Author Topic: Used my image by pencil tracing (Read 4340 times)

janb · « **on:** August 11, 2013, 08:26 »

I found an image I sell used as a logo by a French winery. That should be nice news but it isn't. The image has been traced by pencil and used as main part of the logo. It is also to be found on their bottles.

I had contact with her and she wrote me she found the image on Google and weren't able to contact the owner

She sent me the drawing, after I showed her a link to my image, and told me it was her creativity. The logo is not my photo, she says.
I can overlay the two images and it is a perfect copy but only she hand traced it with pencil and paper.

It is so obvious it is my image but I don't know what to do.
I don't feel I like the idea of letting the hounds of the stock company loose to tear this winery apart, what's in it for me. I get my $1.50 and they walk away with loads of money.
I would like to settle it with them, even though it will be hard.

Any advice?

stockphoto-images.com · « **Reply #1 on:** August 11, 2013, 08:55 »

Most likely they won't settle just yet because of their good will. Since they grabbed an image from Google it shows they have no interest in paying any artist any monies for their creative work.

As your contact at the winery already stated, the logo is not your image. However, there is a (copyright law) that also touches on derivative works.
This logo is in part derived from your image.

You need an attorney. In most cases companies like the one you're dealing with won't do a thing unless you can present an attorney.

Attorneys, as well, prefer to settle - because litigation is time consuming and very costly. The attorney might just have to write a letter or two to get the settlement going.

It is very important where the infringement has been committed! Is it the same country that you are in? Does the country where it happened even have copyright laws etc. ?

Did you register copyright with the US Copyright Office for this image before publication, after publication or not at all?

When I contacted attorneys, they always asked me first if I registered copyright. Registering copyright can give you a lot more leverage for settlement and hence make it easier to recover damages.

Either way, find an attorney, just call around and explain your situation and ask if they would be able to take on the case on contingency if you cannot afford a lawyer. Make sure to contact intellectual property attorneys who specialize in this kind of stuff!

Good luck!

ShadySue · « **Reply #2 on:** August 11, 2013, 09:41 »

@janB: if you are not based in the US, and the winery is based in France, US copyright registration is irrelevant.

This is how the law on derivative works applies in the UK, which is probably very similar to EU Law:
http://www.copyrightservice.co.uk/copyright/p22_derivative_works.en.htm

I haven't been able to find an authoritative English language statement of EU or specifically French law on derivative artworks. Googling yields all manner of cases involving derivative software, and the 'collective works' field.

If you live in France, it might be a reasonably simple matter to resolve if they have something like a Small Claims Court; but I suspect that you don't. International lawyers cost a lot of money, and it may be that you wouldn't even get back your costs. Definitely, as stated above, you'd need to find someone specialising in French IP law in your own country. Good luck with that!

It might help, in your own dealings with the winery, to see if you can find the image on Google. If you can only find it on the agency/ies you sell the files from, you can ask them where exactly they got it. Then, or if you find the file outwith your agency, check if there is EXIF data still in the file. Insanely, a lot of agencies strip out the metadata. If it happened that your metadata, or that of the agency, was in the image, you'd have a much better leg to stand on, but don't hold your breath. If it's a very popular file, you might find it hundreds of times in Google, which makes your case so much more difficult.

Unless you intend to follow up 'on principle', make sure that your gain is going to be more than your loss.

In addition, it may be that a Google Image Search doesn't actually show your image on an agency (lots of my iS photos don't show up on a GIS reverse search), and in such a case, the winery might try a 'due diligence' defence, meaning they couldn't find an agency or original author. That argument may or may not hold (some) water - IANAL.

janb · « **Reply #3 on:** August 11, 2013, 13:11 »

Thanks for the comments.

I live in the Netherlands and the winery is in S-France and the lady boss turns out to be Dutch

For me it is hard to believe that a company makes a logo for their company and labels for their bottles with a stolen image. I was completely wiped out when I found out. I mean you invest a lot of money to build a brand and you do this.

It's going to be hard but as the image is so clearly mine I am going to write them a mail to see if we can settle this. I have no high hopes so if not I'll be making some calls tomorrow for help. I do have an personal insurance but not a company insurance, I'll find out tomorrow if my insurance is ok.

I do have, a few streets down, one of the most well-known attorney office in the country, might try to bump in them on the street

ShadySue · « **Reply #4 on:** August 11, 2013, 13:42 »

Be sure to check the Terms and conditions of the agency/ies you have sales of the image. Many agencies forbid use of images as logo. If that applies to the relevant images, point it out if the attorney says you would only be entitled to the normal piddling royalty for an 'artist's reference'.

bunhill · « **Reply #5 on:** August 11, 2013, 14:28 »

^ I believe in general, but may be wrong in the specific instance, that the agency rules about "logos" are about "logos" which would be specifically registered as trademarks. The point being that trademarking an image as a logo would be part way towards claiming ownership. So, for example, the original brilliant Twitter logo by Simon Oxley was probably not technically a logo. Because it was a royalty free vector from when he was with iStockphoto. IIRC.

Many small vineyards often running on very little money will use a design on the labels which though it may superficially look like a logo may not actually be a logo in the sense of being trademarked.

If the wine is any good perhaps you can get her to send you a few crates to make you go away

janb · « **Reply #6 on:** August 11, 2013, 14:41 »

Quote from: ShadySue on August 11, 2013, 13:42

Be sure to check the Terms and conditions of the agency/ies you have sales of the image. Many agencies forbid use of images as logo. If that applies to the relevant images, point it out if the attorney says you would only be entitled to the normal piddling royalty for an 'artist's reference'.

I have checked that. You are not allowed to make a logo with a standard licence.

Quote from: bhr on August 11, 2013, 14:28

^ I believe in general, but may be wrong in the specific instance, that the agency rules about "logos" are about "logos" which would be specifically registered as trademarks. The point being that trademarking an image as a logo would be part way towards claiming ownership. So, for example, the original brilliant Twitter logo by Simon Oxley was probably not technically a logo. Because it was a royalty free vector from when he was with iStockphoto. IIRC.

Many small vineyards often running on very little money will use a design on the labels which though it may superficially look like a logo may not actually be a logo in the sense of being trademarked.

If the wine is any good perhaps you can get her to send you a few crates to make you go away

Thank was my thinking. I am not here to ruin a company but our work should also be respected.

janb · « **Reply #7 on:** August 12, 2013, 08:04 »

Thanks again for all the advice!

I have decided to handle this gently, so I wrote a polite email yesterday. Still thinking nothing would happen I was surprised to get a phone call from S-France this morning.

We had a nice chat where she deeply regretted the big mistake she made. She just didn't realize that she would ever have a problem with this. She couldn't afford losing her logo as it was already well-known.
It never came in my mind to go that far. She couldn't come up with a solution so I suggested a case of wine. She'll send me a nice mix of white and red wine!
Isn't that great!!

I think I have gained a nice connection to S-France. It did help that we both could speak Dutch. So, how to turn a bad situation into something nice. I am pleased!

ShadySue · « **Reply #8 on:** August 12, 2013, 08:07 »

Well done!

cuppacoffee · « **Reply #9 on:** August 12, 2013, 08:37 »

I wish some of the microsites would pay in wine! Well done!

Beppe Grillo · « **Reply #10 on:** August 12, 2013, 09:37 »

Quote from: janb on August 12, 2013, 08:04

She'll send me a nice mix of white and red wine!

À ta santé!

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Author Topic: Used my image by pencil tracing (Read 4340 times)

janb

stockphoto-images.com

ShadySue

janb

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bunhill

janb

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cuppacoffee

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