Photo copyright issue

We have made a photo of a mobile device, watermarked it and posted on a website. Other website took photo, removed watermark and slightly rotated it/deskewed it. When we have kindly asked them to return watermarked version or at least link to original web site, they claim that after the transformation, it is different picture and we do not have any rights!?


Any oppinions or experience?


Here is the quotation


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It is no longer your picture, as it is in fact a combination of two pictures that have been manipulated in photoshop, with the background removed, the picture deskewed as various tools were applied to preserve the image. The picture looks very little like your picture.


As a transformative work it does not infringe on your copyright. You no more own the copyright to the picture than manufacturer of device owns the copyright to yours. See more here. http://en.wikipedia.org/wiki/Transformation_(law)


***

Well, at least they admit to taking your picture & manipulating it, which is a positive thing in your favour. Unless this has been done under some sort of fair use, parody or artistic sort of things, I can't see they have a legal leg to stand on. You cannot legally just go round stealing images, changing them and using them for commercial purposes, as seems to be indicated here. Transformative use usually has to be in the public interest. Without seeing it, it's hard to say much more.

Sounds like it's time to lawyer up!

Here is the original on left and processed picture is on the right.


The chief editor of very visited website sent us this combined photo explaining that it is completely different and no longer our picture


http://ai.rs/stolenphoto.jpg


Any lawyers? Watermarked version and link to source was enough to us.


We thought to additionaly process pictures and put them on stockphoto, but now I do now now weather I should do that.

The Wikipedia resource the pirate referred you to does not make his case. .in fact it contradicts his own argument. My reading of the analysis of 'transformative' would require that the work be substantially transformed and/or fall within certain uses that are either to parody, comment upon, or otherwise describe the original work. But to minimally change it, and I mean minimally, and then use it as a similar commercial entity seems to me to fail the substantive transformative test.

What?! They can hardly claim that the picture is no longer recognizeable (not that that's justification in this case anyway). If you feel like it's worth it to you to take things to the next step, I think you definitely have a case.. Good luck! Mikey.

Why don't you post the url of their website here, so that all of learn which crappy company has such respect for copyrights ? Not that I'm sure they would enjoy receiving some hate mail or bad publicity over the web, but....

You know what? I'm going to disagree with everyone here. The photo is so generic that I don't think it's worth following up on. It might be your photo (um, how do you know that it is? They could easily take something similar) and if it is, your rights are indeed being infringed.


But it's not a particularly creative or interesting photo. It's frankly not a photo to be proud of, to put in your portfolio, to show your mother, to fight over. Also, it's not sold through iStock, so you're not going to be able to call on the iStock team to defend your work. (let me be clear, if you sold it through iStock, I would recommend letting iStock handle the infringement question).


I say: let it go, and spend your time making more photos, not fighting this.

@kickstand, it is my photo... maybe it looks to you generic, but the photos are exclusive, the device is very hard to obtain now so maybe it changes your opinion?


I intended to put whole session on istockphoto, without watermark, but do not know if I am able to do that now?


Here is another stolen / badly de-watermarked photo (mobile-monster.ru/wp-content/uploads/2009/09/13.jpg)


How do I know it? It is in my hand

(Edited on 2009-10-04 18:02:53 by drjovan)

If the device is very hard to obtain, then I guess you might have a case. Still, to an inexpert observer, it would be hard to convince them that the photo used was yours, I would think. Your case would rely more on the uniqueness of the device, rather than the uniqueness of the photo. And for what would you be suing? Punitive damages? Have you lost income over the use of the photo? Does the infringer even have any money to pay out?

By the way, I would expect the highly specific design of the device would preclude it from being accepted on iStock, regardless of who else used the photo. (Do you see any iPhones on here?)

Keep in mind that all the advice above is worth exactly what you paid for it. I'm not a lawyer or copyright expert. Also, the infringing site appears to be Eastern European, and I have zero what the copyright policies are over there (I'm based in the US). I do know that some countries don't even recognize copyright.

(Edited on 2009-10-04 19:08:21 by kickstand)

/
/As stated above by others, I'm no lawyer so anything in this post is NOT legal advice.


That said, firstly to my understanding of copyright laws, derivative works are a violation of copyright laws unless exempted by personal use clauses, etc. No idea where this guy is at, so don't know what laws he is referring too. Perhaps his country is different; or perhaps I'm wrong. So, I'm on your side with the question at hand.


I am posting to add another question to the mix; where you might be in the wrong. The HTC logo being prominently displayed in your photo, as well as an identifiable device design, could cause you some trademark trouble of your own. Your call, just thought I would call it to your attention. I am almost certain iStock would reject it for trademark issues.

One things for sure; if the guy is right - iStock is done for! Can you imagine if our images could be used with that little bit of 'transformation'! I think you'd be hard pressed to find an iStock image in use with that LITTLE amount of transformation! So ... everything here would be free to grab.







(Edited on 2009-10-04 20:00:28 by JenDen2005)

I am with kickstand and JenDen2005 on this. It is plain product image of a third party copyright property.


How about HTC sues both of you for using their design and name without permission?

Just to be clear: I don't think drjovan necessarily did anything wrong in photographing the device. There are no laws against photographing devices with logos! Also, I'm not arguing that bloggers have the right to go around copying and modifying other people's photos.


But I don't see that you have recourse for this particular photo in this particular use. Better to focus your energies elsewhere.


P.S. It strikes me as a little odd that you have "exclusive" photos of an unreleased, unavailable product. If you signed a NDA, you might indeed be forfeiting your future relationship with this device company.

True enough that you can photograph them; but using the images for commercial purposes is a whole different story. There are indeed laws and civil liabilities for doing such.

@JenDen2005: It's not clear that drjovan used the image for anything. Frankly, it's not clear to me why he took the dang picture in the first place, or why he thinks it's so important.

(Edited on 2009-10-15 09:37:44 by kickstand)