardest.  If this would set a president, they might want to use their resources to make sure you don't lose this action.  And they must be used to dealing with cases like this.

« Reply #11 on: November 10, 2012, 06:58 »
0
Hi Yuri - This may be relevant. Given your being hit in Denmark, would CEPIC be able to offer any advice, similarly some of the traditional Danish agents such as Polfoto? I'd fire fire an Email off to them directly  I'm guessing you have some contacts, mine are out of date.

Judged from the below, each photo would gave to be judged on a case by care merit, rather than a complete take-down notice. Your a businessman - make a decision based on your own financial implications rather than a point of order - unless you get some backing.

Oldhand


The test of trademark infringement is the likelihood of consumer confusion. If you sold a photo of a car showing the BMW logo, might it look as though you are connected to BMW? It doesnt matter that you are not; it matters that the public might think you are.

Lanham Act

In the U.S., trademark infringement and false advertising are covered by federal statutory law known as the Lanham Act. Named for Congressman Fritz Lanham, (D-TX), a proponent of strong trademark protection, the Act forms title 15, chapter 22 of the United State Code.

False Designations of Origin

(a) (1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or;

(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person''s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

Lanham Act, 1946, 15 USC 1125

Source: http://www.photosecrets.com/photography-law-property-trademarks

« Reply #12 on: November 10, 2012, 07:31 »
0
The glasses company ''smelled'' the chance to make some money without selling any glasses... embarrassing  :-\

Yuri will be very helpful to post a link/photo of the sunglasses type/model that you talking about.
« Last Edit: November 10, 2012, 07:34 by nicku »

Yuri_Arcurs

  • One Crazy PhotoManic MadPerson
« Reply #13 on: November 10, 2012, 07:36 »
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?

Yuri_Arcurs

  • One Crazy PhotoManic MadPerson
« Reply #14 on: November 10, 2012, 07:37 »
0
Can't post brand name at this point. That would conflict with the case.

OM

« Reply #15 on: November 10, 2012, 07:47 »
0
In my opinion they are actually being very stupid. You have the most widely used files in the world and your pictures are a massive passive advertising campaign for them.

The only risk for them is that someone who copies their design could use your pictures for advertising. But then they would have to sue the copy cat anyway.

I would go and talk to their main competitor and get a deal so that in future you only use their glasses...and I would also present this option very clearly to teh company that is suing you. Maybe their business and marketing department can be convinced to sit down and calculate how much added free exposure their competition will then be getting and come to their senses...

Oh and of course point out that there will be lots of negative press once the case is open to the public. What kind of starlet, actor, model to be, celebrity will want to use their glasses if there is a risk of being sued??

Your models and business partners would obviously be reporting about this horrible case on all their blogs and discourage people from wearing them.

And again there competitors could advertise with "we dont sue our customers"..."we are proud that Yuri Arcurs has chosen our designs for his next collection" etc...

I think the fallout from negative press might be the only thing to get idiots to think. But it is a longterm strategy, not something that will help you with the judge.

Slightly oblique approach but if starlets/celebs are photographed by paparazzi and the celeb is pictured wearing sunglasses of a certain design, will the designer sue the paparazzo for taking a picture for commercial purposes without their permission. Of course not, because the designer wants their product shown associated with celebs. Unless that designer is prepared to sue every paparazzo/publisher for every photo in which their product appears (without permission), then they shouldn't be suing you. Sounds like they are trying it on. My 2c and not legal advice.

CD123

« Reply #16 on: November 10, 2012, 08:03 »
0
Only isolated nudes from now on Yuri!  ;)


« Reply #17 on: November 10, 2012, 08:26 »
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?

Hi!

Theyre trying to get money out of you and who better to pick on then you?  They are not worried about you showing the design, they just want money, thats all. After all, you showing their design is free ( gratis) adverstising, isnt it.

Danish courts are very relaxed. I doubt very much you will have a problem in the whole of Scandinavia. UK and US however is another problem.
I would have thought the right procedure was to first ask the agencies to remove all the shots and go from there.

The whole thing is getting ludicrous, you cant shoot anything without somebody filing for lawsuits.

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.
« Last Edit: November 11, 2012, 06:03 by ClaridgeJ »

« Reply #18 on: November 10, 2012, 08:31 »
0
They sue you because of your "deep pockets" thats all.
I would settle out of court, the eyewear company want money thats all, they don't really care if you use them on stock photos or not.
In court not only will you probably loose you will also pay hefty lawyer fees.

Settle!

« Reply #19 on: November 10, 2012, 08:33 »
0
This is about every single commercial photo in the world. Apple successfully patents rectangle with rounded corners. I would never guess that it is possible. Is it time to produce triangle tablets? What's next? No more isolations because someone's going to register white background patent? Will all the models wear plain white t-shirts and lying on grass in the future? Well - maybe there will be special triple upside down reversed stitching on the shoulder visible patented by Stitchers Worldwide Inc. and particular color of lawn grass cultivar registered by United Grass Artists.
I hope that this patent madness has some limits.

« Reply #20 on: November 10, 2012, 08:41 »
0
This is about every single commercial photo in the world. Apple successfully patents rectangle with rounded corners. I would never guess that it is possible. Is it time to produce triangle tablets? What's next? No more isolations because someone's going to register white background patent? Will all the models wear plain white t-shirts and lying on grass in the future? Well - maybe there will be special triple upside down reversed stitching on the shoulder visible patented by Stitchers Worldwide Inc. and particular color of lawn grass cultivar registered by United Grass Artists.
I hope that this patent madness has some limits.

The differance is Apple is a multi billion corp. They can afford to fend off almost anybody. In a situation like this,  you chose your battles.

« Reply #21 on: November 10, 2012, 08:45 »
0
I have no idea why a glass company wants to shoot themselves in the leg. It's not like you are stealing their designs, you are providing them much exposure, perhaps even more than their own advertising campaigns. They should be sending you free glasses to use in photoshoots.

They should be happy for the free exposure instead of trying to squeeze some pennies from photographers. Very short-sighted and greedy actions, but that's how the world seems to work nowdays :(
« Last Edit: November 10, 2012, 08:48 by Perry »

velocicarpo

« Reply #22 on: November 10, 2012, 08:53 »
0
Wow. What a S**th*l* company. Whatever happens when the name of this company comes to public I will never ever buy from them again anything. I get increasingly intolerant about this type of stupid behavior.

From the legal side: I am afraid they might get through with that since I know of other cases like this, but it might simply depend on the particular judge. As I remember you are based in Denmark (?) and this countries are much more sane than the US when it comes to legal stuff but who knows...

« Reply #23 on: November 10, 2012, 09:12 »
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?


Why you?  Because you're the creator of the images.  The self proclaimed world's number one stock photographer.  Of course you're going to attract attention.  You're also an agency.  And you can contact all the agencies you have distributed to, to take them down, since you know where you sell through.  They would also have to contact all the buyers individually, with information from you and the agency, I guess.

I'm of the opinion that things you use in everyday life should be able to be incidentally used in stock images.  As said, a photo of glasses aren't a pair of glasses.  No one is making glasses from a photo.  Same for cars, etc.

The question is, why come here?  Your company obviously has a staff of maintained lawyers to deal with this.  We're not going to give advice you haven't already gotten.  Are you looking for a mobilized outrage campaign? 

This isn't new though. Surely, you've been affected by the Le Corbusier lawsuits: http://www.bjp-online.com/british-journal-of-photography/news/2140613/getty-images-fights-copyright-infringement-ruling-french-court

BTW, here is an IS thread on sunglasses: http://www.istockphoto.com/forum_messages.php?threadid=54397&page=1
« Last Edit: November 10, 2012, 09:28 by sjlocke »

« Reply #24 on: November 10, 2012, 09:33 »
0
Sean is right as usual about incidental use.  Of course this is a crazy scenario but its happened with cars and shoes and now gonna happen with shades.  However, there is an element of swings and roundabouts here - producers of stock imagery are very protective, even paranoid, about their intellectual property which makes it hard to make a case against someone else defending theirs.

http://www.microstockgroup.com/general-stock-discussion/wow-have-you-guys-seen-this/


 

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