What would you do?

[Kevin]

My wife and I ordered a first Christmas ornament for my daughter last year from this web site.

http://www.stockingfactory.com

We find ourselves in the great position of having another daughter having her first Christmas this year…… I know two years two kids, that’s not what I need advise about.

Last year I took a nice portrait of my daughter for a Christmas ornament, the quality of the ornament was OK, no complaints when we got it back. This year my wife was going back to the site to possibly order another for my new daughter. Guess what she finds, my daughters photo on an ornament from last year advertising on their site. They at least changed the name on the ornament so it doesn’t show her name but the photo is the same, in fact I am looking at the same photo on my mantle now. My wife was very upset to see the photo online, I thought she had seen a ghost when she came out of the room.

Obvious copyright issues, I make some of my living from photography so I know what these types of photos can cost. In fact I have paid for a few from Getty Images on web and print projects I have been involved in.

So, should I contact them and send them a bill for usage at Getty rates?

What’s your take?

Does anyone have any good legal letters that could shorten my writing time?

[CaptainTom]

I definitely would send them a bill. Make sure you document the event.
They will likely pull the item with the photo and put in something else.
Your lawsuit will be an uphill battle. You will need to prove that they used the photo for commercial purposes (easy in this case) and that you were somehow injured by the use (you need to prove loss of normal income). Your first step of sending them a bill for the use, and their subsequent refusal to pay is very important. You will need a lawyer (which I am not, and am not giving any specific or implied legal advice).

[ndsimm]

don't forget to get a screenshot of the webpage so you can have proof. they can always take it down and say it was never up....

[*Mike*]

The only other thing to consider is, what are the terms of using the site? Many places will try a rights grab - simply uploading and/or purchasing grants them specific rights to the images used. Whether or not that would hold up, I don't know. But, it is common... check out their terms of service.

[Stephen H]

That was my thought- see if there's not some fine print that allows them to use it somewhere.

[petert]

Originally Posted by *Mike*

The only other thing to consider is, what are the terms of using the site? Many places will try a rights grab - simply uploading and/or purchasing grants them specific rights to the images used. Whether or not that would hold up, I don't know. But, it is common... check out their terms of service.

You took the words right from my mouth... I hate the way these companys slide that by you in their "user agreement"...

[Duffy Pratt]

I looked through the ordering process, and there doesn't seem to be anything that tries to give them the right to use your picture. If I were you, I would get in touch with them, be nice about it, and try to get an in-kind deal. Just sending them a bill is likely to put them into resistance mode, which won't get anything done for either of you.

Also, if you want the picture off the site, I'd ask them to do that as well. I understand the copyright issue, but to pursue it will cost both you and the company more than it is worth.

I'm not as sure I understand why you and your wife are mortified by their using a picture of your kid. I mean, you are using another picture of your kid as your avatar, so it's not like those sorts of pictures have been kept private. If it were me, I might be pissed that they were using my work without my permission. But at the same time, I would be flattered.

Duffy

[CaptainTom]

Originally Posted by Duffy Pratt

I looked through the ordering process, and there doesn't seem to be anything that tries to give them the right to use your picture. If I were you, I would get in touch with them, be nice about it, and try to get an in-kind deal. Just sending them a bill is likely to put them into resistance mode, which won't get anything done for either of you.

Also, if you want the picture off the site, I'd ask them to do that as well. I understand the copyright issue, but to pursue it will cost both you and the company more than it is worth.

I'm not as sure I understand why you and your wife are mortified by their using a picture of your kid. I mean, you are using another picture of your kid as your avatar, so it's not like those sorts of pictures have been kept private. If it were me, I might be pissed that they were using my work without my permission. But at the same time, I would be flattered.

Duffy

I would bet that if the company had asked permission to use the shot they would have gotten either free or dirt cheap. But, they didn't and that is the greivance.
If you send them a bill, you will either get a response, or they will stonewall you. If you get a response, and they make an offer or apologize, or deny, at least you have a dialogue.

[Kevin]

Originally Posted by Duffy Pratt

I'm not as sure I understand why you and your wife are mortified by their using a picture of your kid. I mean, you are using another picture of your kid as your avatar, so it's not like those sorts of pictures have been kept private. If it were me, I might be pissed that they were using my work without my permission. But at the same time, I would be flattered.Duffy

Who said I was mortified? I said my wife was upset at seeing my daughters photo online, and she has a right to be.

What I choose to do with the photos that I take of my daughter is my business, if I use them as an avatar that is my option.

Flattery is not an option in this case. Flattery does not pay for my studio lights that I used to shoot this portrait, it does not pay for my Canon 1D MKII, it does not pay for the 24-70 2.8 lens or the 2 -3 hours I spent setting up the session, post processing, etc.

This is not an attack on you Duffy, I just don't understand that line of reasoning that if someone steals your work to profit their business that you should be flattered.

I would have been flattered if they had sent me an email and said "You have a cute daughter, can we use her photo on our web site?" But they did not do that. They took my work w/o permission and used it to advertise their product.

Very unethical!

Kevin

[HotHolly]

I would be shocked, if the site didn't have terms of use in there somewhere. However, on scanning the site - I dont see anything. If you printed an order form, you can check to see if a notation was on there. You can see how old the company is at www.whois.sc by typing in the web address. If they are totally new, there is a good chance there has been no need to put it there yet. And if they did make an oops, you could decide whats more important - for them to pull the image or to get paid. I would have sent a damages legal letter (Family Lawyer is a good cheap program) certified mail. We've had copyright issues in the past...that always gets people to stop wronging you. We tell them that the next letter will be from my lawyer and will include $ABC in dmaages for use of the image.
Good luck!

Oh - the form you want is a cease and dissist.

[photobykim]

Originally Posted by Kevin

I would have been flattered if they had sent me an email and said "You have a cute daughter, can we use her photo on our web site?" But they did not do that. They took my work w/o permission and used it to advertise their product.

Very unethical!

Kevin

well to that point how would they know that she was your daughter and not a client or a paid baby model? Had it been a client and they came across that I bet they would be similarly upset.

Keep us posted on what you decide to do and what happens.

[Michelle Allmon]

well, that is MESSED UP! why don't people just ask?????

[DEMDeepEllumMusic]

Well there are laws on the books about Copyright violations pertaining photography and the Minimum is I believe $250 per incident (have not looked at them for over a year) and of course Commercial Use on a website can get you more!

If they did it to you they have done it to others!

I would talk to a copyrights lawyer, plenty of them in Dallas/Ft Worth and see what they say. (should give you a rough idea of what ballpark figure you should get).

Folks in Dallas should remmeber the incident that the COWBOYS used a photographers pic of Emmit on the Star on Shirts without getting a release- Photographer pocketd about $250,000 if I remember right but banned from Texas Stadium- he had a on field pass at the time.

[Michelle Allmon]

yeah, talk to a lawyer.

[Wes]

Hmmmmm.... I'm no copyright expert, but in order to recover damages from copyright infringement, doesn't the copyright have to be registered with the government? From what I understand, you can slap your own copyright on an image and it will give you limited protection, but I think that you're extremely limited with regards to what you can recover.