using my picture

[mrmacca]

hi all ,
bit of advice needed , someone has asked if they could use one of my pictures of one of my pets as a reference in her designing , if i agree does this mean that they can use it and sell it on ????
many thanks
dave

[shannyD]

i wouldnt think so. maybe ask her what her intended uses were going to be?

[mrmacca]

she actually runs a business in making needlework arts and asked if she could use one of my pics as reference , she did not say anything about using or selling .
dave

[shannyD]

she might be making a needle work of the photo you are talking about.

personally for me.. i wouldnt have a problem with letting someone use an image for something like that.. as long as she wasnt selling the photo online, or using it as her own.. i really wouldnt see a huge problem with it at all.

[mrmacca]

cheers for the advice

[Mike R]

tell her that you want one in exchange for letting her use the photo.

[khall]

I think it depends on how commercial the product is going to be. Is it going to sell 10,20,100 or10,000?
If it's going to be "Big Time" then you should be getting paid.

[harroz]

Agree with khall. It's all very well if it is a one off small fry, but what if she is a large company and creates needlework designs for sale worldwide.

thats what this tells me...

use one of my pictures of one of my pets as a reference in her designing

[mrmacca]

she is actually selling these items that she makes http://www.janndesigns.co.uk/JDinformation.asp
she never mentioned anything about reproducing or selling just that she wanted to use as a reference that to me doesnt mean can i use and sell.
thanks for the advice
dave

[Box Brownie]

The devil as they say is in the details.

What is "a reference" for her purposes??? She may be using the term to cover the fact that she will be using the image to make a 'derivative work' i.e. using your image in the creation of her needlework products. If that is actually so, then she is going to profit from your image.

So perhaps its a case of finding out precisely what she will use the image for and if any way it or (cropping) parts of it make up her product then AFAIK that is a derivative work.

Edit - having looked at the 'pets' section on her site I would punt a guess that most if not all of the "pictures" were from photographic origins i.e. derivative works as I understand the term.

Best of luck coming to a mutually agreeable arrangement with her :)

PS Also have a look at her famous people section - I doubt she actually took those original pictures, perhaps you can ask her what stock agency she went to to get a " usage license". Not a betting person but they make me think of the sort of fan pictures...........does she know about copyright and image licensing? She must do as she has a copyright statement about her "products". :lol:

[egordon99]

Well if she does make a piece using your picture as a reference, what else would she do besides sell it?

Find out how many she plans on making, how much they are going to sell for, and come up with a price for her to buy the "rights" to use your image to make and sell those products...She's making a profit on her work with help from your work. So make sure you are compensated accordingly!

she is actually selling these items that she makes http://www.janndesigns.co.uk/JDinformation.asp
she never mentioned anything about reproducing or selling just that she wanted to use as a reference that to me doesnt mean can i use and sell.
thanks for the advice
dave

EDIT - Went to the site, and she makes DESIGNS to sell to people who then sew it themselves.....So find out how many designs she expects to sell and for how much. The rest of my advice still stands.

[mrmacca]

thanks everyone for the advice , will let you know the outcome .
dave

[mrmacca]

hi again ,
a few months have passed and i recieved an email today which i have posted below , i have not yet asked what her intentions are for the design she has made , but i am sure that she intends reproducing and selling , so can someone give me a few lines that i should put in my email to her , much appreciated.

Hi Dave,

At long last the cross stitch design of Max is done, sorry it has been so long coming, but we are still extremely busy, and I haven't had much time to design anything.

I shall be printing out the pattern / sorting threads for the kit later this week.

Please let me have your address if you would like a kit of Max, do you have anyone who would stitch it for you? I've attached a picture of the finished design

Regards, Jan

[Box Brownie]

hi again ,
a few months have passed and i recieved an email today which i have posted below , i have not yet asked what her intentions are for the design she has made , but i am sure that she intends reproducing and selling , so can someone give me a few lines that i should put in my email to her , much appreciated.

Hi Dave,

At long last the cross stitch design of Max is done, sorry it has been so long coming, but we are still extremely busy, and I haven't had much time to design anything.

I shall be printing out the pattern / sorting threads for the kit later this week.

Please let me have your address if you would like a kit of Max, do you have anyone who would stitch it for you? I've attached a picture of the finished design

Regards, Jan

Hmmmm! a good while on and the intention is stated ~ looks like she will indeed be selling "the image". Surely the time has come to reprise the situation and if the image in effectively a copy of your photograph then she should be agreeing & signing (with appropriate recompense) for its licensed usage. If however the image is clearly (?) just a representation of your image then the grounds are weaker i.e. it was really just for reference.

I would say its your call ~ she is due to print the pattern this week perhaps you should be telling her now you need to see the "image" to ensure it really is only a reference but if a derivative work then she should buy a usage license from you before she goes to print. Whatever the fee should be is moot but she clearly has a print run in mind (note not actual sales) so maybe the fee should be based on print run per year i.e. a yearly license renewed each year to reflect the print run(s) that year.

Best of luck in as possible getting your reward for an image "sold".

:)

[mrmacca]

Hmmmm! a good while on and the intention is stated ~ looks like she will indeed be selling "the image". Surely the time has come to reprise the situation and if the image in effectively a copy of your photograph then she should be agreeing & signing (with appropriate recompense) for its licensed usage. If however the image is clearly (?) just a representation of your image then the grounds are weaker i.e. it was really just for reference.

I would say its your call ~ she is due to print the pattern this week perhaps you should be telling her now you need to see the "image" to ensure it really is only a reference but if a derivative work then she should buy a usage license from you before she goes to print. Whatever the fee should be is moot but she clearly has a print run in mind (note not actual sales) so maybe the fee should be based on print run per year i.e. a yearly license renewed each year to reflect the print run(s) that year.

Best of luck in as possible getting your reward for an image "sold".

:)
images below , thanks for all the advice

384324

384325

[Box Brownie]

Hi Dave

FWIW as I know nothing ~ based on what you have shown what she has done is virtaully a copy i.e. derivative work. Why do I say that well, again just my very simple understanding, is look at all the commonality between the two. I really do wonder what she thinks "a reference image" is??? For that matter I wonder what for copyright purposes and not infringing it a reference image is???

There was a goodly while ago and sorry I cannot recall where I saw it someone who had allowed a steam train image to be used "as a reference" and for all pratical purposes it was a painting of the image!

Were I in your shoes I would strongly indicate that what she has done is create a copy of your image and as such she should be buying a license for its use ~ as for how much well again thinking out loud it could be a one off fee with limits e.g. restricted print run (sight of copy of the print order?) or license based on how many prints she will be making every year. Note as mentioned previously I refer to print run not her sales.

I would like you be delighted to have my image used commercially especialy such a fine fellow as Max but the detail word is commercially ~ she will profit from Max's picture and IMO should pay a reasonable fee for its use!

Best of luck :D

PS Not that such an issue would ever come to court but make sure you saved web pages of hers showing ther offending image.

PPS I come back to what said in post #10 - how many images did she actually buy a license for such as the famous people ones???

[mrmacca]

thanks for all the advice , will be sitting down tomorrow and writing her a nice email regarding the matter and will let you know the outcome as soon as i get a response .
many thanks
dave

[Box Brownie]

thanks for all the advice , will be sitting down tomorrow and writing her a nice email regarding the matter and will let you know the outcome as soon as i get a response .
many thanks
dave

I would sincerely hope the matter can be resolved amicably with a suitable agreement for the use of the image and paymant for said usage.

[Box Brownie]

Dave

Just to say - I see she has footballers (Liverpool???) I do not doubt they protect their likeness strongly. Has she really got a license to so use their images???

Maybe before writing to her you need to get legal advice? My local CAB had a legal clinic free of charge which I found useful on an employment mattter. I wonder if your area offers the same service???

[mrmacca]

good idea , will seek a bit of legal first.
cheers
dave

[mrmacca]

never said she wanted to copy and sell , she said as reference and that to me is not to copy and sell . email from her below



Hi David,

I am sorry that you have changed your mind about the use of your photo as reference for my cross stitch design.

I'm sorry but I thought that you understood that the design was to be sold, as I mentioned in my last email to you that I had hundreds of designs on-the-go at any one time. It must have been clear that I design cross stitch for a living. I am a very small company - just me alone. I thought I mentioned my website.

I think that you might have told me sooner how you felt, as we have corresponded, in a very friendly way, I thought - many times now. I never use images without asking permission first, as I am very careful about copyright. If I get a refusal, then I don't use the image.

Because of the many hours of designing time involved, I obviously own the copyright to all my cross stitch designs. I have no intention of claiming copyright for the original image which has inspired my design. I always list a credit to the original image copyright owner. The copyright phrase on my website is quite standard, and protects my work. Ofcourse you have right to your photos, that is why I asked permission from you.

Please read my website information again.

I don't think you realise that I have spent many, many hours creating this really lifelike design of Max, not to count the many samples that I have sewn to make sure that the stitched portrait will look just right. The image I sent you is the stitched design. I have created the design by selecting individual colours of cottons, and pain-stakingly placing each one in position to get it just right.

As for how many design kits I might sell - I have no idea. You have been to my website so you know I have hundreds of design kits in my collection, nearly 1000 in fact. I love the challenge of desiging them and always having something new to offer, it doesn't bother me if I don't sell a design. In fact some designs never sell, and others do.

I hope I have covered all your queries.

The process of cross stitch designing can be a complicated thing for someone with no knowledge of the subject. I hope I have explained it in such a way that you can understand now.

Please get back to me if anything isn't clear to you,

Kind regards, Jan

[Box Brownie]

Hi Dave

Firstly did you get some legal guidance/feedback.

I would have no doubt a lot of effort goes into making the cross stitch final design with the choices of thread colours et al. But looking at the "image" of Max that is a virtual copy of the image you posted, yes she may have reduced some of the colour details but IMO she has created a derivative work. There may be a fine line between reference image and derivative work ~ hence the need for 'correct & usabel' legal guidance???

Oh, interestingly AFAIK there are software programs that will take an image and make a cross stitch pattern from it. IMO the copy like likeness of Max to the "pattern" make me think of such a conversion ~ this in no way detracts from the work involved in the further steps.....?

Yes, she like any business has no idea other than other designs success or not how many would sell that is why I suggested a payment based on the print run ~ granted this pre-supposes she is getting them printed in volume? Perhaps she has a method of printing singly on demand. Her last paragraph implies she is printing on demand?

"The process of cross stitch designing can be a complicated thing for someone with no knowledge of the subject. I hope I have explained it in such a way that you can understand now" Her last line is verging on the patronising :(

Based on all that has gone before and her reply above and not knowing what you said to garner that reply - IMO if I were you I would stick to my guns and ensure this was a business transaction.

Incidently I note she says " I always list a credit to the original image copyright owner" well I could not see that on her site! IMO (again) its not right to just so note that in the pattern package. And the cynic that I am is she noted it on the site against each image then the Google content crawler would end up 'showing' it .....and who knows what the other images owners would think......??? ;)

Returning to my starting point ~ if you have not consulted on the matter then see if you can get that and ask if the legal eagle will help you draft a letter that advises her of the laws of copyright & derivative images. She says she always asks permission but I still wonder about those footballer designs?

All the best :D

PS Found a few links worth reading http://www.asmp.org/tutorials/derivative-works-and-compilations.html http://www.talkgraphics.com/showthread.php?t=34936 and http://nylawline.typepad.com/photolawyer/derivative_works/ I have not read these but hope that within them you will find something that throws enough light on the matter? A Wiki page that maybe adds http://en.wikipedia.org/wiki/Wikipedia:FAQ/Copyright

[mrmacca]

after reading your advice and other advice that i had recieved , i did send email stating what i thought regarding the copy of my picture and this is what i recieved back :

Hi again,

I haven't copied and sold!

I asked your permission to use the photo for my cross stitch designing website.

Please don't ever contact me again.

Have a nice day

i agree she hasnt sold but she did copy , i have pointed this out to her and i am currently waiting for a reply .

[mrmacca]

she is now denying ever copying my picture and is now saying that it was me who asked her to do one for me

[Tigershark]

Have your attorney send her a letter, there was obviously some miscommunication Probably something you should have done proactively before it got to this point

[Box Brownie]

she is now denying ever copying my picture and is now saying that it was me who asked her to do one for me

Have your attorney send her a letter, there was obviously some miscommunication Probably something you should have done proactively before it got to this point

Dave

Again just my untutored view but if there is a clear chain of communications i.e. her stated intentions and your replies going to & fro........other than the "apparent" misunderstandings (???) the origins, use put to, thinking behind the statement of 'reference image' I am wondering where this is going.

So, where do you stand i.e. what do you want to happen? What is she saying she will now do? And depending on all the above have you yet consulted with a lawyer?

For her to make the statement you note above what in the comms do you feel could have prompted her to say that?

I return to my original thoughts that seeing your original image and her cross-stitch 'design' ~ this is no way looks like a hand "painted" interpretation i.e. using a ref image. A simple Google will reveal all sorts of software to turn an image into a pattern! And that I still have serious doubts on how she obtained some of her images?

How you handle this only you can decide, none of us are legally trained and can only 'voice' concerns as per "if I were in your shoes".

All the best with a satisfactory resolution but it does seem like she has never been challenged about how she actually makes use of images she requests as reference images!