Copyright Infringement?

[crazinessisay]

Awhile back, I was contacted by an indie record label called "Cash Crop Records" in reference to using one of my images as album art for one of their releases. They said that they couldn't pay me, but I thought the exposure would be nice, so I agreed that they could use the image as long as I retained the rights to it. They sent me a contract to sign and mail to them, as well as an e-mail stating that they would need the contract in order to use the image (along with several others named in the contract that hadn't been previously discussed). I didn't like that they had added images to the contract that I hadn't approved, and they were starting to seem shady in general, so I decided not to send the contract or respond to them.
Now I've discovered that they took the images they wanted, as well as several that weren't even named in the contract that I didn't sign, off of my deviantart page and have used them on 3 albums, and their website.
I'm 19. I don't have a lawyer, and I'm not sure what to do.
Any suggestions?
-Reid

[budafist]

I'm not a lawyer either, but I would contact them immediately.

Tell them that you decided not to sign the contract and your reasons why. Tell them that you expect to be compensated for all the work they have taken from you. That really is shocking ethics on their behalf.

Anyone that "can't pay you" are just trying to manipulate you. They pay for their power, their rent, their food, their equipment. They're just trying you on to see if they can squeeze you. Design and art is not free. Sometimes it's quite expensive.

Cash Crop Records really need to come up with some cash.

Failing that, you could contact the musician/s that the art is for and see if they will put pressure on the company. Bad company ethics may filter to other parts of their business - perhaps the musicians are also unhappy with the company.

[greyghost]

I would get a lawyer, and have a cease/desist letter written.

[budafist]

http://www.zoicks.com/copyright.htm


Here is more excellent information from Jim Dainis, a frequent poster and photography guru, from the Photos/HTML Board: "Put the copyright notice on your photo (© J. Smith 2003). That will prevent anyone from claiming innocent infringement and place this notice in your ad:

Other Sellers - The use of our copyrighted photos and/or text is strictly forbidden. Should you ignore this copyright notice and take it upon yourself to plagiarize our text and/ or use our photos for your own ads, you will be billed on a per-incident basis at a rate of $25.00. Using photos or text from this ad binds you legally to this agreement.

If someone is using your photos you might as well get paid for them.

From the U.S. Copyright office, Circular 1= . "Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of “original works of authorship,” '

Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright. It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright.

You own the copyright on any image as soon as you snap the camera shutter and it is fixed in tangible form, either on film, floppy or flash card. To say that anyone can legally use a copyrighted image (and all the images shown in the ads are copyrighted to the person who took that picture) without paying a usage fee or obtaining permission from the copyright owner is not true."

It's a great idea.

[budafist]

...Such a great idea in fact, I've added this to my website:

The use of our copyrighted graphics is strictly forbidden. Should you ignore this copyright notice and take it upon yourself to use our graphics, you will be billed on a per-incident basis at a rate of $500NZD. Saving and using graphics from this site binds you legally to this agreement.

[PrintDriver]

LOL! I was going to say, $25 is WAAY too low.
I wouldn't even put the cost on the website. Leave it at, "you will be billed our customary rates for usage" and leave it up to their imagination. And yours.
:D

[MarilynSwan]

This information comes from the Graphic Artists Guild's, "Handbook of Pricing and Ethical Guidelines". It is loaded with information for U.S. commercial artists and, I think, a must have to intelligently do business in this line of work.

In the U.S. surrendering all rights to your copyrighted work must be done in writing, however licensing some rights can be done verbally and the company can say they had a verbal agreement with you on the one image. Inorder to collect statutory damages and possibly court costs, the work would have to have been registered with the copyright office prior to the infringement.

It sounds like you agreed to the use of one image since you didn't communicate with them that you had changed your mind. But it also seems like you should send a letter emphasizing that you did not verbally or otherwise give permission to the use of the other images and they need to compensate you or stop using them or you'll seek legal action. If they really have no money, they can't afford the possibility of a law suit even if it isn't for damages.

[Jam]

Does being billed per incident mean every example - 100,000 print run = £250,000?
Nice money - now how do you lure people into this....hhhhhmmmmm!!

[panzer]

crazinesisay dont let this go
you have them over a barrel
you never signed the contract
surely these people are gonna be a lot out of pocket
can he also get the costs of the work he would of got if they would of paid some one and also damages as he didnt want his work to be viewed in this way???????
therefore they have damaged his reputation???
i may be talking bolls but i think its a fair point

[cornfed]

You do own the copyright whether it's been registered or not. Had you registered it, then the damages you seek would rise substantially. If it's not registered, then the damages are far lower. You need to see a copyright attorney. If you can, go ahead and register the work anyway. If they do another print run or anything, then your damages might go up at that point. I'm not sure, but an attorney would know. I was infringed upon a while back. I immediately saw an attorney. He didn't charge me for the initial consultation. He wanted to charge me $150 to register the work. I registered it myself for $35.

[MarilynSwan]

You can also register an unlimited group of unpublished works for the same fee.

[Jackimalyn]

Marilyn has a point, you verbally agreed, but you only verbally agreed to ONE im age so even if THAT stands up in court, you can get em on the other images.

I just wanna say how bad I feel for you! What a bunch of *****s! I know you dont want to go to court, but you have a pretty solid case and this guy deserves to be slammed with a lawsuit. Good luck

[Jackimalyn]

you cant say *****s?

[crazinessisay]

Thank you for all the great advice
I think I'm going to go ahead and contact a lawyer to see what I can do

[MPI]

Lawyers are great, but expensive - possibly costing more than your work is worth.

I'd probably just send them an invoice, with a contract YOU have written. Don't gouge them, but don't give them any breaks either.

Most states have limits on what you can get in small claims court, and it might be wise not to exceed that amount. Because when they don't pay, you'll be filing your claim there.

[budafist]

Please let us know how this all goes Craziness. Stealing work is a big problem. Hope this all goes well for you and you are compensated.

[unicorncorp]

Hope this all goes well for you and you are compensated.
For sure Craziness is entitled to some form of compensation..., lol, if these guys screwed with me, I would use the copyright law to its full extent, and take them down, so SHOULD you!

[MarilynSwan]

I like the small claims court idea, let Judge Judy get a hold of them!

Check to see if there are lawyers who handle artists' issues in your area, I believe there's a list by state in the Graphic Artists Guild book. Someone mentioned in a previous post that lawyers need to do a certain amount of pro bono work, just an idea.

[tZ]

Assuming they got these off of devient art are there any disclaimers on there that might give ownership to devient art? If so then that could be a promblem.

Otherwise, I would recommend going through the legal system.

[budafist]

5. Reporting Copyright Violations

deviantART respects the intellectual property rights of others and expects users of the Service to do the same. At deviantART's discretion and in appropriate circumstances, deviantART may remove Your Content submitted to the Site, terminate the accounts of users or prevent access to the Site by users who infringe the intellectual property rights of others. If you believe the copyright in your work has been violated through this Service, please contact deviantART's agent for notice of claims of copyright infringement, Daniel Sowers who can be reached through help@deviantart.com. You must provide our agent with the following information, which deviantART may then forward to the alleged infringer:


A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner.
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.


This is more for the case of if you see your work being displayed by a deviantart member as their own - not if your work has been taken off deviantart and being used elsewhere.



16. Copyright in Your Content

deviantART does not claim ownership rights in Your Content. For the sole purpose of enabling us to make your Content available through the Service, you grant to deviantART a non-exclusive, royalty-free license to reproduce, distribute, re-format, store, prepare derivative works based on, and publicly display and perform Your Content. Please note that when you upload Content, you allow third parties to copy, distribute and display your Content.



That sounds dodgey to me. What's this about third party use? Surely it can't mean they can print it off as their own...

[Drazan]

dA's new copyright issues are why many legit artists are/have pulled their work. Although dA says it's just to allow them to use your artwork for display - technically they could use it to do prints, advertisements, tshirts etc and not compensate you. As well as having that last statement which could be interpreted as giving up your rights to work to ANY third party.

Which is why I don't use dA to put up anything that could be used for profit. I just have pictures of my chainmaille and some other odd bits.

And yes they did make posters of many top dA artists for their 2005 summit that I went to. They didn't sell said posters, but they did display them as well as had a presentation with several slides of dA submissions.

If any one uses dA please put a copyright in each and every submission that you upload that says it supercedes dA's usage and what your copyright to dA is.

~~~~~~~~~
As far as the Guide saying that "verbal" is good enough to stand up in court is a bunch of BS. I could say that so-and-so said I could use the pepsi icon in an advertisement. You can better well bet that isn't going to stand up in court at all. Talking isn't a contract.

1 - if you do not want them to use your photos/images you have the right to force them to pull it all off their items.

2 - a nicely, but firm, worded letter should help you see results right away. Places like these are usually sub par and use things betting that the owner of the images ain't going to pursue them. Sadly this is true by many image stealers as the obscure owners of the images don't really care or feel that there's nothing that can be done.

3 - as of right now they are criminally stealing your work, in the US this could mean that you could bring criminal charges against them. However, if you do send a contract then expect to fight in a civil court vs a criminal case. In a civil court you would only be entitled money in a criminal court they could also be slapped with a misdomeanor or felony based on $ of amount stolen. Though this is entirely subjective to what your court allows for filings.

4 - so think hard on what you want to persue. Filing a small claims in court might be cheap -- $25 or so. But the best you would get out of that would be a judgement that the party may just ignore. And then you will be stuck with chasing them down leagally through more filings, lawyer etc to enforce the judgement and to see if you can get the courts to secure court ordered compensation - which is really hard to do for smaller amounts. Plus the judgement expires after x amount of years. Also note that you have to file any court procedings in the defendants jurisdiction. AND you will also have to appear in court which means travel expenses as well.

~~~~~~~~~~~

And thats why people get a way with things. The owners of the copyright don't have the $$ to do the enforcing.

Bully them with strongly worded letters that state what you are going to do if they do not pay or remove the items.

=)
Jade

[PrintDriver]

I have never really checked out the Deviant Art site. Just looking now, I couldn't find a definitive use statement there and not knowing the past culture of the site, couldn't figure out if the images were meant to be used as stock or if the place was just the 'personal glory' site I've always thought it was.

The way their copyright statement goes, a pro should know better than to post. I'm willing to bet that even the art that the high-profile artists pulled is still usable by DA in some way.

[tZ]

Please note that when you upload Content, you allow third parties to copy, distribute and display your Content.

isn't that basically saying anyone can use it for anything they wish? They can sell it as well? At least thats what I'm getting. Then again I'm not a lawyer,lol

If thats the case then you would need to prove in court beyond a reasonable doubt that there is a possiblity it could have been stolen elsewere…

[budafist]

Yes, unfortunately small claims court rulings are often ignored.

A friend of mine was wrongfully dismissed at work. She took the guy to small claims and he had to pay her $10,000 but didn't have to give her job back - probably because she didn't want it back. He never paid the money.

[altdzner]

"A copyright owner can only sue for infringement on a work whose copyright was registered with the Copyright Office, and can get statutory damages and attorney's fees ONLY if the copyright registration was filed before infringement or within three months of first publication. (17 U.S.C. 411 and 412). So you can't even file an infringement lawsuit if the copyright wasn't registered. FYI - It is EXTREMELY costly to file a lawsuit in federal court. Good Luck!!!!

[D-Frag]

"A copyright owner can only sue for infringement on a work whose copyright was registered with the Copyright Office, and can get statutory damages and attorney's fees ONLY if the copyright registration was filed before infringement or within three months of first publication. (17 U.S.C. 411 and 412). So you can't even file an infringement lawsuit if the copyright wasn't registered. FYI - It is EXTREMELY costly to file a lawsuit in federal court. Good Luck!!!!

but your missing the point here, that copyright law may be right for say like a design of an airplane or a nifty gadget, but copyright laws on artwork and photography are totally different. you don't have to copyright ANY of your work (unless you really want to) it is automatically YOURS and yours alone until you specifically sign a contract stating other wise. there is also a clause about having your picture taken in public, which I just learned. apparently if you are in public and i take your photo, I do NOT need you to sign a written release.

the laws are effed up, but the copyright law you stated has nothing to do with artwork. if photographers and designers had to copyright everything we do we would never get our work done :)

[NTLemon]

In regards to photographs D-Frag someone's image is copyrighted even in public however, use is allowed if the picture is newsworthy or editorial or for personal gallery use or if the person is not easily recognized. If they are used for profit or commercial work though you need one. So an advertiser could not use an image of someone off the street without their signed release but a reporter can. Also that same advertiser could use one of a large crowd where no one's image can be easily identified from it.

For a copyright issue, you might not be able to get damages if they believe they had a verbal agreement however for the additional images I would think it should be possible. If the only way to pursue a complaint was if your work was registered I think there would be a lot more blatant image theft.

[D-Frag]

oh for sure, i totally agree with the reselling part. i was talking more along the lines of editorial, personal gallery type stuff. ive only had a handful of people sign a written release when shooting on the streets, its pretty hard to convince a stranger to sign over the rights to another complete stranger :)

[Ned]

Does being billed per incident mean every example - 100,000 print run = £250,000?
Nice money - now how do you lure people into this....hhhhhmmmmm!!

Seeing as the copyright is on the intellectual property, and not the "finished product", I would say that "per incident" would include each placement encountered in each individual design. For instance, if the image appears on 15,000 CDs, the website, a newspaper ad which has a distribution of 100,000, and 10,000 flyers, that would be 4 instances - not 125,001 instances.

Therefore, Buda's figure of $500 per sounds a lot more reasonable than $25 per. xD

Oh yeah, and back to the original post... This is the RECORD LABEL?! If it were the musicians, it would be just as wrong but a lot more believable. But for the Record Label to claim, "we can't afford to pay you"? Musicians do what they love, and hope to make money of it. Recording companies are in business to make money, and that is their reason for being there. That means they can't afford to produce records, period. So find a different field, if you can't afford to be in business.

[Kool]

Since this thread is closing in on it's second birthday I doubt the OP is still looking for advice LOL ;)

[Ned]

Since this thread is closing in on it's second birthday I doubt the OP is still looking for advice LOL ;)

lol... I bet you're right. At least I know I wasn't the one who necro'ed it, since I linked here from New Posts. ;)

[TombstoneKid]

I have almost the same kind of problem. About 5 years ago I designed a rack card for an attraction. The attraction is located about 200 miles from my home. On this rack card for the attraction, I designed a Map showing how to get to the attraction. In 2005 the attraction was sold to new owners.

Now, this past weekend, I was staying at a hotel in the city of the attraction and saw their "new" rack card. They basically just re-made my original design (not as well even). Now, this doesn't bother me that much. What does is on the back of the rack card is a Map showing how to get to the attraction. And the funny thing is it is the EXACT SAME MAP!! There is one difference though. They left off the part on the bottom of the map that had my copyright information.

Doesn't this sound like willfull copyright infringement?

I'm still deciding what to do.

[PrintDriver]

Ask a lawyer. And check your original contract for the work.
There may be a division of the VLA in your state (Volunteer Lawyers for the Arts)

[Ned]

Yeah, it'd be best to check up with a lawyer on that. To me, it doesn't sound like copyright infringement. You designed that map for the attraction under contract, and it was included as part of your final deliverable, signed and paid for. I would consider it theirs to use as needed.

[PrintDriver]

Maps are weird. They are considered illustrations and technically the artist can retain rights to the image once created but if we contract one for a client we are darn sure the copyright or full usage is turned over in the contract for the client to do as they please. Most times a map will be done 'work for hire' and compensated appropriately to give the copyright entirely to the client. That's why I suggested the lawyer and to check the original work contract.

[Ned]

Ah, that makes sense. It would be an illustration, I suppose.... Most of my maps are so simple I don't usually care about them. xD

[PrintDriver]

Most of the ones we've had commissioned have been really complex. So that skews me in the opposite direction.:)