 malissia harwood |
If someone alters a photo My husband took a photograph of a cafe added a poem that he wrote matted and framed it than gave it to the owner to display on the wall in the cafe . The owner then took our poem and name off the picture and is using the cafe picture for his menus and then rehung the original in the cafe. Has anyone had this happen and what can we do
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Jon Close |
The cafe owner is under the impression that you gave him the photo, ie. that you also transfer copyright and he now owns it and can use the image as he sees fit. It was a gift, right? If you intended it only to display but not an copyright transfer, you should make that clear to the cafe owner. Realize though that he may still have rights regarding what you can do with an image of his cafe.
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Mark Feldstein |
Well, that was a nice gesture on your husband's part Malissia, but there are a number of issues you need to look at. Without delving into all of them here, which is not a good place to be getting legal advice any way, you first need to know what your husband told the cafe owner in terms of usage at the time he delivered the gift versus what the owner understood he was entitled to do with the work since it was a gift to him. That in itself is a major issue in the case of gifts. Another central issue is whether it had a copyright symbol on the photograph and your husband's name. If so, that would aid any case he brought for infringement along with whether the work was/is either registered or in the process of being registered in a timely manner. That goes to whether there was actual or constructive notice of right protection. The bottom line, so-to-speak, is to send the cafe owner a "cease and desist" letter by certified mail, informing him that the work IS copyrighted and that he's infringed on it and that must cease and desist from doing so. Also, claim damages in the amount of xyz $. Either your husband can do that or hire a lawyer specializing in intellectual property to do so. In the meantime until you guys get this resolved one way or another and after you send such a letter, I wouldn't recommend going down there for even a bowl of soup. In my view, it was a lousy thing for the cafe owner to do and at a minimum he should have provided your husband photo credit on the photo, but otoh, live and learn. A stock delivery memo along with the gift would have gone a long way to prevent this kind of thing. Take it light ;>)
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- Gregory LaGrange Contact Gregory LaGrange Gregory LaGrange's Gallery |
I see a back and forth conversation coming of you don't have my permission for the photo; but it's my cafe; but I took the picture; but I didn't give you permission to take a picture of my cafe. Good intentions gone awry.
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malissia harwood |
The owner knew the photo was taken as he is in it also and he also knew it was for display only, as we had other pictures in the cafe also, he even stated if he wanted to use it for anything else ads cards ect he would ask before he used it. As for other use we could do nothing with it just the idea of it being used without permission Malissia
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- Gregory LaGrange Contact Gregory LaGrange Gregory LaGrange's Gallery |
Well then, I bet he just doesn't think of putting it on his menu as advertising. He doesn't give out menus like he would business cards. Probably considers it making the place look nice the same way the pictures are on the wall.
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Samuel Smith |
ah malissia, now,was this photo taken on his property?with permission? boy as mark says a gift....that gives up all rights unless there's a written contract. so we're supposed to believe you that he agreed to this,that a court of law,even though he swears on a bible,can disagree,your right? do you have a waiver that says this cafe owner gave you the right to photograph him?were you contracted? and since we have no real clue as to the whole story,my dogs better than your dog,dung splatters. a gift with restrictive rights not in print?this is what you say.yet you want us to think he wants to shove a stick up your butt and call you a sucker. as a gift you don't even get photo credit? sincerly,what.
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Mark Feldstein |
Yep. This is the classic "I said and then he said" dispute. No written agreement you're pretty much S. O. L. Unfortunately, by your own comments your husband only has about two alternatives: (A) try and negotiate a settlement with the restaurant owner based on what they recall their original agreement to be; (B) Commence an action for copyright infringement in the U.S. District Court for the jurisdiction you live in AFTER your hubby secures timely registration of the work OR gets the process going in a timely manner. Note that municipal or other types of state courts don't have subject matter jurisdiction to hear any claims sounding in copyright law (which is a federal rather than a state right). Personally my choice would be "A" above and after than, drop it. Like I said, "live and learn".
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malissia harwood |
I contacted an attorney today he said that a person cannot use your work with out permission even as a gift that it is your work and cannot be used for any other reason except what was intended with out the written permission. In the same reapects I cannot sell that photo without his permission. this is from a copyright lawyer in Oklahoma City Oklahoma we are located in Lawton OM
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malissia harwood |
SS Lawton Oklahoma
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Samuel Smith |
i would like to see the written contract your husband had when he gifted said photo.that he explained for display purposes only. I hope that same lawyer represents you in court and doesn't take a dime unless you win??ain't gonna happen.if he/she is so sure,ask for a deferment of payment that they take a percentage of the final settlement.then take notice which leg they stand on?is there even a shoe on that leg? the few I have given up to churches and non-profit organizations have went quite well.i was given credit,which I am humbled to this day.geez,that they asked,wow.so if this person is dishonorable,and i'm sure you are offended,not enough to just say hey?what the f?i/we got screwed? but since we only know your story,ya know we aren't really jurors,your lack of evidence,your ability to prove he violated some understanding??? so if I question crop circles?i say they're real?would you agree? boris
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Samuel Smith |
my email was refused tommiboi.mr hotmail. many here are going to question my post.maybe you want to give some info not knowing the email I received from you? now I think a bit spineless.why not tell us all what you think of me?right here on this forum? so many won't give 2 years,or more, of their life to serve their country and complain about crud. it is your right to your name calling,accussations,opinion? not fair at all,sam
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