Private Photos Used for advertising

[KwicK To Master KTM]

Just wondering does anyone know what the deal is when you post a photo on a forum etc.. In this case my RC 390 showing a fuel pipe on it in front of my personal home - And then when I was looking through E-bay I have noticed an Indian based seller has used the photo of my
bike in front of my house and has - photo shopped "RED BULL" Graphics kits for sale on international Ebay ? Not happy - Anyone know if this is legal? Thanks

 

[psych0hans]

Max you can do is report it to eBay. Not much else, since the pic is in public domain. I could be wrong tho.

 

[Formula390]

Max you can do is report it to eBay. Not much else, since the pic is in public domain. I could be wrong tho.

Just because a pic is posted online does NOT mean it's "in the public domain." The term "public domain" is the key there. That's a VERY specific legal meaning. Photos posted online aren't "free" to use however one might want just because they found it online. Aside from being a fabricator, I'm also a professional photographer (MidnightFantasy Photography is my website, which is NSFW for quite a bit of it, so if you browse over just be warned...) so this is something that most photographers have studied WAY too much and have learned more about IP laws than we'd likely ever want to have to. LOL In any event, Kwik, the photo as you posted it is still owned by you and others would either have to license it's use, or take it down. If they are LINKING to your original photo, problem solved. Move it and the link will break. If they have uploaded it to eBay, then you just need to contact them and have the listing taken down. The key phrase there is three litlte words: "Cease and Desist" The legal term for "Knock it the hell off before further legal matters are taken. That TYPICALLY is enough to get someone to stop using your photo. Not always, but usually. You can also try to invoice them for the usage. To win anything through judgement, it has to be proven that their use caused you a financial loss. As you aren't using the image for sales yourself, that would be tricky. It's much easier when one is a professional photographer and is selling the photo in question. That by no means is a guarantee, but that's the high level summary there.

Making them take that listing down won't stop them from using it again, but you COULD always try to contact the seller and offer to work something out with them where maybe you provide them a photo that doesn't frustrate you, or they can take their own product shots.

Now, there's another tricky bit to all this and that's where "fair use" comes into play. This DOES allow one to modify an image there by creating a new original work. Copyright doesn't actually exist to prevent anyone else from using an original work. Most people think it's there to govern usage, but in fact it's more of a registration is all. The high level of summary of fair use is that in this case, the photo would have to have been transformed in a substantive way and/or add meaning or message. There's the catch. They added a message. They CAN legally argue "fair use" under this definition. A jury would LIKELY find in your favor, but by no means is that guaranteed. If the image was modified further (background removal for example) then it's gets REALLY difficult to argue against fair use. End result is, a jury needs to hear arguments and decide. Of course, in this instance, it won't come to that... but just know that by having modified the photo, they have headed down the fair use path.

Now of course, this is all US law, and y'all are both international... where you are in Australia, they are in India, the eBay is in the US. Short answer is... good luck! You can flag the listing, and complain to eBay, and try to stay on top of the seller. About the best you can really do is follow them and you can see when they put up new listings where you can try to flag it again if they continue to use the photos. eBay is in the US, so US law applies, but getting a judgement against someone in India through a US decision while you reside in Australia for something as small as this, well... your best bet is to just flag and flag and flag again, until you become sure a bother they stop using your photo.

 

[micah360]

yeah... it's definitely not public domain. I used to put opaque watermarks on all of my photos that I posted online... but these days I don't really care anymore.

 

[KwicK To Master KTM]

hey thanks Formula and micah for taking the time to respond to my question - Sounds like I may have to become a Lawyr !!!! Al I have done is to remove it and requested that E-Bay get on his case - I really wouldn't care but it is my personal home in the background which shows the
street number - I will keep you posted - and thanks again cheers

 

[s30series]

hey thanks Formula and micah for taking the time to respond to my question - Sounds like I may have to become a Lawyr !!!! Al I have done is to remove it and requested that E-Bay get on his case - I really wouldn't care but it is my personal home in the background which shows the
street number - I will keep you posted - and thanks again cheers

I dont think India will extradite people for things like this, lol

 

[Formula390]

I dont think India will extradite people for things like this, lol

India will only extradite if the offense involves jail time for more than a year. I had business there, and knew the odds of my getting in trouble with those I was going to meet with was pretty much 100% as I was being sent there BECAUSE the group we were dealing with there were being total and complete useless ********. When I was informed -=I=- was the one being sent, I asked "how may get out of jail free cards do I get?" to which everyone laughed. I didn't. I continued a firm eye lock. I was then told, in a very serious tone: "You get ONE." "OK, that's all I need." I smiled back.

I nearly needed it. The VP of operations was a US expat who was also of Indian heritage. He had lived and studied in the US before moving to India to head up that location, and had been warned ahead of time "Matt's going to be REALLY firm with the team. Just so you know and can be prepared for the potential fallout." The trip was successful, but only after I'd managed to shock the lot of them by smashing a coffee cup against the back wall (after having hurled it just over their heads) and wheeling the teams manager back into the meeting, after he'd walked out three times, in his office chair with my telling him "If you're going to ACT like a baby, I'm going to TREAT you like one. Now, do I need to TAPE you into this chair?"

After the meeting, the manager went to the VP of Operations to complain about how he was treated and I was called in... to which I did my best impression of Cartman doing a half heart "I'm Sorry." to which the VP then turned to the manager and said "See, he's apologized." LOL



During the conference call that evening with the folks back in the US, at the end of the call, I was told "Oh and Matt, today counts as your one." 99% of the other folks on the call had no idea what the comment was in reference to or what it meant, but I answered "No problem. It had the desired impact on the team." and everything after that went MUCH better. Nothing like a little bit of Crazy American doing a bit of the ol' Shock and Awe to get the locals attention. Heh!