A Major Brand-Name company is using my photo to promote sales on Facebook

[laportraitstudio]

<p>I shared a photo on their Facebook page in an effort to sell it to them and they now have my photo posted as a "Note" promoting their "Pink" products. Did I inadvertently relinquish copyrights when I shared the photo with them and posted it to their Facebook page?<br>

I posted it (with my business watermark) onto their Facebook page hoping it would get into the right hands and they might want to purchase it, but I never gave any indication that they could use it to sell their own products with a "portion" of the proceeds going to Breast Cancer Awareness.</p>

<p>What should I do, short of calling a lawyer? Any ideas?</p>

<p>If you are familiar with this type of situation, please share with me!<br>

LeighAnn</p>

[maximphotostudio]

<p>LeighAnn, don't call them quite yet. First, you need to read the FB photo use terms and conditions. Second, you need to establish "definitively" all the places that they are using your image. For example, are they using it on their website, blog, other marketing materials, etc. The reason why it is important is because if you call and say that you want it pulled from FB, they may agree to pull it and/or pay you for the use. You then may find out that they are using it everywhere else, you would be out of "money" having allowed them to use it in FB. Also, keep track of the locations and the number of usages of your images. Once you've established all the facts, then contact them to see what their response is. If nothing gets done or they give you a runaround, contact a copyright attorney.</p>

[laportraitstudio]

<p>Thanks for the information. My goal in sending them the file was to hopefully get an offer of purchasing image rights. I hate to ask them to pull it because it's great exposure for both myself and the model, but I also hate (a little bit more) that they're using it to profit on their product sales.</p>

[maximphotostudio]

<p>LeighAnn, is your logo visible in the image? If it is, then you have some publicity, otherwise it is probably copyright infringement...based on FB terms and conditions.</p>

[mikael_karlsson]

<p>Max:<br /> <br /> Getting publicity has absolutely nothing to do with if it is copyright infringement or not. If someone use an image of mine without permission from me they are infringing on my copyright regardless of if that image usage generate massive or zero publicity for me.<br /> <br /> ******************<br /> <br /> LeighAnn:<br /> <br /> Assuming you're in the US. Register your copyright for the image at http://www.loc.gov Find the pages where they are using your image and take screenshots. Think about if you want to get an attorney involved.</p>

[maximphotostudio]

<p>Mikael, I agree with you in part. Copyright infringement is apart from everything else. Either it or it isn't. However, if LeighAnn sees a reasonable increase in her revenue as a direct result of the watermarked image and publicity, then perhaps she should not call the copyright into question. Even though is it technically a copyright infringement.<br>

LeighAnn, Mikael's second point is great. Copyright it before you contact them.</p>

[craig_gillette]

<p>In addition to checking the Facebook policies, review the terms and conditions of the company with respect to unsolicited submitted materials, any terms that might apply to the particular submittal site, etc. They may have boilerplate that allows them to use submitted materials. Many "contests" include language that provides for substantial transfer of rights when submitting entries, etc. The way you submitted the image may have been through a similar portal. Alternatively, there are companies that strictly firewall or discard any unsolicited submissions to reduce or eliminate any question of where an idea or some other sort of "property" came from.</p>

[richard_weisgrau2]

<p>LeighAnn,<br>

The Facebook terms of use state:<br>

"You own all of the content and information you post on Facebook, and you can control how it is shared through your <a href="http://www.facebook.com/privacy/">privacy</a> and <a href="http://www.facebook.com/editapps.php">application settings</a>. In addition:</p>

<ol>

<li>For content that is covered by intellectual property rights, like photos and videos ("IP content"), you specifically give us the following permission, subject to your <a href="http://www.facebook.com/privacy/">privacy</a> and <a href="http://www.facebook.com/editapps.php">application settings</a>: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook ("IP License"). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it."</li>

</ol>

<p>So whether you there has been a copyright infringement or not is dependent upon your privacy and application settings. It is also dependent upon Facebook's "non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook." Effectively that term you agreed to when signing up with Facebook allows them to use any of your content and since it is "transferable" they can allow others to use it. Is is possible that Facebook granted the right to the user you are concerned about? <br>

You need facts that you do not have to determine if there has been an infringement.</p>

<p>Dick Weisgrau<br>

www.weisgrau.com</p>

 

[joeb]

<p>If they remove your watermark, that is a violation of the Digital <strong>Millennium Copyright Act</strong> (DMCA)</p>

<p>

<p align="left">(i) to remove or alter any electronic rights</p>

<p align="left">management information without authority;</p>

<p align="left">(ii) to distribute, import for distribution, broadcast</p>

<p align="left">or communicate to the public, without authority,</p>

<p align="left">works or copies of works knowing that electronic rights</p>

<p align="left">management information has been removed or altered<br>

without authority.</p>

<p>Good Luck,</p>

<p>Joe</p>

</p>

[csafdari]

<p>You should always challenge a copyright infringement even if use of the photos may bring you some publicity because if you don't you may be deemed to have waived your copyright claims in the photos, making them part of the public domain. <br>

Your rights: Use 'em or lose 'em.<br>

(This is my opinion only and is not legal advice. If you need legal advice, see a licensed attorney who is authorized to practice law in your jurisdiction)</p>

[mizore]

<p>All places that traditionally used IP have very strict guidelines as to how amateurs and hopefuls could submit work to it for sale. If you asked for the submissions guidelines and followed the established procedures for submitting a work for consideration for purchase, then you haven't given anything up. If you sent in a letter to the editor, it's accepted that you have given permission for the work to be used gratis in the paper.</p>

<p>Most publishers and I would suspect most movie companies are more afraid of being sued wrongfully by someone who decides that having a magic falcon in a book means the writer stole it from a workshop story than they are interested in stealing anything from a writer with talent. Most movie companies absolutely will not ever look at anything that comes in unagented.</p>

<p>Most advice on copyright on line is wrong -- see an IP lawyer if you need help. You don't need to register copyright to hold it.</p>

<p>You don't "waive" copyright claims by not challenging them. A whole subculture thrives on using professional author's characters in pastiche fiction -- and anyone who fussed very hard about that would bring down heaps of ill-will from people who love the work enough to do the pastiches.</p>

<p>If you want to be a professional photographer, follow the guidelines given for submitting work to professional markets. Posting your work as part of a comment on the company website/Facebook page doesn't obligate them to treat you as a professional. If they're making secondary uses of this, then you should ask them to remove them and contact a copyright lawyer, but read Facebook's terms carefully.</p>

<p>If you post a photo in comments, I would think it would be like a letter to the editor. There's no reason for anyone to think you were trying to sell it to the company unless that's how the company states it buys photos. Check Facebook's terms of service and related webpages for what you may have given them. The company probably has an ad agency; contact them to find out how to sell photos to them.</p>

<p>For writers, "We all lie to Writer's Marketplace" is worth keeping in mind (comment a friend's editor made). I suspect the same applies to the Photographer's Marketplace, but it's a place to start. The best thing to do is ask for freelancer guidelines and go from there.</p>

<p> </p>

[csafdari]

<p>Whether you earn ill-will by pressing your rights or not is irrelevant to the legalities. If you do not defend your intellectual property rights you can be deemed to have waived them. </p>

[mizore]

<p>Um, Cyrus, no. Copyright is not like trademarks. </p>

<p>Basically, Facebook spells out what you pay for playing there. Unless you say otherwise, they've got the right to use material posted to their site. If you give stuff away, you've given stuff away.</p>

<p>Don't give photographs away if you want to be paid for them. Follow guidelines for submission to paying markets. Read the fine print.</p>

<p>And if this is really really important, send a take down notice as the copyright owner of the photograph.</p>

<p>http://www.copyright.gov/help/faq/ might be useful. </p>

 

[csafdari]

<p>Ummm, Rebecca, yes you can.<br>

The principle of waiver applies not only to copyright but also other areas of law (including real estate and contract law) Not only can you be deemed to have <strong>waived</strong> your rights if you don't enforce them, but you can also be deemed to have granted an <strong>implied license</strong>. There's also the defense of <strong>laches</strong>.<br>

The OP should not simply ignore an infringement but should at least seek competent legal advice.<br>

As for Facebook's terms, those are a separate issue. In general if the terms involve granting them a license, then you must agree to do so when using their services (which is why I don't put my photos on facebook. The terms can be changed at anytime, without prior notice.) However just because their terms say something doesn't mean that their necessarily <em>legally binding</em>. So again, one should seek competent legal advice and not rely on what we say here.</p>

 

[csafdari]

<p>Ummm, Rebecca, yes you can.<br>

The principle of waiver applies not only to copyright but also other areas of law (including real estate and contract law) Not only can you be deemed to have <strong>waived</strong> your rights if you don't enforce them, but you can also be deemed to have granted an <strong>implied license</strong>. There's also the defense of <strong>laches</strong>.<br>

The OP should not simply ignore an infringement but should at least seek competent legal advice.<br>

As for Facebook's terms, those are a separate issue. In general if the terms involve granting them a license, then you must agree to do so when using their services (which is why I don't put my photos on facebook. The terms can be changed at anytime, without prior notice.) However just because their terms say something doesn't mean that their necessarily <em>legally binding</em>. So again, one should seek competent legal advice and not rely on what we say here.</p>

 

[john_h.1]

<blockquote>

<p>he principle of waiver applies not only to copyright but also other areas of law (including real estate and contract law) Not only can you be deemed to have <strong>waived</strong> your rights if you don't enforce them</p>

</blockquote>

<p>Copyrights are governed by statute, namely, the Copyright Act. Discussion of waiver elsewhere in the law is irrelevant.</p>

<blockquote>

<p>you can also be deemed to have granted an <strong>implied license</strong>. There's also the defense of <strong>laches</strong>.</p>

</blockquote>

<p>That assumes the situation described, an offer to use the image if paid, amounts to an implied license. I recommend you study this issue more thoroughly. Also laches applies only if the defendant is in a worse position due to delay.</p>