Facebook Copyright and Third Parties

A "friend" took a photo of my daughter and turned it into a painting. Then she sold it. My daughter is a minor and the photo is displayed on both my website and blog, but was also briefly on Facebook. I'm not sure where she got the photo from, but since she's sold the painting her and I are in quite the dispute. I'm livid to me honest. Absolutley livid. The painting is truly beauitful and looks identical to my photograph. The painting is even named after my daughter.

I've been looking into the copyright law in Canada and I see (and believe) that she has definitely violated Canadian Copyright Law. She's saying she's in the right because I put it on Facebook. She says that by posting it on FB I have given up the rights to the photo.

I have found this in a quick google search:
"You retain the copyright to your content. When youupload your content you grant us a license to use and displayyour content. For more information please visit our Terms ofUse, which contain a link to our Copyright Policy and otherimportant information about your privileges and responsibilitiesas a Facebook user.All very nice...but, when you dig into the Terms and Conditions, they say:When you post User Content to the Site, you authorize anddirect us to make such copies thereof as we deem necessary inorder to facilitate the posting and storage of the User Contenton the Site. By posting User Content to any part of the Site, youautomatically grant, and you represent and warrant that youhave the right to grant, to the Company an irrevocable,perpetual, non-exclusive, transferable, fully paid, worldwidelicense (with the right to sublicense) to use, copy, publiclyperform, publicly display, reformat, translate, excerpt (inwhole or in part) and distribute such User Content for anypurpose on or in connection with the Site or the promotionthereof, to prepare derivative works of, or incorporate intoother works, such User Content, and to grant and authorizesublicenses of the foregoing.
"

I don't see anywhere that any third parties can come in a take your photo and make a copy of it for profit. I only see that FB can use the photo how they choose.

I really don't want money from her. I just don't want this painting floating around of my daughter, taken from my photo that I did not give permission for her to use.

If ANYONE has any sort of links or resources to help me fight this I would greatly appreciate it.

Oh and I just found this:

"Intellectual Property
Do I retain the copyright and other legal rights to material I upload to Facebook?
Yes, you retain the copyright to your content. When you upload your content, you grant us a license to use and display that content. For more information please visit our Statement of Rights and Responsibilities, which contain information about intellectual property, as well as your privileges and responsibilities as a Facebook user."

Seriously, get a lawyer, nobody can help you here. Best they will be able to do is one or both of:
fuel your fears
best guess answers

Concerning all legal matters, especially if concerning delicate matters- go find a professional who is local who can give you - real, serious answers. No bull****, no "I think this, you should buy this, go to this guy in Atlanta, or wait your canadian...go to ontario, they have everything there." You're probably going to hate me for this snarky response but really

Once again, ditto what Karl says. Asking a bunch of people you will probably never meet, you don't really know complex legal advice is a big waste of time. Find a copyright lawyer in the province you live and see what they say.

I am a little confused here. In the beginning you said a "friend" took the photo. Later you said the painting looked just like your photo.

+1 on talking to an attorney. Here, copyright law (from what I understand) gives photogs different privileges for commercial versus non-commercial work. They don't define commercial work so you end up with almost state by state definitions.

Let us know how this turns out.

lettershop wrote in post #10891534
I am a little confused here. In the beginning you said a "friend" took the photo. Later you said the painting looked just like your photo.

\

I think he's using the term 'took' as in "snagged it from Facebook or a blog" -- as opposed to "used a camera to make a picture".

I'm interested in how it turns out, but not really interested in the pages of amateur legal advice this thread will generate.

Yeah, even those of us who might know quite a bit about copyright, and maybe even Canadian copyright, you are still talking about a pretty unique situation here. How close is the painting to the original? Does she still have the right to sell the canvas, even if she did effectively just copy the image? You need to consult a lawyer who can get you legal answers, not opinions and perspectives.

The Canadian twist on this will be the contract by which the original photograph was taken.

If this was a US situation, I'd say the photographer was within his rights to what he has done with the photograph, unless the issue involves child pornography. This has been hashed out thoroughly in US courts.

But in Canada, the photographer may not have owned the copyright in the first place, which makes a very big difference (and Canadian privacy law may differ substantially as well.

RDKirk wrote in post #10894748
The Canadian twist on this will be the contract by which the original photograph was taken.

If this was a US situation, I'd say the photographer was within his rights to what he has done with the photograph, unless the issue involves child pornography. This has been hashed out thoroughly in US courts.

But in Canada, the photographer may not have owned the copyright in the first place, which makes a very big difference (and Canadian privacy law may differ substantially as well.

no way. No difference at all in this case. OP took a picture of her own daughter, how could she not own the copyright to it? What privacy law did she break by taking a picture of her own child? nonsense and bushwah.

spiralspirit wrote in post #10896180
no way. No difference at all in this case. OP took a picture of her own daughter, how could she not own the copyright to it? What privacy law did she break by taking a picture of her own child? nonsense and bushwah.

The OP did not take the picture. The OP said:

In Canada, the commissioner of the work automatically owns the copyright, not the author, unless there is a written agreement otherwise. In the US, it's the opposite--the author owns the copyright unless there is a written agreement otherwise.

If the "friend" photographed the child and then painted a portrait, that's exactly what most portrait painters do. Stop thinking photography and start thinking "art."

In the US, the author not only owns copyright for the work, but because it's a painted portrait and directly sold as such, its sale is automatically classified as "non-commercial" by US courts, which frees it from model release and privacy restrictions as well. The only remaining issue would be if it portrayed lewd or lascivious activity by a minor.

RDKirk wrote in post #10896409
The OP did not take the picture.

No no no, we covered this.

Took as in "right-click, save-as," not took as in photographed.

The OP DID take the original photo. Re-read the original post RD. Even if it wasn't clear from the first paragraph, later the OP says "...is identical to MY photograph."

I have some experience re: Canadian copyright law for a book I wrote - not re: photography. If you want to pursue this matter, I would recommend a lawyer. Be prepared that it may get very expensive - very quickly. For my book, a small cease and desist order for unauthorized use of content cost many thousands... luckily my publisher paid.

I think this sitesums up Canadian copyright laws re: photography quite well.

I am not on Facebook, but I remember reading earlier this year that once a photo is posted on Facebook, there is some broad and sweeping waiver that Facebook 'owns' the rights to the photo, and by having the photo posted on Facebook, the photo has now entered the public domain? I may be wrong... just wondering?

Good luck to the OP.

This is why I watermark in the center and re-size to 720p on the longest size prior to uploading photos to FB. You are not the only one I've heard such theft. Usually from a friend. Not FB friend, but long time friends in real life. Get FastStone Photo Resizer!

IMAGE IS A REDIRECT OR MISSING! Byte size: ZERO | Content warning: NOT AN IMAGE