Wednesday, November 4, 2009

Found my photo used without permission

Found my photo used without permission

Original

Unexpected hiking partners

Thanks to jakerome, who saw this Tuesday night, I found one of my photos being used on Toyota's new 4Runner web site without my permission.

For the record, I was never contacted for permission or licensing, the image is (and has been for some time) licensed All Rights Reserved and the way it's "protected" (weak as that is) on Flickr they had to have circumvented the protections (e.g. screen shot) to copy it.

Also I've had the following disclaimer on the photo for some time as well (I habitually do this with all of my popular Flickr photos):

This photo is licensed All Rights Reserved. If you wish to use/publish it contact Michael Calanan / Calanan Photography, LLC

On thing I have never done, but will begin to, is register my images with the US Copyright Office.

For those who might not be able to access the Flash page, the photo is the used at 230x150px, is not credited but does click through to the Flickr page.

I realise that I should seriously consider investing in retaining a lawyer but in the meantime I'd like to hear what others in similar situations have found to be successful.

Some folks half-jokingly suggesting that I send Toyota an invoice for licensing and usage - does that ever actually work?

Also some suggest Toyota is in the clear due to the fact that they link back to the original and one cited the case Kelly v. Arriba Soft:

en.wikipedia.org/wiki/Kelly_v._Arriba_Soft_Corporation

Your thoughts?

Update #1 09:00 Mountain 04 Nov 2009

There are also discussions at:

www.flickr.com/photos/calanan/4074191630/
www.flickr.com/photos/calanan/111965008/
www.flickr.com/help/forum/en-us/111630
www.flickr.com/groups/nomorefreephotos/discuss/7215762260...
tech.groups.yahoo.com/group/ASMPproAdvice/message/9529

And on Twitter via @calanan.


Update #2 09:45 Mountain 04 Nov 2009

Though I have not yet been contacted by Toyota directly, I just received a Twitter update from them stating:

twitter.com/Toyota/statuses/5424392180

"@calanan @Photo_John @stuartzero We're currently pulling the photos and will be in contact with each photography who was represented."

So much for the licensing/usage invoice I was drafting. :(


Update #3 10:30 Mountain 04 Nov 2009
Flickr jakerome / Twitter @jakerome has created two Flickr Galleries showing all the photos used in the 4Runner campaign:

Toyota, oh what a stealing! - Part 1
Toyota, oh what a stealing! - Part 2
Toyota, oh what a stealing! - Part 3


Update #4 11:00 Mountain 04 Nov 2009
Blogged at Brand's Anatomy: "The bigger the company, the bigger the blunder"


Update #5 13:15 Mountain 04 Nov 2009
There are apparently two separate 4Runner sites, the Flickr photos have only been removed from http://www.toyota.com/vehicles/minisite/4Runner/ not from http://www.toyota.com/new4runner/


Update #6 15:41 Mountain 04 Nov 2009
Still no contact from Toyota


Update #7 16:51 Mountain 04 Nov 2009
Another affected photographer, @dmourati speaks out, "Oh What a Feeling"


Update #8 18:20 Mountain 04 Nov 2009
Update from the Toyota Flickr account in Flickr: The Help Forum (still no direct contact from them):

"Toyota apologizes for pulling images from Flickr without photographer permission. Images from a handful of photographers appeared on a Toyota site for five days. We’re working quickly to reach out to the individual photographers involved. Until then, the images have been removed, and corrections have been made to the process of pulling images from Flickr."


Update #9 10:50 Mountain 05 Nov 2009
PDN (Photo District News) has picked up this story at PDNPulse


Update #10 13:45 Mountain 05 Nov 2009
Story picked up by

The Denver Egotist: Toyota Shamefully "Borrows" Image from Local Denver Photographer

CNET: Getty and Flickr deepen photo-licensing ties


Update #11 15:10 Mountain 05 Nov 2009
Another affected photographer, @SnorriGunnarsso speaks out, "Toyota stealing photos of Flickr"


Update #12 09:30 Mountain 06 Nov 2009
Blogged at Shuaism: "7 Lessons learned from Toyota’s 'borrowed' image follies"


Update #13 15:40 Mountain 06 Nov 2009
Blogged at BNET: "Toyota and Saatchi Used Images From Flickr Without Permission"



Update #14 16:50 Mountain 06 Nov 2009
New Flickr images are showing up on the Toyota 4Runner minisite

www.toyota.com/vehicles/minisite/4Runner/

But not this version

www.toyota.com/new4runner/


Update #15 13:30 Mountain 07 Nov 2009

Blogged at Photo Attorney: "Protect Your Flickr Photos"


Update #16 17:30 Mountain 07 Nov 2009

Another great article on this issue Advertising Age: "User-Created Ads Create Rights Conundrum"


Update #17 11:10 Mountain 09 Nov 2009

Another blog post about this issue: A Photo Editor "The bigger the company, the bigger the blunder"


Update #18 10:10 Mountain 10 Nov 2009

Found more articles online:

iMediaConnection: "Toyota's social strategy lands it in hot water"

Adland: "Paris Hilton not amused by 'Vacant' billboard's truth in advertising + Toyotas flickr-pillaging"

Digital Wedding Forum: "Maybe Their Web Designer Did It"

D-Photo: "Billboard Not So Pretty..."


Update #19 08:00 Mountain 15 Nov 2009

Another article: Software Cinema: "More Corporate Thievery, This Time Toyota and Saatchi - Don't They Get The Photographer Needs To Be PAID?"


Update #20 16:00 Mountain 18 Nov 2009

Article by Joseph Pobereskin: "Eat at Joe's: Why Don't I Drive A Prius?"

34 comments:

theorris said...

Interesting case, for sure. As I tweeted, I don't think the court case sited applies here as it is referring to a search engine and not to a company using your image to make their product appealing.

Zig said...

Not sure the take down is enough. I'll be interested in seeing the follow up from Toyota on this case.

Fly on the Wall said...

You definitely bill them. No question. I can put you in contact with a photographer who does this all the time, and gets paid. From what I understand, since you didn't register it up front, you can't claim damages. But you are entitled to market rates for usage.

calanan said...

Thanks, Trent, I've sent you a Twitter DM.

calanan said...

Some helpful tips on copyright that I was given during the course of the day:

ASMP: What to do if your work is infringed

A free "how to copyright" seminar that ASMP is offering in select cities.

Via PhotoAttorney Help! I've Been Infringed!

Opting out of Flickr's API (think: a behind-the-scenes search engine)

I'll add more as I find them!

theorris said...

Has copyright changed under the Millenium DRM stuff? For writing, once it comes out of your noggin onto the screen or where ever, it is copyrighted and you don't have to register anything. It seems, as well, that all the flickr images clearly state that they are copyrighted. The purpose of not having to apply fro copyright for everything is to prevent the copyright office from being overwhelmed.

calanan said...

I'm still learning about this myself but from what I understand registering gives the creator an additional level of protection. At risk of infringing here's a quote from that first ASMP link:

If infringement of a published work begins before the work has been registered, the copyright owner can obtain the ordinary remedies for copyright infringement (including injunctions, actual damages and lost profits, as well as impounding and disposition of infringing articles). However, the owner cannot obtain special remedies (statutory damages and attorney’s fees) unless registration was made before the infringement commenced or within three months after first publication of the work.

theorris said...

Quotations are covered under fair use, so you don't have to worry about quoting them (with proper citation which you pretty much have.)

Given that, one needs to be careful of anyone who claims that standard copyright is not enough. Many people fall victim to the unscrupulous who play off of fears that someone the standard copyright law is not enough and ask for a fee. I must be clear here, however: I am not stating or even implying that anyone discussed so far in this comment stream is trying to scam anyone. I am just suggesting caution to artists and writers when approached by someone who wants, for a fee, to register a copyright that is clearly there.

With writing, for example, the copyright is implicit, but if you want "extra protection" all you need to is put (C) Copyright [YEAR] in the header of anything that is submitted or posted online. Given that flickr already does that with images, I think things are pretty much covered. Publishers are the ones who usually apply for formal copyright, given their special interests.

theorris said...

A good primer on copyright for artists can be found in the publications "Writer's Market 2009," "Poet's Maket 2009," and "Photographer's Market 2009." They probably have a web site. They all, I believe, also tell you about the different types of rights you can offer for sell to potential publishers. The most common for writing for publication, for example, is called "First Serial Rights." I think they have the same for photography, but the web has changed the game somewhat.

Still, flickr clearly states that "All rights are reserved" if you choose that option on your photos. There probably is some complex lawsuit about all that, given that Google is publishing one's photos on flickr, but all rights are retained by the creator (and not by Google.)

Our modern age certainly has made things very confusing!

Doug said...

You definitely have a case against them, despite the take down. The damage has been done. I know of a case very, very similar to this and a photographer will be receiving compensation from an Ad agency that misused his license photo. It's been in the courts for two years, but he will be compensated. Good luck...you're an incredibly talented photographer who should be paid a professional rate for your images (excluding all the free shots you generously gave me in Buffalo, of course...ha ha).

John Paul said...

Lawyer ASAP, Also let PDN pulse blog about this. This is pretty bad, and toyota is going to pay.

Cian Kinsella said...

Clearly you are due cash. For these reasons:

- you are the copyright-holder world-wide (bar 2/3 countries) - notwithstanding that you may not have formally registered copyright in the US
- you have clearly tagged your images with your identity and a permissions notice

I suggest you ask Toyota for the weblog showing how many page views there were during the time of infringement. 2 cents per view seems appropriate and fair.

calanan said...

Thanks for your continued advice, as it stands I have still not heard from Toyota - no other updates at this time.

FYI, to see all 41 photos affected please view the 3 Flickr Galleries linked to above in Update #3. Thanks, Jake.

calanan said...

Some more helpful tips on copyright and infringement:

Registration ©ounts Tutorial

United States Copyright Office

Question: What are the notice and takedown procedures for web sites? (via ChillingEffects)

Anyone have others they'd like to share?

calanan said...

FYI, PDN (Photo District News) has picked up this story at PDNPulse

calanan said...

Story picked up by

The Denver Egotist: Toyota Shamefully "Borrows" Image from Local Denver Photographer

CNET: Getty and Flickr deepen photo-licensing ties

calanan said...

On a related note, jakerome just found this new Toyota-sponsored campaign, Innovative Interactivity | Toyota launches user-submitted multimedia interface "Beyond Cars", dated yesterday, 4 November 2009:

Less than a year after Toyota wowed the interactive community with their “Why Not? Innovation Experience” site, they have launched “Beyond Cars,” a user-submitted interactive portal allowing their audience to discuss a “better tomorrow.” Their site provides a truly engaging experience as users move around a visually stimulating interface to read, watch, and view other people’s thoughts about our future.

Their submission system is extremely easy and user-friendly. They have integrated Facebook Connect as a second option to submitting user information from scratch, which helps speed up the process. Users can then voice their opinion with an image-and-text, video-and-text, or text-only message. Videos can be uploaded from a user’s computer, or recorded and broadcasted live with a user’s webcam. Photos can be uploaded from a user’s computer, Facebook profile, or Flickr gallery.



This all sounds warm and fuzzy until one reads the rights-grabilicious Terms of Service:


3. SUBMISSIONS BY YOU TO THE SITE
(a) General Terms. Any of your Submissions to the site, electronically or otherwise, including, but not limited to, photographs, videos, comments, questions, suggestions, text in any email transmission or any other Submissions, is and will be treated as non-confidential and non-proprietary as to you, unless specifically stated in our Privacy Policy. Any Submissions you provide to the Site may be used by us and our designees for any purpose, including, but not limited to, reproduction, transmission, disclosure, publication, broadcast, and/or posting.

You understand that in making any Submission, you are giving us and our designees an exclusive (unless specifically stated otherwise in this Site), worldwide, perpetual, irrevocable, royalty-free, sub-licensable right and license to exploit the Submissions and any Person’s property (physical, personal, and indicia) contained therein, in any media now or hereafter known, without any payment or other consideration of any kind, or permission or notification, to you or any third party. Our rights shall include, without limitation, the right to reproduce, record, alter, amend, edit, publish, publicly perform, use, merchandise, license, sublicense (through multiple tiers), adapt, and stream the Submissions in any and all media now or hereafter known, including but not limited to, the Internet and outdoor billboards, throughout the world, related to the Toyota Entities, their respective distributors, dealers and dealer associations, sales of their respective products or services (for example, sales of Toyota and/or Scion brand automobiles) and any other promotions sponsored by us....


And so on.

calanan said...

Two updates:

Blogged at Shuaism: "7 Lessons learned from Toyota’s 'borrowed' image follies"

Blogged at BNET: "Toyota and Saatchi Used Images From Flickr Without Permission"

calanan said...

Interesting side note: New Flickr images are showing up on the Toyota 4Runner minisite

www.toyota.com/vehicles/minisite/4Runner/

But not this version

www.toyota.com/new4runner/

Anonymous said...

When I find my images have been
stolen I sue. I win and I collect. Toyota has very deep pockets. If it has been less than 3 months since it was published you need to get it copyright registered. They know better than that. $150,000 statutory damages per image stolen. Go to a Lawyer and get your money.

Be smart.

calanan said...

Blogged at Photo Attorney: "Protect Your Flickr Photos"

calanan said...

Another great article on this issue: Advertising Age: "User-Created Ads Create Rights Conundrum"

calanan said...

Another blog post about this issue: A Photo Editor "The bigger the company, the bigger the blunder"

calanan said...

Found more articles online:

iMediaConnection: "Toyota's social strategy lands it in hot water"

Adland: "Paris Hilton not amused by 'Vacant' billboard's truth in advertising + Toyotas flickr-pillaging"

Digital Wedding Forum: "Maybe Their Web Designer Did It"

D-Photo: "Billboard Not So Pretty..."

Alistair Scott said...

This sort of thing is happening more and more - by big and small players. I've found photos of mine being used illegally. We photographers need to get tough about it.

A very useful facility for tracking down your photos on the web is TinEye:

http://www.tineye.com/faq

It doesn't find everything yet as it's still in Beta and developing its database. But it works remarkably well. You can even get a Firefox extension.

Using it I've found photos of mine all over the place. It has even found images that use part of my photos. Recommended.

calanan said...

Great tip! Also check this PDN article: Another New Search Tool For Finding Matching Images. It references a very interesting new web tool called GazoPa from Hitachi.

millzero said...

Thank you for your email. Just wanted to update coz i got a news from toyota advertising company saying they will pay be some amount of money.

I am very new to these kind of things, and the place where i live (Maldives) we don't have intellectual property laws.

Any way Calanan Photography thanks

calanan said...

Another article: Software Cinema: "More Corporate Thievery, This Time Toyota and Saatchi - Don't They Get The Photographer Needs To Be PAID?"

calanan said...

Can anyone with online registration experience help answer the following?

In reading the copyright registration FAQ I'm confused by http://www.copyright.gov/circs/circ01.pdf - page 7:

"note: You can still register using eCO and save money even if you will submit a hard-copy deposit, which is required under the mandatory deposit requirements for published works. The system will prompt you to specify whether you intend to submit an electronic or a hard-copy deposit, and it will provide instructions accordingly. Hard-copy deposits are required for all published works.

Basic claims include (1) a single work; (2) multiple unpublished works if they are all by the same author(s) and owned by the same claimant; and (3) multiple published works if they are all first published together in the same publication on the same date and owned by the same claimant. To access eCO, go to the Copyright Office website at http://www.copyright.gov and click on electronic Copyright Office."


1) After submitting electronic versions of photographs do I need to also submit prints of the images?
2) In order to protect my most popular images I want to register a batch of my most popular images both on Flickr and my web site. Am I allowed to register them in a batch even through they were not published (taken, or uploaded to Flickr or my web site) on the same date?

riderx said...

I'm not a lawyer, so don't take this as legal advice:
- You don't have to submit your images to get copyright protection. The minute you create them they are protected. Registering them gives you an extra tool to fight things like what happened.

- You should pursue payment, a friend of mine had his image stolen from Flickr for use in Bicycling Magazine and was successful in getting $$$.

calanan said...

Article by Joseph Pobereskin: "Eat at Joe's: Why Don't I Drive A Prius?"

christy said...

Not sure where this stands at the moment, but....I work in advertising. Probably some guy in their ad agency found the photo as a temporary holder, they ended up using it, forgot they didn't get rights, etc. etc. Happens a lot. I would contact ad agency, tell them who you are. They'll want to to fix it, make the problem go away. You want to contact the agency's print producer.

ArenaCreative said...

SHAME ON THAT DESIGNER! Firing them, if not seriously punishing them, should be the first thing Toyota does; aside from reimbursing you some sort of settlement. Someone seriously dropped the ball here. A similar microstock photo in that same theme that would have cost the company as little as $1 for web size use like that. This type of behavior in the design/stock photography word is NOT COOL and there is NO EXCUSE for it.

calanan said...

FYI, this issue has been settled:

Final update on the Toyota / Saatchi & Saatchi Infringement Case

Thanks for everyone's comments, tips and support.