Wednesday, December 05, 2007

Local Copyright Issues

Hey everyone,

Hoping you could help me decide the best way to deal with a copyright issue that popped up recently with a local restaurant. The restaurant used a photo from my Flickr account in an emailed newsletter. The photo is copyright protected under the Creative Commons Attribution-Noncommercial-No Derivative Works 2.0 Generic License. I really don't know if this falls under commercial use or not since they don't charge for their newsletter, but they were using it to promote the restaurant. In either case, it was certainly lacking attribution.

How do I bring this up with the restaurant without seeming like a jerk?

This Post was written by Derek from Gastronomic Fight Club


Cybele said...

It's not about them charging for the newsletter. The newsletter is promotional ... an actual commercial for the restaurant.

They've made it very hard for you to not appear to be the jerk, but in reality they're the turds that put you in this position.

Send them a polite note, telling them that you're flattered that they liked your photo (if you are). Specify, as diplomatically as possible, that your photos are not for commercial use (promotion of their for-profit venture) and that they did not contact you in advance for permission to use it and further did not credit the source.

If you like their restaurant and had said nice things about them, you might want to say something to the effect that you would prefer not to blur the line between reviewer and reviewee by having your photo appear in their marketing materials out of context from your blog posting.

THEN - most important - ask how you'd like this to be remedied. Do you want to be paid? Do you want an apology & credit in the next email? Do you just want them to promise to not do it again?

Delilah Hinman said...

Cybele makes some good points; I particularly like the last one. The restaurant has put you in a tough spot but you gotta let them know. If they feel like you're being a jerk, it's their own fault. Of course you don't to come off as one so I would just make it as business sounding as possible. You'll have to let us know how it works out.

Almost Vegetarian said...

This is akin to stealing; they took something that belonged to you and they did so with no prior permission. If it was your sweater, your car, your dog, you would have no problem figuring out what to do.

You can not get the item back. But you can charge them for it. So do so. Send them an invoice. Ask a professional photographer to tell you what they charge and charge the same. It will seem outrageously high. Several hundred dollars, at least. Charge it anyway. Don't undervalue yourself.

Write a proper invoice with terms. I suggest 30 days. If they do not pay, then send a statement stating that they payment is overdue. If they still do not pay, you now have a paper trail to take them to small claims court. Do so. Because if you do not stand up for yourself and your community (bloggers / photographers), this will only happen again and again.

And, remember, this is NOT PERSONAL. This is business. Regardless of what they may say. They stole from you to make money, it is well within your rights to charge them.

Best of luck. I've been there.


marc said...

You don't have to worry about sounding like a jerk. They took your property, it's business. It doesn't have to be personal. I do think it's important for you to determine what you want from them.

Once you figure that out, tell them that's the cost (whatever it is...apology, dollar amount, etc) matter of factly. Hopefully you'll only need to have one correspondence about it. If they don't pay/acknowledge/whatever you should make it very clear that due to negative PR and filing a small claims court suit (whether or not you plan to file) are the consequences for ignoring you.

But if they are smart, they'll handle it right away. They obviously put some stock in your abilities since they took your work. How would they like to be portrayed as thieves? But really, this is simple business, that doesn't have to devolve into becoming personal. You aren't a jerk for standing up for yourself in a kind business-like manner. Good luck!

Bri said...

Sorry, that last comment was by me, not Marc.

Anonymous said...

Cybele's right. Always handle these thing diplomatically. People search the internet looking for photos and don't realize that just because it's on the internet, they can use it for free. And bloggers are no better (although they should know better); I've have pictures taken from my Flickr page and used on other sites.

One blogger actually wrote to let me know how she liked my picture so much she put it on her site (!)

Yes, contact them. Let them know that it was your photo and ask them how you can resolve it. If it's a small business, I'd opt for a food credit. And photo credit and a link to your blog in their next newsletter.

JacquelineC said...

You have copyrighted your work - it's no different than a pickpocket stealing your wallet. It's your property and you would not be sheepish about saying to the wallet thief that they violated you, right?

I'm frustrated as well by these issues, though my thieves were more insidious. They've scraped my blog to use content to draw traffic to shell blogs that clearly exist just for ad revenue. While the remedy under DCMA is onerous to achieve (and this is coming from a recovering atty!) you must at least do the minimum to protect your legal interests which is to send them notice of the violation.

Of course, do it politely (they may just be dim) but be firm. It is illegal. If it's a matter of protecting the business relationship, do let them know that you are interested in doing that very thing and you assume they are as well. Give them a "high road" "out".

Good luck. This scraping stuff sucks, IMHO and it's a time-suck to chase the bastards. But, it's a obligation to define the process of copyright protection.

Lastly, a good warning to consider what we all put where and what we are inviting. We may be full of good intentions and integrity, the rest of the world does not necessarily hold the same values dear.

Good Luck - sorry for the long response - paraphrasing Twain - didn't have time to make it shorter!


McAuliflower said...

So how did this turn out in the end?