I work for a small tech startup. I was recently contacted by an relatively unknown artist (creator of various household objects like lamps and stools) who claims that in a recent email my company sent to roughly 10,000 users (it was a retention email trying to get people to come back to our service) we used a photo (of a random household object) of one of their creations without their permission.
The artist is 100% right, our communications guy goofed and neglected to buy a stock-photo image and instead used a google image search for the email. Unfortunately for him, one of the 10000 former users who received the email happens to sell objects created by the artist in question so he informed the artist and now they want money.
$500 to be precise, which seems rather steep for a photo of a household object that was sent to 10,000 people as part of a marketing campaign.
So, while I will assume that none of you are lawyers unless otherwise stated, I would love to hear information on the following:
1 . Does the artist have the right to demand money for a product-shot with no statements of copyright were made?
Is there any objective way of ascertaining the appropriate amount of money that should be paid for the above-mentioned potential infringement?
Could you clarify:
Is the artist claiming that he created the picture of the item in question?
Or is he claiming that because his item is in a picture which he did not take (or did not hire someone to take) that you owe him money?
If he took the photo, of course he has the right to be paid for its use. He doesn’t need to ‘state copyright’; copyright exists automatically as soon as the image is created, and just because he didn’t write ‘DON’T STEAL THIS PIC’ all over the picture doesn’t make it OK for someone to steal it.
I think the only objective way to figure out the right amount of money would be to find another company that’s used an image for a similar-scale e-mail shot, and find out what they paid for it. Or to find an artist who licenses pics for that kind of thing, and ask him what he’d charge for a similar-scale e-mail shot.
To have an attorney breathe on it will be more than $500. Per your OP your company has its pants way down on this issue. Pay him and take it as a relatively cheap lesson learned.
The owner of the copyright of the photograph can indeed ask for payment for unauthorized use. A typical amount would be 2 or 3 times the regular fee for the equivalent rights. Whether or not $500 is fair depends on the size of the photo, how prominently it was displayed, and how widely it was distributed, but it’s probably somewhere in the right ballpark.
Ask for (a) a clear statement that they are the copyright holder of the photograph (not the object it portrays); and (b) their standard rate for the rights for using that photograph in that context. If it’s a photographer you’ll get clear answers, an invoice, and something to say that your payment covers the appropriate usage rights and there won’t be any subsequent claim of infringement.
If it turns out this guy is not the copyright holder of the photograph, then even if you pay him the real copyright holder can still make a claim.
I don’t understand. Which of these is the situation?
He owns the rights to the exact photo you used.
He owns the rights to the design of the object, but did not take the photo. The photo is in the public domain.
He owns the rights to the design of the object, but did not take the photo. Someone else owns the photo.
If #1, you should just pay him. $500 is not totally unreasonable, assuming that we are not talking about a picture of a $10 spoon or something.
If #2, you don’t owe him anything. This is not totally settled law, but in general, photographs are not considered derivative works, and he can’t go after you for simply using an image of one of his products. This is especially true for “utility objects”, i.e. objects other than artwork, sculptures, etc. If the object has a function other than just looking pretty, then the design of the object itself is, in general, not subject to copyright.
If #3, you don’t owe him anything, but you may owe something to whoever took the photo.
Absolute: I need to ask this question in writing to the artist but the answer is almost certainly #1.
The exact photo is the one that was distributed to stores who sell this object.
But for the sake of clarity, I have now sent the artist an e-mail stating the following
In addition to the information I requested earlier (a link to a comparably-priced stock photo) I would just like to confirm that you are the photographer who took the photo in question? While there is no question that you own the rights to the design, I understand it is important that we verify who owns the rights to the photo so that we don’t end up having to pay twice.
I will post an update once the artist has responded.
The artist has responded to the sdmb’s questions in the following email I just received: I own the rights to the photograph as I commissioned it. I have been in discussion with my photographer and naturally I have to settle this issue with her as well as it has been used outside of its proposed scope. This is what I consider an internal company issue and I will settle it accordingly.
Then wait if you want. Tell him you’re more than happy to discuss the issue but you’ll need some proof of his claim before anything further can be considered.
He’s trolling for cash, not a lot, and may well be entitled to it. And forget the ‘comparably priced’ thing. If you used his work without permission you should expect to exceed the going rate by a significant amount as a ‘lesson learned’ thing.
So ask for proof, look it over, and see where you go from there.
Not really a lot of proof required here, I mean the photo is an exact match for the photo on numerous websites that sell the product that this artist designed, the brand is eponymous.
Do not pay the artist any money. Most likely, the only person you owe money to is the photographer.
To be clear - unless this object contains some kind of artwork that is “separable” from it’s intended function, there is no copyright protection for the artist, and you do not owe any money to the artist. Industrial design of functional objects can be protected by design patents, but not copyright.
You do owe money to whoever owns the photograph. This is most likely the original photographer, not the artist, unlessthe artist has licensed it from the photographer under terms that allow resale. It does not sound like this is the case. The artist does not own the rights to the photograph just because she “commissioned” it. If the photographer has not licensed it to the artist for resale, then you owe the photographer money, not the artist.
Tell the artist that, before you pay the artist any money, you will need written documentation from the photographer that the artist has the right to sell licenses to the photograph.
It doesn’t sound steep to me at all, but as others have suggested, you could try to compare it by checking with other photographers who license such works.
Yes. “Statements of copyright” are irrelevant. If you used his work without his permission, he has a claim of infringement.
As stated, you could try to research the market, but whatever you find out that way only gives you a bargaining position. It’s not really “objective,” though. You denied him his right to bargain in good faith. Frankly, $500 sounds like a bargain to me.
Absolute is spot on. Make sure you’re paying the right person - most likely the photographer, who should be happy to give you an invoice and documentation.
Just to be absolutely clear - it does not matter. Copyright protection does not extend to the design of functional objects. If you had purchased the object yourself and taken your own photo of it, you would be free and clear. The only issue is the ownership of the photograph itself, not the design of the object photographed.
The only exception is when there is some kind of artwork on the object that is “separable” from the function of the object itself, e.g. you could somehow reproduce the artwork separately. Then the artwork is covered by copyright. I doubt this is the case here, but if the object in question had a painting printed on it or something, the artist would have a legitimate copyright claim for the painting itself.
Absolute: Thank you very much, I have taken your advice as it seems very reasonable indeed and I have requested that the artist provide documentation stating that she has the right to sell licenses to the photograph of the object.
Based on your explanation, I think there is almost no chance someone could argue there is “artwork that is separable from the function of the object” in this case, it is an extremely basic and classic design of a common object.
This is slightly wrong. The question isn’t whether she “has the right to sell licenses to the photograph.” The question is whether she is the creator/copyright holder.
It’s not really relevant anyway, because you didn’t create the image yourself. The point is that you took someone else’s image.
If the photographer is the creator of the image, then the photographer is also the copyright holder of the image. Even if the artist has negotiated the right to copy and/or sell the image, it is still not the artist’s copyright that has been infringed in this case. The only way that the artist owns the copyright is if the photographer has transferred copyright to the artist.