Unauthorized use of an image

February 20, 2009 12:45 PM

Unauthorized use of a personal photograph to promote a business. What to do if the business refuses to take it down and DMCA notices are too slooow?

An artist friend for whom I do PR type work on occasion discovered that a gallery in California is using an image of her holding a fan (from when she was 16) to promote an event at their gallery. She's a well known painter herself, has nothing to do with this event or gallery, and chances are good the person designing the flyer ripped the photo from her MySpace profiles 'personal images' section.

The gallery owner is claiming the image is a drawing (no, it's not...and even if some lame designer applied a Photoshop drawing-type filter to it, it doesn't make it a drawing!) and is, so far, refusing to take it down. DMCA notices have been sent but are there any other options? What kind of recovery is she looking at for this unauthorized use if a lawsuit is filed?

posted by bitter-girl.com to law & government (14 comments total)

If your friend is a successful enough artist to justify hiring a PR professional, then she should certainly be a successful enough to justify hiring (or, at the very least consulting) a legal professional in order to determine what recourse she has, and what the likely outcome would be. This is precisely why legal professionals (commonly known as "lawyers" or "attorneys") exist-- to provide legal advice and representation.
posted by dersins at 12:52 PM on February 20 [2 favorites]

The gallery owner should know that even if that obviously 'shopped image really were a drawing, it would still be an unauthorized use of your friend's photo. I would speak to a lawyer about this. I don't know what a lawyer will tell you exactly... DMCA notices have always worked for me.
posted by katillathehun at 12:55 PM on February 20

Check out Civil Code § 3344.
posted by jabberjaw at 12:59 PM on February 20

The event they're using it to promote starts in less than 6 hours. They're probably just stalling for today, because they'll be done with it tonight.
posted by jon1270 at 1:24 PM on February 20

Photobucket has taken it down.
posted by Maisie Jay at 1:28 PM on February 20

Actually, it looks like they just uploaded a revised version, but it's still there. That said, complaining to Photobucket (probably repeatedly) might at least get this image off their site. I've done this successfully in the past.
posted by katillathehun at 3:18 PM on February 20

When I looked at the page earlier, there was a giant red THIS IMAGE VIOLATES PHOTOBUCKET TOS image. Now I see a completely different image from the girl with the fan. What are you seeing, Katilla?
posted by Maisie Jay at 3:47 PM on February 20

Oh wait, I see it, they made it tinier. What fuckers.
posted by Maisie Jay at 3:48 PM on February 20 [1 favorite]

Yep, a new version of the picture is up. Lame.
posted by jabberjaw at 3:50 PM on February 20

If they're changing and reposting the picture, this means they are actively trying to evade a DMCA notice. That they didn't just ignore it, they tried to get around it. Intent is a big concept in these situations and they're making your friend's case for them a lot easier. Get an IP lawyer.
posted by rhizome at 4:03 PM on February 20

If you're looking for recovery after the fact, I'd sure be archiving those pages to demonstrate their willful conduct and knowingly reusing that image even after it had once been taken down.
posted by whatisish at 4:08 PM on February 20

Well, after this gets into Google, I doubt there are going to be many artists that will trust The Light Galleries in Costa Mesa with their work. Who wants to entrust their work to a gallery that steals so blatantly?
posted by Maisie Jay at 4:09 PM on February 20 [1 favorite]

They're probably just stalling for today, because they'll be done with it tonight.

Well, sure, and that's why the artist should be looking at a lawyer - to get a chunk of the money they made with a misused image.
posted by rodgerd at 4:23 PM on February 20

(I step away for a meeting that's supposed to take one hour and ends up being 4 and look what happens while I'm gone!)

Thanks, everyone. It did certainly seem like they were stalling (swapping out for the smaller, lighter version of the SAME photo, though? oh my) but I was surprised Photobucket jumped on it so fast -- I have not had good luck with DMCA notices in the past when people have stolen *my* stuff, and wasn't expecting them to respond so quickly.

And dersins, just because she can afford to use me from time to time doesn't mean she's rolling in Mark Ryden-level bucks, but knowing that there is the potential for a case / that the code jabberjaw references above has very specific guidelines for this helps a LOT.

So, again, thanks to everyone!
posted by bitter-girl.com at 5:45 PM on February 20