This post pertains to handling an unauthorized use of your images or art work. Basically I’m going to tell you of my recently settled infringement case. I won’t name the company’s involved but, one is a major retailer here in Hawaii and Las Vegas. Seems to be one on every block if you need a hint. It all started back in Nov 2008 when I stopped at a new store in the new Queens Shops in Waikoloa Beach. Walking through the store I saw one of my images on an item that retailed for $7.95. A more detailed looked revealed a total of 6 images being used. I sought an employee to see who the vendor was for the item. It was late so, I decided to wait until the next day to see if any of their other stores were carrying the item. First thing the next day I visited all 3 stores in Kona and they all were carrying the items. Each image was used separately. I was able to get some needed info about the items from a store manager including names and phone numbers. As I started communicating with the parties involved it became clear I may need an attorney to best handle this to be sure I get all the information. What I didn’t want, is to say or do the wrong thing and mess up my case. The images were being used illegally. I never had any type of contract for this use. I made sure to buy more than one of each item for evidence and I took photos of them displayed in the store with that days local newspaper next to them for an correct date. This is an important thing to do. My next move was to find an attorney who would take the case. According to the manager, the items with my photos had sold for nearly 1.5 years already! Right under my nose in my hometown and all over Hawaii. Lets just say, I visit our local stores much more often now and look at everything. I was referred an attorney by a friend and as luck would have it I got an immediate meeting. They seemed eager to follow-up on this and get back to me. I was told it could be 2-3 months before they had any news. So, I forgot about it since the holidays were coming up and I was busy. To make a long story short, the lawyer did absolutely nothing and dragged me along for 8 months. Lesson here, Get someone from outside your area if its local. Either they were totally inept or there was a conflict of interest. Regardless they certainly delayed and affected my case in a negative way. Now I needed to find another lawyer. I almost decided to pursue this on my own but, really didn’t have the time. I contacted the Hawaii State Bar association. and explained my case to see if any attorneys were interested. This way I knew whoever responded was serious. I received 3 responses. I decided on one and we started moving ahead. It took 8 months of back and forth but, finally an agreement was finalized. There were 2 companies involved. The manufacturer and the retailer. The retailer was arrogant and refused responsibility and even ignored cease and desist orders on selling the items. The manufacturer admitted the infringement and now it was a matter of a price. Lets get back to the retailer. I made a very reasonable offer that was no more than I would have charge had they legally licensed my work and even offered they continue to work with me so, we could have a long-term relationship. They were defiant and arrogant. So, we concentrated on the manufacturer. The retailers behavior had me wanting to get the most out of them. But, knowing the other party was willing to settle out of court I decided to concentrate on them. In the end they made a reasonable offer that I accepted.
Lessons learned that others reading this might want to take into consideration if they too find themselves in a similar situation. If your unsure of your ability to settle the case, get a lawyer. Of course this depends on what the possible monies might be. Mine was a rather large amount. Contact your local bar association to find a lawyer who can handle the case. Get everything in writing immediately. Leave out no details. Everything is important. Once you’ve acquired an attorney do not communicate with the defendant. Let your attorney do all that. Don’t let lots of time go by without hearing from your attorney. Stay on them. They are busy with many cases. Keep yours fresh in their minds. Don’t be afraid to let you lawyer know exactly what you want and expect of them. Don’t let your mind wander with thoughts of big bucks coming in from the infringement. Be fair and realistic. If I had gone to court, I would have won a larger amount but, what if this bankrupted the manufacturer? Then nothing but expensive lawyer fees. In my case it’s during a slow economy. This was a reality. Have an amount set that your willing to settle at. If the defendant gets even close, accept and be happy you got something. Going to court is expensive and they know it. In my case it all worked out to a fair price. It did take 1 year and 9 months but, this was due to my first and worthless lawyer. I could have possibly settled this on my own fairly quickly since the manufacturer was admitting guilt. But, having multiple parties involved and never having any experience with something involving the law and a large amount of money I found it best to get an attorney. Of course, register your work with the United States copyright office. This makes it an easy case and allows for much more money if you do need to file suit. Keep it civil. Getting mad only hurts you. Many times it’s an honest mistake and settlement will be easy. When its obvious theft, don’t let them get away with it. My images were all clearly marked with a ©Bryan Lowry. This had to be removed for use and this shows the intent to steal. Some bug me that I do watermark my images but, your warning possible thieves and this also helps to win your case. News always spreads fast, and now I have the reputation that if you steal my work I will come after you and I will win. Of course that might sound arrogant to some but, it’s not fair to my paying customers that someone else is getting them for free. Plus, it dilutes the images value depending on what the illegal use is. Those of you who do follow my work know that my images don’t come easy. I’m not about to let anyone steal them. Thankfully these days there are company’s that will track your images for illegal use which allows you to take action recouping the rightful fees. Always best to be fair from the start when invoicing an infringing party. Remember, everything you do will come back at you if it goes to court. Keep it fair and legit. Your already one up on them. Don’t level the odds by doing something stupid.
Hopefully this info is of some help to others. If I remember any other pertinent info I’ll edit this post. Next time your shopping, be sure to take a good look at the gift items selling near you.
Be sure and pass the link to this post on to others if you found it informative.
This is a more recent photo showing the continued retailing long after the cease and desist order.
All text and images are copyright protected ©Bryan Lowry/lavapix.com. Use without my permission is prohibited.