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Help! I've been framed!
December 5, 2011 3:26 AM   Subscribe

Apparently a photo frame company is using a picture of me (taken by my photographer friend) as the sample image in their photo frames. And while I'm totally flattered... this isn't legal, right?

Back in 2008, a friend of mine who is a photographer took a picture of me backstage at a show I was doing. He was building up his portfolio at the time and took loads of shots of all our friends, but this one came out particularly well and I believe it was featured on his photography website for a while.

Cut to today when another friend of mine was out shopping and saw a photo frame featuring that same image as the 'sample' image, the one you take out and replace with your own photo after you buy the frame. She messaged me tonight to let me know, and I was chuffed by the novelty of it all, but also confused, because the photo hasn't ever been licensed (to my knowledge).

I've just notified my photographer friend and he hasn't responded yet. However, despite us living in different cities now we're still very close, and talk pretty frequently, and I'd be very surprised if he'd sold the image without letting me know. I'm pretty sure it was stolen off the web by the photo frame company. This isn't the first time he's had an image stolen - a few years back a Malaysian news website used a different image of his without asking, and he ended up getting a few hundred dollars after emailing them. He doesn't use watermarks, by the way.

So... what do we do? Is my photographer friend entitled to some kind of fee? Am I? And even if we are entitled to a fee, what's the likelihood of getting it off (what I assume from context is) a small company that makes cheap photo frames? We live in Australia, by the way. I don't know the name of the photo frame company (my friend didn't pick up a frame, but says she will next time she goes by that shop). All I know is that it's from a cheap little store somewhere in Melbourne.
posted by lovedbymarylane to Media & Arts (12 answers total) 6 users marked this as a favorite
 
You need to talk to your photographer friend before any other answers will make sense.
He may have sold it.
posted by Flood at 3:33 AM on December 5, 2011 [1 favorite]


Is it possible he did business with this company? I know that if you use photo companies online, either ones that print photobooks, photos, or photo cards they disclaimer that your photos may be used to promote their products. Perhaps this is something similar? Either way, I'd talk to your photographer friend and see and that's really the only way you'll know!
posted by camylanded at 3:42 AM on December 5, 2011


Yup, just spoke to my friend and he's just as baffled as me. Definitely didn't sell the photo.
posted by lovedbymarylane at 4:30 AM on December 5, 2011


I would use Tineye and Google image search (click the camera) to upload this photo and find out where else it is being used. Perhaps someone uploaded it to a stock photo website.
posted by devnull at 4:43 AM on December 5, 2011


Australia is signatory to the Berne Convention, so yes, the photograph is automatically copyright to the photographer, and this use without permission is an infringement.

Model releases (ie an agreement that you consent to the use of your image) are a seperate issue, and I'm not sure how important they are here (my impression is that they're not legally required, but very legally useful for precluding problems), but clearly that didn't happen either.

Not sure what your next step should be - it depends on what you want to achieve. However something you can do in the meantime is put the image into both tin-eye and google image search and see if it's ended up in any stock photography collections or websites. Seeing where else the image is might shed light on matters. Or it might not. But hey, might as well look!
posted by -harlequin- at 4:48 AM on December 5, 2011


I would use Tineye and Google image search (click the camera) to upload this photo and find out where else it is being used. Perhaps someone uploaded it to a stock photo website.

Thank you! It turned up on this Chinese stock photo website. The picture has been taken down though, and I can't read the characters on the filler image (and obviously can't plug them into Google translate) - any ideas?

Model releases (ie an agreement that you consent to the use of your image) are a seperate issue, and I'm not sure how important they are here (my impression is that they're not legally required, but very legally useful for precluding problems), but clearly that didn't happen either.

From my photographer friend: "I would never license those images - also I don't have a model release from you so even if I wanted to I couldn't sell the image". I'm totally fine with my image being used, but I think it sucks that my friend didn't get any royalties or credit from it.
posted by lovedbymarylane at 5:00 AM on December 5, 2011


I would definitely contact the photo frame company. They may well agree to pay a royalty retrospectively, even though they were not at fault.
posted by megatherium at 5:15 AM on December 5, 2011


Was it published somewhere (like Flickr) with a Creative Commons license attached to it? It's possible that your friend didn't sell it, but that the photo's license was nonrestrictive.
posted by fremen at 5:21 AM on December 5, 2011


Was it published somewhere (like Flickr) with a Creative Commons license attached to it?

It's not on Flickr now (could possibly have been on it in the past - he's not sure). Regardless, he's never used a Creative Commons license on his work - all of his photos have '(c) All rights reserved'.

Also, I just found out it was uploaded by a user called braverx. The plot thickens...
posted by lovedbymarylane at 6:24 AM on December 5, 2011


I wouldn't contact the frame company on your own. Hire a cheap lawyer to write the letter, it will be taken far more seriously.

Go on istockphoto or another site and see how much it would cost to license a photo like that for use in a retail product (very different from use within a website, etc). Then double it and ask for that as a starting point.
posted by dripdripdrop at 8:42 AM on December 5, 2011 [1 favorite]


I Am Not A Lawyer. Your photographer friend has a case against them for copyright violation. You have a case against the photographer for using your image for commercial purposes w/out permission. Go together to get a lawyer. Before you contact the company, decide what you want: 1. legal fees. 2. cease & desist? 3. payment for future use, if agreed on 4. payment/damages for unauthorized use.
posted by theora55 at 9:03 AM on December 5, 2011


Your photographer friend has a case against them for copyright violation. You have a case against the photographer for using your image for commercial purposes w/out permission.

Wait, what? If it was used without the photographer's knowledge, how would the OP have a case against him for using it for commercial purposes without permission? He didn't use it; someone else stole it (in effect) from him and used it without his permission.
posted by Lexica at 12:44 PM on December 5, 2011


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