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German Co Using Photo of Me in Marketing Material

Posted: Thu Jul 25, 2013 10:27 pm
by happinessforever

I am a British musician and back in 2008 i was joking around backstage with a friend of mine who is a photographer. I picked up a piece of musical equipment (which does not belong to me) and struck a very silly sultry pose with it, completely in jest, and he took a photo. this was a funny personal photo and it was put along with various other photos from the night on his personal facebook and flickr pages.

fast forward a few days ago, and a friend in London picked up the 2012 catalogue of a large German music equipment company, the company who made the piece of equipment i was holding, and this photo is in their catalogue - bearing my clearly recognisable face! The photo had an embedded digital copyright at the time it was taken (my friend has some fancy camera and if you rightclick the properties on the original photo, the copyright is there.) Neither the photographer nor myself were approached by or granted permission to the company to use this photo for marketing purposes. This photo is in printed brochures which are currently being circulated in the UK (and likely most of Europe, as the company are based in Germany) . It is currently also in the brochure directly downloadable as a pdf from their site, which is available to download worldwide.

I have spoken to several lawyer friends who do agree this is a copyright infringement and unauthorised use and that myself and the photographer have a case against this German company. I realise this is more likely a matter for the photographer, however I am dealing with this on behalf of us both, as he would prefer that and that there is also the element of the assumed endorsement by myself in my capacity as a musician, as I am featured in their marketing material holding one of their products.

Based on the legal consultations I have undertaken so far, I am hoping to negotiate a settlement with the German Co without formally instructing solicitors. I have specifically tailored a letter based on a template I found which refers to the German Co's violation of sections 22, 23 and 27 of the Copyright, Designs and Patents Act 1988, however I am not a lawyer and so have been wondering, whether this Act I refer to will have any validity in Germany ? (Relevance based on the fact that the image is being distributed as brochure form in UK and also available to download in the UK.) and wondering whether there is any more appropriate EU legislation I should refer to instead of/in addition to the Act?

Would really welcome any thoughts or input or let me know if you need any further information from me.

We have a compensation figure in mind, however I would also be interested in any ballpark figures anyone fancies throwing out there, to give us some general perspective.

best wishes and thanks.

Posted: Fri Jul 26, 2013 8:32 am
by AndyJ
Hi Happiness,
You are entirely correct that the photographer is the owner of the copyright in this image, and as he has not given permission for its use in this way, the use amounts to infringement. That is the same under both UK and German law. You on the other hand really have no cause of action under copyright law, but probably have a strong case under Germany's privacy laws, which are much stronger than the UK's. This would be on the grounds that, as you say, the brochure appears to imply your endorsement of the product, rather than a basic right to privacy per se which has to a certain extent been compromised by the publication of the photograph on Facebook.
Under German copyright law an author cannot assign his basic exploitation rights or his moral rights, and can only license his work to be used by others. However aside from this distinction, UK and German law is pretty similar, which is hardly surprising as they both have to reflect EU Directives on the subject. I should stick to quoting the relevant German or English law, rather than EU Directives as this is what the courts would have to work from if this were to go to court.
As for the forum in which this dispute should be settled, either the UK or Germany would be appropriate assuming that the company is genuinely trading in the UK. If the brochure is only available in German and has prices in Euros rather than in pounds sterling, then it is arguable that the brochure is not aimed at the UK market and therefore the more appropriate forum would be Germany, so quote the German law in your dealings with the company. However, since you are seeking a settlement rather than litigation, if the company acknowledge that they are at fault, and since the law is largely the same in principle, the actual forum is less of an issue.
I can't really help over the figure for any compensation for the copyright infringement, as effectively this is a commercial transaction, not a legal remedy. In other words you will need to negotiate a sum which reflects the market rate for this sort of use, possibly with an additional sum to reflect the flagrancy of the infringement and the fact that a settlement will avoid any bad publicity which might arise from a court case. To give you some idea of UK rates, you could check the NUJ website for the freelance rates.
As far as the breach of privacy rights is concerned, then a more robust approach might be appropriate, especially as this sort of issue is treated much more seriously in the German courts.
Ideally you would probably get a better overall deal by using a German lawyer, because it will raise the seriousness of your case in the eyes of the German company, and you should be able to reclaim your legal costs as part of the settlement. You should be aware that the company will undoubtedly hand the matter over to their lawyers and that if you decide to continue on your own this might place you at a disadvantage. It will also tend to spin things out. Try to get into the mindset that as far as the copyright matter is concerned this is a business negotiation and that you are seeking the sort of remuneration that would be appropriate in a normal commercial arrangement. Conversely you should express your personal outrage at the infringement of your privacy in strong terms in order to get the company's attention.
Good luck with this, and let us know how you get on.

Posted: Fri Jul 26, 2013 11:17 am
by happinessforever
Hi Andy

Many thanks for your reply and your invaluable insight. Very much appreciated.

I am now in contact with a German firm who has a London office, and I have made more emphasis regarding the breach of privacy aspect. I am pleased to know that this is taken very seriously in Germany. As the copyright infringement is more a matter for the photographer, I did not think it would matter much that I personally was truly horrified that my image was used in this way, so it is good to know that this will be taken into account as well.

I will let you know how we get on.

Thank you again!

Posted: Fri Jul 26, 2013 9:15 pm
by happinessforever

i have now spoken with a nice German lawyer and he also agreed we (photographer and I) should be due some compensation for this infringement and the breach of privacy aspects. He explained to me what steps he would take should we choose to instruct him... initially they would send a 'cease and desist' letter to the company to get things started. He agreed that in the circumstances this will be pretty much impossible for the company to honour as the printed brochures are already in wide circulation, and the pdf brochure has probably been downloaded thousands of times, so this puts us in a very good negotiating position from the start.

Following my conversation with him, I am thinking rather than pay someone a lot of money to do something which I am able to do myself; compose a letter (i have already written most of it). I think I would like to have a go at approaching the company independently rather than formally instructing a solicitor. i could always do so later down the line if needs be!

My question now is whether it is a requirement to first send a 'cease and desist' letter? or whether I could just send an all-encompassing letter, which details the case, expresses a wish for cease and desist but recognising this is a likely impossibility, and thereby setting out our desired compensation, in one letter?

Before I get all letter happy, I was just wondering whether the cease and desist letter is a necessity as a first move.

This is a pretty big company so I want to try and approach this as meticuloulsy as possible.

thanks again for taking the time to read this.

Posted: Sat Jul 27, 2013 7:04 am
by AndyJ
Hi again Happiness,

I can't speak for the German legal position but in the UK a cease and desist letter would not be mandatory, but it does put the other party on notice that you are about to take action on the issue. A major ingredient of a c&d is the laying out of your case explaining in what way you have been wronged - something you would have to do in any event. That said there is nothing to stop you combining a formal request to cease the infringing action (ie not releasing any more brochures featuring this image and if it is also on their website, removing it) while the negotiations get underway, with a request for a payment of damages.

A c&d letter may be temporary in nature if, for example, you and the photographer are prepared to agree to the continuing use of the image for an additional fee, an option which might appeal to the company as it would not then have to pulp the existing brochures.

Should the matter have to go to court at some stage, then a letter before action is required as pre-cursor, so by including a phrase to this effect, you will not jeopardise this possibility.

Posted: Mon Jul 29, 2013 11:30 am
by happinessforever
Many thanks again.

I am in the process of composing my letter and I will let you know what happens.

I may come back with one more question or two before I am ready to send it, but hopefully I wont need to trouble you further.

Your taking the time to answer my questions has been sincerely appreciated and it has ben reassuring to have impartial input from someone who clearly knows their stuff! ;)

best wishes.

Posted: Mon Jul 29, 2013 1:54 pm
by happinessforever
well the photo has now been spotted in their brand new Winter 2013 catalogue! Albeit in a smaller form, it now appears as part of a collage on the opening pages. However, this should certainly strengthen our case even further.

Dont know if you would be interested to see the letter Ive written, (with relevant parts blanked out) to see whether there is anything which could be added or subtracted? I could paste it in here but not sure if thats the done thing, but I would appreciate a lookover if you feel so inclined.

Posted: Mon Jul 29, 2013 2:47 pm
by happinessforever
we decided to look back even further and found the image is also in the 2011 catalogue in the same prominent position as in the 2012 catalogue... this is a huge company, when you go to download the brochure, you have options to d/l it Chinese, etc. True global reach.

So i am beginning to think it might be wise to instruct German lawyers now, as this is now three different catalogues which bear this image, spanning a couple of years.

Posted: Mon Jul 29, 2013 3:14 pm
by AndyJ
Hi Happiness,
If you have doubts about your ability to deal with this claim on your own, I strongly recommend that you use a lawyer - preferably one versed in the German legal tradition - especially if the company you are going after is a large one, since as I mentioned, they are likely to turn the matter over to their lawyers.
You need to make it clear that you want your lawyer to recover his costs as part of the settlement, so that you do not end up out of pocket. Again, a knowledge of what is possible under German law will prove invaluable here.

Posted: Mon Jul 29, 2013 3:28 pm
by happinessforever
Thank you :) I think it would be wise to get the nice German lawyer I spoke with on board. I will let you know how we progress when anything of significance happens. thanks again for all of your helpful words.

Posted: Wed Aug 07, 2013 8:20 am
by AndyJ
Hi Happiness,
As you may be aware the site has been down for a few days, otherwise I would have posted this earlier. It is a Google translate version of section 22 of the German Kunsturhebergesetz (rough meaning: art copyright law)
Images may be publicly displayed disseminated only with the consent of the person portrayed. The consent is in doubt as granted if the person portrayed it that he allowed himself to reflect, received a reward. After the death of the person depicted is required to expiration of 10 years, the consent of the relatives of the person portrayed. Members under this Act, the surviving spouse or domestic partner and children of the person depicted, and if neither a spouse or life partner children are still present, the parents of the person portrayed.
Not the best translation, but my German is not good enough to improve on it without possibly distorting things even more. Anyway, if you do instruct a German lawyer, he will be able to explain this further.

Posted: Wed Aug 07, 2013 8:48 am
by happinessforever
Hi Andy

Nice to hear from you again, thanks for the post.

I think this legislation you have quoted supports our case (specifically the breach of privacy aspect) as no consent or allowance was ever given, certainly no reward received, (*and I am still alive) ;)

We have further discovered that the photo appears a total of 6 times in their brochures across 4 years (!) so we definitely decided to formally instruct a German lawyer (sincere thanks to you for your indication that this could be the best way forward, indeed it seems to be!).

I shopped around and have managed to find a great German lawyer who is straight-talking, tenacious and also very fair in price and he was willing to agree a fixed fee with us. He was also kind enough to allow us to proceed with him in 2 stages, which minimises my & the photographer's financial risk to proceed. Stage 1 being the initial C&D letter, and then based on the reply from the Company, we can then decide whether to instruct further, in which case he has agreed to allow us another fixed fee for Stage 2, negotiating compensation on our behalf - very reasonable costs for both stages.

(I am only putting the cost information here in case anyone else finds themselves in the same position, so that they can know it is an option to propose a fee structure to their lawyer in this way. One lawyer told me I would have to pay him £1K upfront to deal with this. Keep shopping if this happens to you! Or PM me and I will refer you to the lawyer I found :))

Photographer is on holiday at the moment but when he is back, we complete the admin required by the German firm and then off goes the C&D letter!

I will give an update when we receive a response from the Co to the letter. I cant imagine they have a leg to stand on!

Best wishes.

Posted: Wed Aug 07, 2013 4:21 pm
by AndyJ
Hi Happiness
I'm glad to hear that things are proceeding as you have described.
It is good advice to ensure that you get an accurate forecast of costs before you instruct a lawyer, especially when he will be working in a different jurisdiction and in a different language, so making it harder for you to keep abreast of developments.
In the UK, I would have expected a C&D letter to cost no more than about £400, so the amount you were quoted by one lawyer is on the high side, even allowing for the trans-border nature of the work, and you were wise to continue to shop around. Also, the idea of taking this litigation in stages makes sense: if the company recognise their position is weak and decide to settle early on, there is no point in either side throwing even more money at the case.
Thanks for keeping us updated, and good luck.

Posted: Tue Aug 20, 2013 9:00 am
by happinessforever
hi there

must be brief now, but we have now had a reply from the company.

Firstly, they state that their 'publisher' is an offshore company based in the Philippines. Not sure how this impacts our case, but it doesnt sound good and seems that they are attempting to distance themselves from their own product catalogues? Surely they have some responsibility even if it is published by a different company (the publisher company name is also strangely similar to their own name).

Secondly, they have said that all of the rights of the photo were transferred to them in the form of a photo competition relating to the company (We love X Company, etc). Neither the photographer nor myself have even heard of this competition, so we did not enter the photo into it. In fact, we are having trouble finding any evidence that this competition is even real. The Co. state that the competition took place in 2009.

We are awaiting the advice of our German lawyer on what he thinks is the best option to proceed.

I would be interested to hear your thoughts Andy, on these latest developments.

Posted: Tue Aug 20, 2013 9:12 am
by happinessforever
small update: we have now found the 'photo competition' online, it is a flickr group from 2009 where people can upload photos to this flickr group (and i suppose in doing so the person transfers the rights to the Company), for potential use in their catalogue.

However, our photo does not appear amongst the entries.