Forum Moderators: not2easy
Just recently I noticed that one of our competitors has taken our main product pictures and altered them just a bit, put on their own names, and use them on their websites.
It was shocking to see, because we are one of the leaders in our industry, and have the most beautiful and professional-taken product pictures online, (that's easily identified as ours).
After sending them a friendly quick notice on that we have found them, please stop this... they do not reply and just alter the images a tiny bit more.... (so looks like they are tough cookies)
What can we do? Any advise is appreciated, any sample warning emails is also welcomed, thank you!
What country is the other site in?
If you are confident that you can prove plagarism, and are willing to scare them, send them an "official" (company signed, notarised, registered post) ceast and desist letter.
If they still continue, get a professional to send a letter informing them of your intention to take legal action if they do not stop.
If they STILL continue, get some quote off your lawyer as to costs, and decide whether you really care enough to pay your exhorbitent legal fees taking them to court ;)
If both sites had similar pictures of, say, the Statue of Liberty, it might be a coincidence. But if both showed the same two models standing in front of the same car from the same angle and distance, there shouldn't be a proof problem.
(civil burden of proof is whether they PROBABLY copied your pics,... not beyond a reasonable doubt)
Your pics were professionally taken; the photographer would have records of when the photos were delivered to you.Does the photographer think they were his work?
You can use Archive.org to establish when they went up on the other site.
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Could your photographer have sold the photos twice?
Who owns the images? You or the photographer?
Are the images registered (if in the US or Canada)?
I'm not a lawyer but I am a professional photographer. Registration in the US is defacto proof of ownership.
Speak to your attorney.
Sorry for my late reply, I wasn't online last nite.
To answer your questions,
The other site is a US site, small mom and pop looks like.
It is very easy to prove altering of our product pics, because they looks still identical, they just erased couple of our brand labels and put on their name, but looks like terribly coarse work! So pretty much any one can tell that's wasn't an original.
We have the rights to the pics, not the photographer. Because it was like Dell hiring someone to take their pc pictures, of course Dell owns the pics.
Any other thoughts?
Thanks a lot!
Another way is to trap them. Get another photograph taken, send it to yourself by a recorded delivery company. DO NOT OPEN THE PACKET WHEN YOU GET IT! (IMPORTANT!) Then if needed, this can be used as evidence in court, where it can be opened and it is dated and recorded by the courier. It is proof of ownership. Now, it can legally (UK and US at least) be declared as copyright. This can be used to communicate with the offending company.
Requests by email do not come across as being serious. Change your method to post (if you know their address) and send everything by recorded delivery. Once they sign one a open it, they know you evidence of receipt!
Why not send them a bill for the pics...plus interest at 18% a year...compounded.
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I'm always finding segments of our site on others...especially our meta keywords which are seeded with nonsensical words.
Mostly I take it as a compliment, then I act pizzed as hell.
If it's a mom and pop site, my advice is forget about it (and sounds like they've done a rough job anyway) if you have no success with a couple of stern letters.
If it's a competitor then it's worth getting heavy so call in the lawyers.
You have to draw a line in your head between the commercial "this is going to cost us money/reputation/brand damage" and the impassioned "I'm really p*ssed at these people and want blood".
The latter only lasts a few days, then you start to laugh at what a botched up job they've made of it.
TJ
A good place to prove first use is the Wayback Machine. It really seems to scare some people to see that what is on the Internet is saved, and can be used against or for you.
jb
Notice and Take-Down ProvisionsCertain of the Act's exemptions apply only if an OSP complies with the notice and take-down provisions of the Act. These provisions allow copyright owners to notify an OSP of allegedly infringing material on the OSP's system and require the OSP to remove or block access to such material after receiving such notice.
Designated Agent of OSP. An OSP must designate, both to the Copyright Office and on its service, the contact information for an agent that will receive such notices.46
Form and Content of Notice. A notice from a copyright owner must be in writing and must be signed by such copyright owner or his or her agent and must include certain specified information, including an identification of the allegedly infringing material and information reasonably sufficient for the OSP to locate the material or the reference or link to it. If the OSP receives a notice that substantially complies with the Act's requirements, then the OSP must act expeditiously to remove or block access to the material that is alleged to be infringing in order to remain eligible for the exemption from liability.
Misrepresentations. The Act provides that anyone who knowingly materially misrepresents under the Act that material is infringing is liable for any damages incurred by an OSP or a User as a result of the OSP relying on such misrepresentation in removing or blocking material.48
Subpoenas. The Act also provides a procedure by which a copyright owner can obtain from a court a subpoena directing an OSP to disclose to the copyright owner information sufficient to identify an alleged infringer of material as to which the owner has sent a notice to the OSP.49
"Take Down" Procedures
Exemption from Liability. If an OSP in good faith removes or blocks access to material that it has cached, stored at a User's request, or referred users to, either because the OSP has received notice from a copyright owner or because the OSP has become aware of information from which the infringing nature of the material is apparent, the Act exempts the OSP from any liability for such removal or blocking.50
Notice and Putback. In the case where an OSP removes or blocks material stored on the OSP's system at the User's request (such as the User's Web site) because the OSP has received a notice from a copyright owner alleging infringement, the OSP must take additional steps designed to protect the User's rights, and which may lead to putting the material back on the system.
(1) The OSP must take reasonable steps to promptly notify the User that the OSP has removed or blocked the material.
(2) The User may then send a "counter notification" to the OSP stating that the removal or blocking was a result of a mistake or a misidentification of the material. (The Act provides for liability to the OSP and the copyright owner for knowing material misrepresentation in such counter notification. 51)
(3) If the counter notification complies with the statutory requirements, then the OSP, to remain exempt from liability for the "take down", must provide a copy of the counter notification to the copyright owner that sent the original notice.
(4) Unless such copyright owner then notifies the OSP that the owner has filed a court action seeking to restrain the alleged infringement, the OSP must replace or unblock the material within 10 to 14 business days of receiving the counter notification.
[edited by: atadams at 6:41 pm (utc) on Dec. 9, 2003]
I'm a lawyer by education (long time ago) and I don't think that's the case.
If the SEC/FBI lived by that rule, Martha Stewart would be about #82,000 on their list of worthy defendants. And our courts would be hopelessly clogged with minor suits.
True, you can lose if the statute of limitations runs out. Don't know what that would be for copyright violation. Probably many years.
