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Author Topic: US company selling product with my image on it.  (Read 6983 times)

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traveler1116

« on: December 28, 2011, 23:07 »
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I just found a US company with about 300 stores nationwide selling a product that features my image, like a mousepad with an image printed on it.  The image is obviously what is selling the product.  As far as I can tell there was no EL purchased for it.  Would it be worth it to talk to a lawyer about seeking damages?  Anyone else dealt with this kind of thing before?


« Reply #1 on: December 28, 2011, 23:09 »
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I haven't had that specific situation, but wouldn't iStock CE be the people to contact? They'll probably just seek the appropriate EL purchase - I can't imagine any damages could be high enough to offset legal fees.

traveler1116

« Reply #2 on: December 28, 2011, 23:12 »
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Ok that's what I figured.  I wanted to ask here first because if they handle it I won't see anything more than the EL price and I have no idea if the damages could be much higher.

mlwinphoto

« Reply #3 on: December 28, 2011, 23:23 »
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Another option, although a rather protracted one, would be to find a lawyer willing to work on a "percentage of the settlement" basis.  This is assuming it qualified for an EL purchase which it probably should have.  The only experience I have with situations like this were in the RM marketplace and the money involved was substantial; microstock probably not so much....one of the problems with microstock, IMO.

« Reply #4 on: December 29, 2011, 00:05 »
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You should contact IS first (gathering from the other posts, I'm assuming you're exclusive?).  I just read a sticky forum post the other day that said contributors are forbidden from contacting IS's customers about copyright infringements or improper licensing. 

http://www.istockphoto.com/forum_messages.php?threadid=330708&page=1

mlwinphoto

« Reply #5 on: December 29, 2011, 01:13 »
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You should contact IS first (gathering from the other posts, I'm assuming you're exclusive?).  I just read a sticky forum post the other day that said contributors are forbidden from contacting IS's customers about copyright infringements or improper licensing. 

http://www.istockphoto.com/forum_messages.php?threadid=330708&page=1


While I agree that it is probably better to have iStock handle things like this the way I read that sticky is that exclusive contributors are not forbidden from contacting customers re: copyright infringements or improper licensing but instead are strongly encouraged not to.....independents, on the other hand, are basically on their own.

« Reply #6 on: December 29, 2011, 01:20 »
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You should contact IS first (gathering from the other posts, I'm assuming you're exclusive?).  I just read a sticky forum post the other day that said contributors are forbidden from contacting IS's customers about copyright infringements or improper licensing.  

http://www.istockphoto.com/forum_messages.php?threadid=330708&page=1


While I agree that it is probably better to have iStock handle things like this the way I read that sticky is that exclusive contributors are not forbidden from contacting customers re: copyright infringements or improper licensing but instead are strongly encouraged not to.....independents, on the other hand, are basically on their own.


Read the second to last paragraph:

Quote
4. This reason is the most serious. This morning we were contacted by a customer who received a letter from a contributor threatening them with a lawsuit and demanding an amount in the thousands for the usage of a file they were using 'without a license' This customer actually has purchased the image from us. If we receive contact like this from any more customers and confirm the validity of the conversation with a contributor, we will be taking serious action against that contributor. This sort of behaviour jeopardizes our business and your business and will not be tolerated.  


I'm interpreting that to mean "forbidden unless you want your account terminated."
« Last Edit: December 29, 2011, 01:24 by Karimala »

« Reply #7 on: December 29, 2011, 03:40 »
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Or, at least, you'd better not make a mistake and wrongly accuse a customer...

I presume they would also terminate a non-exclusive account for a false accusation.

« Reply #8 on: December 29, 2011, 07:14 »
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And did they also mention in there that they want to handle it themselves because if there are thousands to be made in penalties for copyright infringement off of a company, istock wants to be able to get 99% of that money, while paying the contributor the cost of the EL license only?  ;)

I found an image of mine being used in a major magazine and no EL was purchased for it...if any $ penalty was imposed on the customer, I never saw any of it...I got the price of the EL, which was about $33.00. And what if I had never seen the magazine? THAT'S why contributors are taking matters into their own hands! istock sure isn't looking out for contributors, especially non-exclusives (who I believe will be gone soon from istock anyway).

« Reply #9 on: December 29, 2011, 07:35 »
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Quite. But there is still risk attached to taking action.

« Reply #10 on: December 29, 2011, 07:38 »
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I just found a US company with about 300 stores nationwide selling a product that features my image, like a mousepad with an image printed on it.  The image is obviously what is selling the product.  As far as I can tell there was no EL purchased for it.  Would it be worth it to talk to a lawyer about seeking damages?  Anyone else dealt with this kind of thing before?

IS will try to get the EL if it was purchased there.  There will be no damages.

10.c says:
"The Supplier agrees that iStockphoto shall have the right to determine whether and to what extent to proceed against a licensee or other third party (an "Infringer") for any violation of a license agreement or alleged infringement of other rights of the Supplier."

« Reply #11 on: December 29, 2011, 08:43 »
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I don't know the exact clause but there is also a part in the agreement that states if they decide to go after the infringer you are liable for legal expenses. If they don't go after them and you choose to pursue it yourself then you are obligated to share any awards with IS.

« Reply #12 on: December 29, 2011, 10:08 »
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I don't know the exact clause but there is also a part in the agreement that states if they decide to go after the infringer you are liable for legal expenses. If they don't go after them and you choose to pursue it yourself then you are obligated to share any awards with IS.

That's pretty funny.

« Reply #13 on: December 29, 2011, 10:42 »
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If they don't go after them and you choose to pursue it yourself then you are obligated to share any awards with IS.

I would like to be in that situation and see what IS thinks about the 15% they get from me. (They might get 16% if they have enough redeemed credits)

« Reply #14 on: December 29, 2011, 10:57 »
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If they don't go after them and you choose to pursue it yourself then you are obligated to share any awards with IS.

I would like to be in that situation and see what IS thinks about the 15% they get from me. (They might get 16% if they have enough redeemed credits)

I think the split has to be according to the usual percentage, so they would take 85% of the wealth you created. As normal.

« Reply #15 on: December 29, 2011, 11:15 »
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Or, at least, you'd better not make a mistake and wrongly accuse a customer...

I presume they would also terminate a non-exclusive account for a false accusation.
Quite. But there is still risk attached to taking action.

Which REALLY sucks for non-exclusives.  It left me feeling like my hands are tied regarding the pursuit of any copyright infringement or improper licensing.  Non-exclusives have no way knowing one way or another where someone got a hold of an image or whether that person purchased an image at IS.

RacePhoto

« Reply #16 on: December 29, 2011, 14:32 »
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Or, at least, you'd better not make a mistake and wrongly accuse a customer...

I presume they would also terminate a non-exclusive account for a false accusation.
Quite. But there is still risk attached to taking action.

Which REALLY sucks for non-exclusives.  It left me feeling like my hands are tied regarding the pursuit of any copyright infringement or improper licensing.  Non-exclusives have no way knowing one way or another where someone got a hold of an image or whether that person purchased an image at IS.

It says for Nons that they will only peruse cases where the watermark is present. This is a no brainer, because when someone has the same image on 25 sites, and 200 partners, and then wants IS to chase people for illegal use, they have no way of knowing where the image came from.

It may suck, which is true, but no agency will waste their time chasing an independent sale, with no way of knowing who actually sold it.

I believe (and may be wrong) that Indemnity has to do with us holding IS responsible, not the cost of infringement cases. Yes, if we pursue someone and collect, IS wants a bite of that money according to out compensation agreement. WHAT? We do all the work and they want a share. That also sucks!

The option is, don't sell there, which when I've said before "if you don't like it, go somewhere else" was offensive and a Pollyanna approach. Hey, guess what, all the writing and hand wringing here, won't change the contract. It is what it is.

The only way people will ever get anything changed is for a unified revolt of major sellers, pulling their files from IS and that's not going to happen, is it?

So we are enjoying this debate and discussion which has no fruit or gain for anyone of us.


 

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