Unauthorised Use of My Image - Advice?

[FallingHorse]

I came across a site that is using a photograph of my son to advertise their product. Not sure if I am allowed to link to the site so please remove if required:

http://www.askunclemike.com/boys-can-be-heroes1.html

I have never heard of the site before and have never given them permission to use the photo and now they see fit just to use it in their e-Books.
I have emailed them and let them know of my disappointment but the e-Books have probably already been sold to who knows where. Has anyone dealt with something like this before and what did you do?

[flashc]

Hi...

I often think of this problem occurring, but in your case it is an unauthorised pic of your son, not just a digital image of a sunset...

The site seems legitimate, but you would think a person with his stated educational background wouldn't have posted a pic of a child that wasn't a stock photograph, but just taken from a site where you have perhaps posted this pic.

I wouldn't be happy about it if it was my son pictured, unauthorised, aside from the fact that he's running his venture as a money making business...

[FallingHorse]

Thanks Flash - yes, you would think that a teacher of his stated experience would know better. Although I am annoyed at him using my sons picture, I am relieved that it wasn't used to sell something that I am against. Still, it's the principal of the matter. He didn't ask yet I am sure that he would put a copyright disclaimer on his e-Books! The only place that I had that picture posted was here and a competition site called Pxleyes. I am quite sure that it was lifted from the later as it has been cropped at the bottom where the Pxleyes watermark sits which suggests that he knew what he was doing.

[fillum]

"Uncle Mike" appears to also be a photographer (http://www.michaelauden.com.au) so should fully understand the implications of using other people's work. You need to find out from him where/how he obtained the image - if he believes he has a "legitimate" right to use the image he shouldn't have any problem providing you with this info.

Check the usage/license settings for the copy of the image stored on Photobucket. (I'm not familiar with Photobucket so don't know how this works on that site. On Flickr for example a Creative Commons license can be set for each image that allows others to use the image within the specific Creative Commons boundaries).

Although I think it unlikely that this is how he obtained the image, it could be possible that the competition site you uploaded to are "harvesting" images for stock sales. I have no specific reason to believe this to be the case but this excerpt from their T&C's is a concern...

SUBMITTED MATERIALS:
Any comments, materials, or content submissions sent and/or submitted by you to [the site], including without limitation, questions, comments, suggestions, criticisms or the like ("Received Materials") shall be deemed to be non-confidential and free of any claims of proprietary or personal rights unless you explicitly state in the correspondence that the letter is "not for publication" and contains "private and proprietary" information that may not be distributed. [the site] shall have no obligation of any kind with respect to such Received Materials and [the site] will be free to reproduce, use, disclose, exhibit, display, transform, edit, abridge, create derivative works from and/or distribute the Received Materials without limitation or restriction. Furthermore, [the site] is free to use any ideas, concepts, know-how, or techniques contained in any communication you send to [the site] for any purpose whatsoever, including, but not limited to, developing, manufacturing, and marketing products using such information, without compensation or any other obligations to anyone, including you.

So see what he comes back with and go from there...


Cheers.

[ameerat42]

I have felt irked on your behalf on reading all this. I wonder if he has been as liberal with others too?
You are displaying some forbearance in not being more forthright, Jodie.

I think I'd be making it clear that the law will be involved. How long has it been since you contacted him?
Am.

[Kym]

Send an invoice and letter of demand -- make him pay for his indiscretion and © infringement.

Also: Grab some screen shots as evidence!

[norwest]

"Uncle Mike" appears to also be a photographer (http://www.michaelauden.com.au) so should fully understand the implications of using other people's work.

After looking at the above link I can't for the life of me work out what is his work and what on his site he's claiming as his work.

After looking at the other site I'm sceptical of someone claiming to be a teacher since 1974 and failing to supply formal academic qualifications, subject majors and little detail of experience on his 'About' page.

[FallingHorse]

"Uncle Mike" appears to also be a photographer (http://www.michaelauden.com.au) so should fully understand the implications of using other people's work. You need to find out from him where/how he obtained the image - if he believes he has a "legitimate" right to use the image he shouldn't have any problem providing you with this info.

Check the usage/license settings for the copy of the image stored on Photobucket. (I'm not familiar with Photobucket so don't know how this works on that site. On Flickr for example a Creative Commons license can be set for each image that allows others to use the image within the specific Creative Commons boundaries).

Although I think it unlikely that this is how he obtained the image, it could be possible that the competition site you uploaded to are "harvesting" images for stock sales. I have no specific reason to believe this to be the case but this excerpt from their T&C's is a concern...



So see what he comes back with and go from there...


Cheers.

Thanks Kim - I wasn't aware that he was also a photographer. That makes it worse in my opinion. I wonder how much of his work on his site is borrowed?? I am pretty certain he got it from the competition site as I don't have it on Photobucket. I did put the same image on AP for CC and someone suggested a crop. The image that he's using is the one that a cropped as suggested which I didn't post here. Also - I can see that he has cropped it a bit to remove the Pxleyes watermark at the bottom.

I have felt irked on your behalf on reading all this. I wonder if he has been as liberal with others too?
You are displaying some forbearance in not being more forthright, Jodie.

I think I'd be making it clear that the law will be involved. How long has it been since you contacted him?
Am.

Thanks Am - I only discovered it and sent him an email last night. It wasn't a pleasant email and I said I was going to get legal advice (although they are just words as I can hardly afford legal advice on this sort of thing).

Send an invoice and letter of demand -- make him pay for his indiscretion and © infringement.

Also: Grab some screen shots as evidence!

Thanks Kym - I grabbed the screen shots last night. I think I may just send him an invoice like you suggest. What do you think would be fair? To be honest, I was really annoyed that he did this but now that I know he is a photographer, it's inexcusable !!

[ricktas]

His E-books are $19.99 each USD and there are five of them.

My suggestion would be an invoice for 5 times the price for each e-book. So 5x $19.99 for each book(5) = $499.75 (USD). For use to date and if he wants to continue using it, and ongoing fee fur future use. That should make him sit up and take notice and also be within his budget to pay it. If he does not pay you can always lodge it with a debt collection agency.

Make sure the invoice contains the following clause:

“Debt Collection Costs” shall mean any amount in excess of the Debt payable by the Debtor to the Client in the event of default in the payment terms specified in the invoice. If the Debtor defaults beyond the terms of this invoice, the Debtor is liable to pay any and all costs associated with collection of the debt. Debt collection costs will be applicable if the debtor is placed with a debt collection agency."

or similar.

This basically means that if he does not pay and you put him into a debt collection agency, then he is bound to pay any costs (on top of the invoice) related to the account being placed with debt collectors. So he can choose to pay now, or pay via a debt collection agency..and pay all their costs as well.

[fillum]

The image is definitely on Photobucket and it appears to be "Public" (I can see it and I don't have a Photobucket account). From Photobucket's "Terms of Use":-

Your Content

You retain all your rights to any Content you submit, post or display on or while using Photobucket. This means that YOU own ALL the Content you post, but keep the following in mind:

- If you make your Content public, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to copy, distribute, publicly perform (e.g., stream it), publicly display (e.g., post it elsewhere), reproduce and create derivative works from it (meaning things based on it), anywhere, whether in print or any kind of electronic version that exists now or later developed, for any purpose, including a commercial purpose.

- You are also giving other Users the right to copy, distribute, publicly perform, publicly display, reproduce and create derivative works from it via the Site or third party websites or applications (for example, via services allowing Users to order prints of Content or t-shirts and similar items containing Content, and via social media websites).

Note particularly the last clause above. If the image is indeed "Public" then you may have given permission for the image to be used (although unknowingly). In my opinion you need to wait for a response from him before firing off invoices and letters of demand. I can understand how disturbing this must be but you need to tread very carefully.


Cheers.

[FallingHorse]

Thanks Phil - I didn't realise that you could see images on PB, I thought you had to be one of my contacts like on Facebook. I am currently changing my albums to private. The image on PB is not the one he used though as that is the original un-cropped version that I posted for CC. I also didn't realise the terms and conditions that allowed people to use content from the site so making them private should hopefully fix that. It really does pay to read the fine print, though I may not have really had an idea what all that meant before getting into photography, I certainly do now

I did received a response from the photographer:

Dear Jodie,

Thank you for your email.

First, I am sorry if I have used your image in an un-authorised way.

I usually use stock images or my own photographs.

I am happy to delete the photo from this electronic publication or get you to sign a release form.

I have attached a copy of Boys Can Be Heroes - it is a journal to help boys explore their strengths and feelings of self worth.

I will need to know which photograph you are referring to to delete it.

Regards

Michael Auden

The thing is, I would not have signed a release form to begin with as I wouldn't sell an image of my son unless it is something he wanted to do. I am somewhat relieved that his image wasn't used for something that goes against my own family values ... or there would be hell to pay! The image wasn't used in the actual e-Book (he sent me a copy) but on the web site that is selling the book. He has agreed to remove the image and providing he does this I wont send him an invoice. I also told him that harvesting images like this was unethical and undermines and devalues the industry as a whole.

Anyway - let's see if it gets removed

[ameerat42]

Sounds like he's an amenable type at least. Hopefully it'll be resolved and not much "damage" done.

Sure thing, make your albums/photos private or more restricted.
Am.

[FallingHorse]

Thanks Am,

I am sure both the author of the e-Book and I can take away something from this. A lesson to us both in being more careful. You are right, there is no real 'damage' done when it comes down to it as I said, I would not have sold this image anyway. I would have treated this a whole lot differently if he was claiming to have taken the image or even if he was rude.

[One Click]

If not removed as you have requested I would suggest everyone on this site send a message via Ask Uncle Mikes contact page telling them exactly what they think regarding the use of your photograph. They want it to create a response, perhaps the response they get will not be what they wanted and rightly so. Keep us informed. I for one am, prepared to use his option in your support.

[Mark L]

mmmm, I'm a little disturbed by this quote from his reply, "I will need to know which photograph you are referring to to delete it."
He can say "I usually use stock images or my own photographs." Surely he knows which is which, and what does he consider stock images to be? Possibly there's a whole lot of stock images lifted from Photobucket.
Anyway.

[rum pig]

WOW I knew you should never trust Photobuck and the likes. I cant understand why people put photos on facebook for everyone to see and then facebook allows you to download and share the images and there is nothing you can do. Then you have friends and family posting pics of you and your family that others can use I wish they could/would read this and they may not be so keen to share with the world.

I really feel sorry for you Jodie i would not like my sons image used without my consent.

I hope it all works out in the end. Certainly a lesson learned for most of us.
Keep us posted as I would be happy to send him an email.

[ricktas]

and two days later the photo is still there. I don't think he gets that copyright breach is a serious matter

[FallingHorse]

and two days later the photo is still there. I don't think he gets that copyright breach is a serious matter

Thanks Rick,

I noticed that so I am going to send an invoice - $#@% him ! I will use the figures you gave me as a guide.
Thanks Rick - obviously he doesn't get it

[ameerat42]

Jodie. Did you send him the url of the image on his site, ie, identify it clearly?
Am.

[dodgyexposure]

Thanks Rick,

I noticed that so I am going to send an invoice - $#@% him ! I will use the figures you gave me as a guide.
Thanks Rick - obviously he doesn't get it

Just on this note - sending him an invoice doesn't create a legally binding obligation on him to pay you the invoiced amount, or any amount. If you do invoice him, I wouldn't then go on to try to enforce the invoice as a debt, e.g. by use of debt collection agency (as previously suggested).

Just so that you are aware, your legal right is to pursue him for wrongful use of your image, for which the remedy may (or may not) be "damages". Calculating damages is never straightforward, but one possible measure is the amount that a licence to use an image in the way that he did would have cost, had he approached you legitimately.

This, of course, assumes that the image wasn't public domain or licensed to a third party with rights to distribute - which seems to at least be ambiguous.

Sorry for the legal primer, but wouldn't want you to stick your neck out because you are angry at what this person has done.