posted on April 1, 2002 12:04:41 PM
I have been a seller/buyer on eBay since the beginning, and haven't run across this one yet. My nieghbor who has purchased $15,000 worth of bedding items from Domestications and sells them on eBay. This morning she received the following email
.
"As a representative for Domestications, I must ask that you remove the images taken from our web site for your comforter items
immediately. Images can not be taken from our website for your use on ebay. You must create your own images for use on ebay.
As a Vero participant, we will petition ebay to end your auctions for you if you do not remove them."
One, my neighbor IS NOT copying pictures from their website! How tacky! She simply scans the picture that is inserted into the package and uses that as her picture. Does this policeman have a valid right? Can he have her ads removed?
Thanks for the help.
Barbara
posted on April 1, 2002 12:24:13 PM
Your friend is illegaly copying a copyrighted image. Scanning a professional photograph is against copyright laws. The picture included in the packaging is indeed a professional photograph. Your friend is lucky they are just asking her to end her auctions and not pursing legal action against your friend. If she spent $15000 on the bedding, there is no reason why she shouldn't buy a $300.00 digital camera and take pictures herself.
posted on April 1, 2002 12:36:56 PM
Thanks for the info. I really appreciated the way helpful way in which RichieRich responded. eauctionmgnt - CHEER UP!
I appologize if you found my words harsh. I certainly wasn't trying to offend. However, it is very important to realize that these companies do have many legal rights. These rights include allowing them to collect damages for the use of their images. Fines can be as high as $100,000.00. It is a very serious matter, and should not be taken as lightly as the average person tends to.
posted on April 1, 2002 12:55:08 PM
eauctionmgnt thanks for your response. I originally posted this question because I didn't know...........get it? I thank you for your information.
posted on April 1, 2002 03:05:52 PM
I'm not a lawyer, but I have to disagree with the previous opinions. I don't think your friend was wrong at all!
Yes, the photos included in the cardboard sheet packed in the linens ARE professional photographs, but they are also part of what's being sold (like the tags of a garment.) Your friend didn't steal files from the online catalog, she scanned in something that is part of what she OWNS and is part of its value (the linens would be worth less if they weren't in the factory packaging with all appropriate labels.)
A similar situation would be if I had a Buffy the Vampire Slayer box set and I posted a photo of it so that people could see what they were getting....yes, the cover was professionally designed, photographed and copyrighted, but using that image to sell what I have would probably be a protected use. Taking an image off the Borders website of a box set and using that image to represent my own would probably be crossing the line.
Plus, Domestications probably doesn't own the pictures in the first place .... one would assume they're the property of Westpoint Pepperell or whatever mega-national corporation made the sheets. They don't own the images, they don't have standing to object and they are abusing the VERO program.
I would send a strongly-worded response that includes the information that the pictures WERE generated by your friend by scanning the label of the set she bought, and ask them to prove that they even have standing to challenge the use of an image they had no part in generating. Remind them that taking action against your friend when they DON'T have standing can easily be construed as frivolous, and an unfair attempt to interfere with your friend's business.
edited to add: bjrice....are you, or have you ever been, an art teacher....someplace warm?
posted on April 1, 2002 03:14:58 PM
The point here, I believe, is that she was told now that she can not use the photo or she will have the auctions cancelled.
So either use different photos or get the auctions cancelled. ebay will cancel them without any questions. So why not take the warning and remove the photos, put on a set of the bedding take some pictures and put them on your auctions.
I really don't think anyone wants to have to take anyone to court to see if the papers in the package can be used to resell the item.
Personally, I would do as they ask.
Just my opinion....Right? or Wrong? I don't have the $ or the time to fight it in court to find out.
posted on April 1, 2002 03:26:19 PM
And I think answering their letter and setting them straight (at least as an opening gambit) is a lot less time-consuming than opening a package, making the bed (assuming there's a bed of proper size in the house) taking a photograph yadda yadda yadda.
Plus, it's WRONG to give in to the forces of darkness! The seller was within her rights, and she should not let herself be pushed around, at least not this early in the game.
Worst-case scenario, the seller would have to go through the VERO process. But she'd win. You're absolutely (per eBay's own policy) allowed to take pictures of things you own. The Domestications people probably assumed the image was simply pilfered off their own site, without looking closely at the image.
Another possibility is to re-crop the label scans to include more of the label than just the picture. That way, there's no way anyone can mistake the image in the auction for the image in the catalog...and the seller has (technically) complied with the order to change the images.
[ edited by msincognito on Apr 1, 2002 03:27 PM ]
posted on April 1, 2002 03:40:27 PM
They can stop you from using the pictures, and cost you a lot of money to boot...
I am a professional photographer by trade and can tell you that by scanning the images from the packaging, without prior written release from the copyright holder, you are in violation of copyright laws and since you are selling items ( commercial profit seeking venture ) using those photos, you will be found guilty of copyright violation in ANY court, instantly. Of course if you hired a lawyer to defend yourself from a suit brought by the company that owned the images, the first bit of advice from the lawyer would likely be, "they got you nailed - pay the amount they want and avoid more damages and legal expenses in a trial".
When a company has photographs done, the photographer assigns a LICENSE for the use and in the case of product photos used in packaging and advertising, it is common for them to assign the copyright to the company that hired them. Either way, the images are copyrighted and to use them without a written permission is to invite lots of trouble.
This is a soapbox issue for me, sorry, but I have had countless numbers of my own images scanned from books, magazines, and calendars that I photograph without my permission and seen them end up on ebay for sale by others as shirts, mousepads, or on websites, commercial ads, and worse - all without the proper amount of payment that I should have gotten, and each person stealing my images was as guilty of taking food off my familys table in the same way as if they had broke into our home as thieves. I spend huge amounts of money for my education, overhead, equipment, film, processing, and time in order to create an image that looks perfect, and when someone uses it in an unauthorized way, THEY ARE STEALING, PERIOD.
posted on April 1, 2002 04:13:37 PM
My 2 cents on this matter is:
What would be wrong if she just took pictures of the items as they look when she receives them? Ex: Comforter still in large plastic zippered bag with the cardboard information card in it. That way, she isn't scanning anything and she shows the picture of the item but the customer can see the whole ball of wax.
Would that get Domestications off her back??
I think that as msincognito said earlier, she purchased this whole item.
There's no danger of developing eyestrain from looking at the bright side of things!
posted on April 1, 2002 04:20:14 PM
Eric, there's an important distinction here. You're talking about converting an image into something other than the use for which it was originally intended i.e. advertising for the product depicted.
Sect. 109 of the copyright law..."limitations on exclusive rights," deals with the right of someone who owns a "particular copy" of a copyrighted work to sell or transfer that copy.
Section 113 (c) goes on:
In the case of a work lawfully reproduced in useful articles that have been offered for sale or other distribution to the public, copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles,or in connection with news reports.
In plain English, the seller owns the label that came in the linens. She is allowed to take a picture of the label she owns, assuming the label was lawfully produced by the manufacturer, for the sole purpose of selling that label (as an intrinsic part of the linens with which it comes.)
Think about it, Eric....when a photographer assigns rights to a manufacturer, they HAVE to be assigning those rights to all the downstream users of that product. Say you take a photograph for the cover of a John Grisham novel. That photo goes to the publisher, who sends it to the printer, who ships it to distributors, who ship to wholesalers, who ship to bookstores, who then sometimes ship back to wholesalers, who ship to remainder houses. Are you saying that if any of those entities besides the publisher takes a photo of the book and puts an ad in the Sunday paper (New Grisham is IN!) they have to get permission from you? Not likely.
What you are talking about is images used for some other purpose than selling the item photographed (in this case, the "item photographed" is the label, which incorporates the original photograph .)
Now, if bj's neigbhor started putting those photographs of sheet sets on t-shirts and selling them, there would be a copyright issue. But Domestications would not have standing to pursue it. They are neither the producer of the work, nor the entity that commissioned it....in fact, bj's neighbor is just one step down the food chain from them.
posted on April 1, 2002 06:12:58 PM
Hi Everyone,
Thanks for the great info and ideas. It's a very interesting topic. Today, my neighbor has contacted on eBay many other sellers who are selling Domestications products. They also have been contacted and threatened. They also confirm that most of them have spent $30 to $50,000 buying from Domestications. They purchase the products at full catalog price - most around $40. They usually resell on eBay for $80. Why would Domestications want to "shoot themselves in the foot" like this? The ladies have decided to band together and not purchase any more items from Domestications.
Who wins? Who loses?
posted on April 1, 2002 07:24:24 PM
>In plain English, the seller owns the label that came in the linens. She is allowed to
>take a picture of the label she owns, assuming the label was lawfully produced by
> the manufacturer, for the sole purpose of selling that label (as an intrinsic part
>of the linens with which it comes.)
In plain English, she is NOT buying the *rights* to reproduce the label/packaging so she may NOT take pictures of it & use those photos for her own profit.
>Think about it, Eric....when a photographer assigns rights to a manufacturer, they
> HAVE to be assigning those rights to all the downstream users of that product.
No, they don't.
> Are you saying that if any of those entities besides the publisher takes a photo of
> the book and puts an ad in the Sunday paper (New Grisham is IN!) they have to get
> permission from you? Not likely.
Actually, they do. Well, what really happens is that the publisher or distributor asks the retailer to advertise the product and supplies him with promotional materials, including copyrighted graphics and licenses to reproduce those graphics for the sole purpose of selling those books.
posted on April 1, 2002 07:55:40 PMPlus, it's WRONG to give in to the forces of darkness! The seller was within her rights, and she should not let herself be pushed around, at least not this early in the game.
The images are copyrighted. Scanning a company logo is different from taking a photo of an item which includes the logo.
It doesn't matter who is right or wrong. eBay will warn and then suspend a user who doesn't heed the warning. Do not use the photos until you file a counter-notice with VeRO and receive a reply from eBay.
Read the following closely:
... of pictures or photographs of such articles ....
The scanned image is not a "picture or photograph" of the item. It is a scanned reproduction of the advertisement. By copying Domestications' advertising, you are implying to customers that you are associated with that company. My $.02 cents.
(BTW, I would do the same as you, scan a label. But you have to pick your battles. Don't get suspended over it. File the counter-notice.)
posted on April 1, 2002 08:16:27 PM
what's amazing to me is that anyone would intentionally pay twice retail to somebody who isn't even an authorized reseller..... that's just plain wierd...
