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Radical Rob
Bipolar (III) Inmate

From: Lost Angeles Kalifornia, via Hawaii....
Insane since: Jun 2001

IP logged posted posted 03-08-2007 17:48 Edit Quote

Ok, here's the basic premise of this small problem i have....

When asked to develop a site for a friend of mine, I put together several quick mock ups of the design. And after about 3 goes at it, the final layout was agreed upon and I proceeded to build the site. Well in the process of putting the mock ups together I searched for some images to use as a background.... what I found was an underwater shot with some cool looking bubbles. So I used that with the intention of eventually changing out the image.

Uh oh.... guess what, I forgot to change the image. In fact, I can't even remember where I got it from. SO, to make a long story short the owner of the company I built the site for was sent a letter from a lawyer demanding the image be removed and a fee of $1000 for damages be paid immediately.

I was floored... this was completely my fault, and before I get nailed here, it wasn't intentional. HONEST!

I haven't spoked to the owner of the company yet, a friend of mine is the VP gave me a heads up. He didn't seem too worried about it, but as the designer, I feel like an idiot.

How should I handle this? Obviously I'm going to remove the image. (i just found out yesterday)
I considered asking if we could license the image to save the headache and to let them know it wasn't a malicious usage, or anything like that.

First time this has ever happened to me...... any ideas guys?

twItch^
Maniac (V) Mad Scientist

From: Denver, CO, USA
Insane since: Aug 2000

IP logged posted posted 03-08-2007 18:10 Edit Quote

Quite a little snare you've gotten yourself into. Well done.

I'd say see if you can work out a licensing agreement. $1,000 is awfully extreme, even though you are obviously in the wrong (though an honest fault, not an intentional action). No reason you can't be dealing with level-headed folks who can listen to reason. Good faith measure would be to remove the image immediately before pursuing any licensing agreement.

-steve

Nemesis
Bipolar (III) Inmate

From: Uranus
Insane since: Aug 2003

IP logged posted posted 03-10-2007 03:40 Edit Quote

Claim ignorance.

Appoligise profusely, remove the image immediately and explain that you had found the image online and was under the impression it was royalty free. Claim you went back to the royalty free sites that you visit because you don't remember which one it was from and can no longer find said image. Even explain that its not your habit to even use royalty free images, and that you had only done so for a mock up but due to unrelated issues never got around to replacing it.

Sympathize with the person, agreeing that you yourself would not want your work claimed as someone else's, and never would under any circumstances knowingly do so, and then question them as to why they would not have simply brought that matter to your attention, for which you would gladly have removed the image.

Tell them you will gladly pay the $1000, but all financial transactions are subject to a $1500 administration fee, which needs to be settled first. (Actually, don't do that)

Ask them to justify the damages, and explain to you why on good faith they had not communicated their concerns. As artists / professionals a need exists to look out for each other.

And get this thread deleted!

Suho1004
Maniac (V) Mad Librarian

From: Seoul, Korea
Insane since: Apr 2002

IP logged posted posted 03-10-2007 04:20 Edit Quote
quote:

Nemesis said:

Claim ignorance.



Ignorance is not a valid defense.

quote:
Appoligise profusely, remove the image immediately and explain that you had found the image online and was under the impression it was royalty free. Claim you went back to the royalty free sites that you visit because you don't remember which one it was from and can no longer find said image. Even explain that its not your habit to even use royalty free images, and that you had only done so for a mock up but due to unrelated issues never got around to replacing it.



In other words, lie in an attempt to weasel your way out of responsibility? None of this changes the fact that an image was used without permission.

quote:
Sympathize with the person, agreeing that you yourself would not want your work claimed as someone else's, and never would under any circumstances knowingly do so, and then question them as to why they would not have simply brought that matter to your attention, for which you would gladly have removed the image.



Ah, yes, try to shift the blame to them and make them seem like the bad guys. <Mr. Burns>Excellent.</Mr Burns>

quote:
Tell them you will gladly pay the $1000, but all financial transactions are subject to a $1500 administration fee, which needs to be settled first. (Actually, don't do that)



Uh, yeah. Are you from Nigeria, by any chance?

quote:
Ask them to justify the damages, and explain to you why on good faith they had not communicated their concerns. As artists / professionals a need exists to look out for each other.



In case my sarcasm went undetected in the Mr. Burns comment: there is no way you win this battle by trying to make them out to be the bad guys, especially when you are in the wrong.

quote:

And get this thread deleted!



Or at least these last two posts.

Follow twItch^'s advice. Remove the image immediately (if you haven't done so already). Then attempt to reason with them--not the lawyers, but with the guy whose work you abused, if possible. Be completely honest. If he's a decent individual, he may not insist on the payment for damages. $1000 does sound like a lot, but unless you're interested in spending money on legal fees to contest the amount (not the payment itself, just the amount), I'm not sure that you have much of a choice.

Anyway, immediate removal of the image should be the first step.


___________________________
Suho: www.liminality.org | Cell 270 | Sig Rotator | the Fellowship of Sup

Nemesis
Bipolar (III) Inmate

From: Uranus
Insane since: Aug 2003

IP logged posted posted 03-10-2007 05:05 Edit Quote

Mr.Burns: Quick Smithers. Bring the mind eraser device!
Smithers:You mean the revolver, sir?
Mr.Burns: Precisely.

A decent individual would have emailed and complained about the the problem first and foremost without immediately seeking legal action and going after damages. Not everyone in this world is out to "abuse" others work.

I have had it done to me, and I realize how mad it makes someone... but shooting first and asking questions later is not the best practice.

The fact that Rob asked for advice on the mistake tells me that he probably like myself doesn't have the ability to throw $1000 at the issue and take it as a learning lesson.

My suggestion was a way to try and get out of having to do that.... in the same way you would try and get out of a speeding ticket.

I was in no way implying that ignorance justifies anything... obviously the work has to be removed immediately. And the guy, definately needs an appology. But $1000? Without the chance to explain and remove it?

I would also change the practice of using other peoples work. Even in mock ups.

Jason

Suho1004
Maniac (V) Mad Librarian

From: Seoul, Korea
Insane since: Apr 2002

IP logged posted posted 03-10-2007 13:53 Edit Quote

Well, it doesn't really matter what a "decent individual" would do in this sort of situation. Do I think that going straight to legal threats and demanding a $1000 dollars in damages is a bit severe? Yes, I do. It's defintely not how I would have handled it. But the fact of the matter is that Rob is in the wrong here. Even if $1000 is excessive, attempting to fight it legally would cost as much if not more (which is probably what the lawyer is banking on).

I wasn't suggesting that Rob just pay the grand and take it as a learning lesson. I agree with your intent, but I don't agree with your method, namely trying to make the guy feel bad for shooting first and asking questions later. It may be a bit harsh, but he is within his rights to pursue legal action.

Rob: you did this work for a company, right? Talk to their legal team and see how justified this guy is for asking for a grand in damages. And I'll say it again: see if you talk to the artist directly, not through his lawyer. He might be more willing to let you off the hook if you go to him directly.

And I would agree that using other peoples' work even in mockups is probably not the best idea.


___________________________
Suho: www.liminality.org | Cell 270 | Sig Rotator | the Fellowship of Sup

DL-44
Lunatic (VI) Inmate

From: under the bed
Insane since: Feb 2000

IP logged posted posted 03-10-2007 16:52 Edit Quote
quote:

Nemesis said:

A decent individual would have


Just to play devil's advocate here, it could as easily be argued that a "decent individual" would not have used someone else's copyrigthed material on a professional design project. Keep in mind, this isn't someone's personal site - it's a professional venture for which the designer was paid. And it would seem that the person or group from which the photo was taken is one that is accustomed to being paid, and probably well, for their work.

I would say that almost without exception, this kind of case can easily be setteled by reasoning with the person whos property has been taken, without resulting in paying $1,000.

*IF* it is approached correctly.

Approaching it as if you are not in the wrong when you clearly are, or approaching as if the person whos property you took is somehow in the wrong is the surest way to get absolutely nowhere - end up losing out financially, losing the respect of your client (and all the bad word of mouth that can generate), and just generally knocking yourself down a peg or two.

So I must strongly reiterate twitch^'s advice - make sure the image has been removed (like, it should have been done within moments of getting this information), get in contact with the person/company, and see what you can work out.

Mistakes happen, and can be rectified...

Steve
Maniac (V) Inmate

From: Boston, MA, USA
Insane since: Apr 2000

IP logged posted posted 03-10-2007 20:52 Edit Quote

The above comments seem to assume that it is an individual seeking damages. Individuals potentially can be reasoned with. If on the other hand it is an agency I don't know that there is much leverage. Unfortunately, what Suho said about ignorance is true.

I hope it works out okay. And I'm glad you brought it up because it's an important reminder to everyone not to take intellectual property - whether words, music or images - casually. It's really easy to fall into a situation the way Rob did, and the image industry doesn't make it easy - at the one extreme you have 1,000 "royalty free" images on a $40 CD, and at the other extreme you have a per/image negotiation based on usage that can be VERY costly for web sites. There is NO rhyme or reason to it, and a lot of times it feels like a wreck is inevitable, just a matter of when.

And I think the whole term "royalty free" is largely misunderstood. I'm no professional graphic designer. I have a small web project, and the client for that wanted an image of So. America with his company name wrapped around it for what he called a "logo", to be used on letterhead and such. He's a one-person startup with even less experience than I when it comes to image usage. Neither one of us had an appreciation for the deep implications associated with the term "logo" - we were both using the term too casually. I found an image on iStockPhoto that included several vector globes and thought I could use the one that showed So. America as the base for this guy's graphic. But the iStockPhoto terms say "not for logos". So I wrote and got two very cordial , very professionalbut very clear messages from their support. "Not for logos" means "not for logos". I'm glad I asked first.

Big agencies can afford art buyers to monitor rights and licenses. Small shops (like Rob and me and many of us) have to rely on ourselves and that doesn't always work perfectly.

Nemesis
Bipolar (III) Inmate

From: Uranus
Insane since: Aug 2003

IP logged posted posted 03-11-2007 03:13 Edit Quote

Rob definitely is wrong. I wasn't in anyway implying that his actions were justified or even remotely right. Hell, it would be quite easy to rant about knowing better and karma. Especially from someone that hangs around here! But I have lurked around here long enough to get a feel for what people seem like. Rob seems to be a decent guy to me, which is why I didn't question him say it was an honest mistake. In many ways its on par with knocking up your sister, but I think he's figured that one out!

My intent wasn't to belittle or make the "victim" feel bad either. He/she is more than justified in the actions they took, even if a little extreme. Like I said, I have been there and I know how pissed off one can get, especially if it has happened to the individual frequently.

My intentions were more for the lawyer. It was more of an attempt at disarming a case to begin with, so that further action is not sought. The lawyer probably wouldn't recommend pursuing something that would probably just get thrown out of court.

That was all based on the assumption that someone who immediately pays a lawyer has more than getting his/her work removed in mind. I admit, its a bit cynical, but that was my gut reaction to what I interpreted.

My interpretation was also based upon the individual being more of a regular joe like us, not some huge firm or internationally renowned photographer. I guess more information is really needed to avoid the ass u me thing.

If the art was taken from a bigger firm, who would obviously have frequent access to lawyers, and maybe even have their own legal department, then certainly my outlook would have been different. Like I said it was based on my interpretation at the time, and of course other factors would change it.

In any case, I hope it all works out and he is able to work something out thats a little cheaper. I also hope he and anyone else reading this certainly learns from the mistake and never repeats it. From scratch is the only way.

If he does get off the hook completely, I would consider writing a formal apology with some gift certificates or something. Just not a $1000 worth.

Jason

Dl- I agree totally with you. The devil has always been my friend. There are other implications than just the $1000, and I certainly wouldn't have recommended anything like that if the client was not his friend.

Radical Rob
Bipolar (III) Inmate

From: Lost Angeles Kalifornia, via Hawaii....
Insane since: Jun 2001

IP logged posted posted 03-15-2007 18:49 Edit Quote

Man, I feel like the guy on the stand being charged with embezzlement or something.... but, yes I will re-state that I totally know I was in the wrong, hands down. The thing that sort of killed it for me was my personal email link was at the bottom of the site and I never got any type of warning or anything. The VP of the company didn't seem to phased by it all, and of course upon finding out I removed the image.

I'd point out the site but to be honest, i'm a little insecure about the feedback i'd get here. :-) My friend/client was happy with it so I'll leave it at that.

I haven't heard back anything since removing the image but I was totally prepared to eat the $$ on the next project I was going to do for them. I'm not exactly hurting for the money, but I do think a little heads up would have gotten the same results.

I remember a while back I read a long thread discussing what to do if your work is ever used without permission and it was almost a long, winding, battle, usually with little end result aside from having the violators content removed.

I totally appreciate the feedback, I respect alot of your opinions otherwise I wouldn't have thrown this in the "pool" for opinion.

I will update as I am informed. :-) cheers.

twItch^
Maniac (V) Mad Scientist

From: Denver, CO, USA
Insane since: Aug 2000

IP logged posted posted 03-16-2007 02:53 Edit Quote

my favourite part is where he says, "I respect alot (sic) of your opinions." (emphasis mine)


love ya.

-steve

argo navis
Bipolar (III) Inmate

From:
Insane since: Jul 2007

IP logged posted posted 08-19-2007 21:22 Edit Quote

Hmmm. Actually, assumptions, morals, and perception have little to do with... law.

To which state's law is the image copyright subject? Was it registered in any way? Is there any kind of trademark
or watermark set to prove the creator's point?

Because in the end, and I understand why the customer was not shocked... in the end, it boils down to that :
if the maker did not explicitly claim copyright at first,
managed to post a version of the image which doesn't allow recognition of the author, I'd say he has no right to anything, anytime under most occidental countries laws - not even an answer to his claim.

Laws exist for cases like this, where individuals or groups of individuals have a perception of what is fair,
and the reality may be different. Speaking about a devil's advocate...

Suho1004
Maniac (V) Mad Librarian

From: Seoul, Korea
Insane since: Apr 2002

IP logged posted posted 08-20-2007 00:48 Edit Quote

I really don't think this thread needed to be dug up again. I'm sure that the original incident has been handled. Can we let it die now?


___________________________
Suho: www.liminality.org | Cell 270 | Sig Rotator | the Fellowship of Sup

Petskull
Maniac (V) Mad Scientist

From: 127 Halcyon Road, Marenia, Atlantis
Insane since: Aug 2000

IP logged posted posted 08-20-2007 15:27 Edit Quote

Whatever happened with this, anyway?

Was Radical Rob ever seen again?

Blaise
Paranoid (IV) Inmate

From: London
Insane since: Jun 2003

IP logged posted posted 08-20-2007 17:05 Edit Quote

I think you all scared him off!

Radical Rob
Paranoid (IV) Inmate

From: Lost Angeles Kalifornia, via Hawaii....
Insane since: Jun 2001

IP logged posted posted 08-27-2007 22:45 Edit Quote

no still here... i figured that if I just stuck my head in the ground the evil "copyright mongers" would go away. And guess what! They did.

And it only took $800. :-)

Funny thing about it is that now another photographer is screaming lawsuit and it was an image that the president of the company got approval for. Go figure.

Learned alot thanks to this fiasco. (Ala never use copyrighted material, even in development stages)

Thanks guys!



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