My first experience of a copyright violation
It all started with a pamphlet which was handed over to me in a shopping mall by a young lady managing a stall selling high end kitchenware made and sold by an international brand based out of US . It was around Diwali and this company was targeting customers to buy the products for the purpose of gifting. Casually I put the pamphlet in one of the shopping bag carried by me. On reaching home,while browsing through the flyer saw a photograph of Indian sweets placed next to products which looked very familiar. It was surely a photograph taken by me recently and was shared on Flickr-a photo sharing website.The accompanying text with the photograph on Flickr clearly mentioned that the photograph is copyrighted. Since I had been associated with the company for shooting products for their quarterly catalogues,my first reaction was-How can they do it ? The company which spends quite a large amount on making and distributing catalogues to its Direct Marketing Associates,cannot be involved in a petty theft. It actually is a theft,my image was stolen from the Internet .
It was in the year 2008,Facebook was not very old,there were not many photography groups unlike present times. I posted this matter on one of the groups which was quite an active one with lot of professional photographer as members.
Sue them’, ‘Take strong legal action’ , ‘ask for six figure compensation’ were a few comments received on the post which give some moral support to pursue the matter seriously .
Armed with the moral support of the fellow photographers, I sent a mail to the company on the email id listed on the website of the company . There was no response for many days,realised that replies to the mail sent to ‘contact@……’ or ‘info@…..’ are totally discretionary and will depend on what kind of information the company wants to share with you. Because of my old association with the company ,I was able to get the email ids of some senior employees-the people involved in the decision making. One lesson learnt here was that sending mail to the id mentioned on the website is sheer waste of time, six degrees of separation theory always come handy,spread the word around and the connection will be made.
There was no reply to the mails which I sent to some senior people in the organisation but I received a call from an advertisement agency based in Mumbai offering apology for using my photograph without permission in the flyer.He was the owner of the agency and put the blame on his designer for committing this faux pas(one more lesson learnt here,it is always the junior most employee in the company who is responsible for all the mistake committed by the organisation). He offered a princely sum of Rs 3500/- for the unauthorised usage. The amount was arrived at after calculating the size of theft(use) in the pamphlet- 2 inches X 2 inches. Found it quite funny since the gentleman on phone was calculating the theft in terms of the size of final usage. Since I had a ‘six figure compensation ‘ on my mind,the offer was too less to even consider.
Updated some fellow photographers with this development and every one had the same suggestion- TAKE LEGAL ACTION Before knocking the doors of judiciary,I sent another mail threatening a legal action against the company if I am not compensated for the copyright violation,which I realised is actually a criminal offence under Indian Copyright Act 1957. This time I received a formal and intimidating mail from the legal department of the company. The mail contained some heavy,difficult to comprehend legal terminology,it was kind of threatening. Basically they washed their hands off the whole affair and put all the blame on the advertising agency. They warned me of legal consequences if I persisted with the matter and involved them in any kind of legal proceedings.
The pamphlet did not mention the name of any advertising agency and it was the name of the company which was all over. The company not the advertising agency benefited directly by distributing the flyer. Also,it is a fact that an advertising agency do not go ahead with printing till the time approval of art work is received from the client. So it was just a temporary shifting of blame,ultimately it was the responsibility of the company. In the meantime,someone from the legal department was in constant touch with me on telephone for reaching a compromise. I always asked them to communicate their offer of compensation through email but it never happened. Verbally they were trying to negotiate with me but through mails they were not changing their stand on the violation.
Ultimately I decided to take the legal recourse and consulted a lawyer friend who was kind enough to send a legal notice to the company intimating about the criminal offence. The legal notice was made out against the company and its directors. This did not change the situation and in turn the company sent a reply maintaining the stand they took and threatened me with legal action against me for bringing disrepute to the company.
This process of sending mails,legal notice etc took almost 3 months and at this juncture my lawyer friend suggested that I should file a criminal complaint with the IPR (Intellectual Property Rights) Section of Delhi Police,which was located in Qutub Institutional Area,New Delhi. Filing of case in the court will be an extremely lengthy and time consuming process,he mentioned. He drafted a criminal complaint against the company and its Directors and asked me to attach all the necessary documents( the screenshot of website from where the photograph was stolen etc) and deliver it personally at the IPR Cell.
The process of filing the complaint was quite simple,the dealing person received all the documents related to my complaint,entered the details in a register and noted the entry number on the photocopy of the complaint which was for acknowledgment purpose.
Next 4- 5 months were quite silent,in between I sent a reminder to the IPR Cell mentioning the complaint number through speed post. All this time,there was no communication between me and the company. And then one day,I received a call from IPR cell asking me to come and explain the details of my complaint. I went and met the Investigating Officer (IO) who asked some technical questions about the photograph,about Flickr,creating account on Flickr and most importantly asked about my claim of ownership. I told him about RAW format,difference between high resolution and low resolution photographs. He recorded whatever I mentioned and made me sign on the paper on which he was noting the details.
There was silence again for next 2-3 months and again I received a call to meet the IO. During this time, they had called the representatives of the company to file their response. It seems that a battery of lawyers met the IO on behalf of the company and the maintained the same stand-the fault lies with the advertising agency. Meanwhile the company also took a ‘confessional statement ‘ from the owner of the agency which was filed in their response. The IO explained the whole situation and asked some more details on ownership details of the photograph. He sent a notice to the advertising agency also which was a bit disappointing for me as the matter was getting diluted at this level.
A bit frustrated,I wrote a mail to the CEO of the company based in U.S. where the Headquarter is situated. It is not difficult to get the mail Id of the senior most person in any organisation if you know the name. A simple google search will reveal the name and in most the the organisations the mail ids allocation is very basic. Suppose I am the CEO of a company called RD photography,in all probability my mail id will be email@example.com or firstname.lastname@example.org. So I sent a mail to both the IDs and promptly received a reply from one ID assuring me that he will look into the matter. After 2 days I received another reply from the CEO stating that since I am already pursuing the matter with local authorities,he will not like to have further communication with me.
When it looked like that the things are back to square again,I received another invite from IO to throw some more light on my complaint, Another 2 months were over by this time and the advertising agency had not bothered to reply to the notice sent to them. The company ,in order to support the claim that the advertisement agency is to be blamed,provided an invoice which mentioned ‘Touching up of Photograph’. The IO was curious to know what ‘touching up’ meant as the amount was in five figures . I explained that basically the agency guys downloaded the photograph,made some changes in the photograph to suit the design of the flyer. Then I further explained that this design must have been sent to the company for approval and the company was aware that this image is used after touching up. And since the invoice did not mention purchase of photograph,it just mentioned touching up,the photograph was used without paying any consideration. The IO noted this and sent another notice to the company asking for their version of ‘touching up’
It was calm again for a couple of months but it seems something was brewing. It was a call from the new IO (previous one was transferred ) informing me that he is sharing my number with the Lawyers of the company who are interested in settlement. It was like a shot in the arm for me,last few months were taxing,pursuing the case, I was also keen on bringing the matter to a close,so a compromise seemed like the only logical solution.
It was just a matter of few days after this. They paid me half of the ‘six figure amount’ I had asked for,much more than the initial offer by the advertising agency and also more than the amount the company offered on phone while negotiating with me. This all started in the year 2008 and it is almost 7 years now.
During this time many more of my photographs have been stolen and used without my knowledge or consent by leading newspapers,magazines,travel websites etc. And I have been able to get compensation from most of the violators .
From the experience above,now I try to keep things simple and follow the following steps:
1. Immediately intimate about the copyright violation at the mail id mentioned on the website of the violator clearly mentioning that it is a criminal offence.
2. Use the social media to publicise and connect to the right person in the organisation (Facebook and Twitter work perfectly well). In all cases I have been able to get the details of senior people in the organisation.
3. Write to these senior people informing them about the violation and seeking a solution to resolve the matter
4. Most of the time,matter is resolved at this stage..the standard replies are: our employee did it,we normally pay Rs 500/ for the image but will pay Rs 1500/- as a special case. I don’t agree to these submissions and quote a reasonable amount ( definitely not six figures) as compensation for the unauthorised use.
5. If this does not work,I threaten them with filing a criminal complaint with the IPR Cell of Local Police. These companies have strong legal departments and serving legal notice does not affect them. It is a matter of filing another response in routine . But a threat of criminal complaint makes them think twice as it is a non-bailable offence and if the complaint is proved to be genuine,the directors or senior employees will have to appear in the court to seek bail and this is not easy-money and time both will have to be spent. So their ‘strong’ legal department suggests a settlement.
A few things to be taken care before taking any action for copyright violation
1. Ownership of the photograph: you should be in a position to prove that the photograph was taken by you. The RAW image,unedited JPEG if don’t have RAW, EXIF Data ,MetaData ( in some cameras you can feed the copyright information which shows in the metadata)
2. Exclusivity of the photograph: there is a possibility that the photograph was taken during a photo walk or any other place where many other photographers were present. They might have similar frames,not exact. It will be difficult to prove ownership,not impossible but will need more efforts
3. Keep the compensation amount reasonable. An exorbitant amount( others will suggest) will delay the whole process of settlement. But once you decide on a figure,which you feel is reasonable,stick to it. No further negotiations.
4. Patience is the key here. The replies to your mails may not be prompt. There is a possibility of no reply also but once the violation has been brought to the decision makers,some action will definitely be taken . A few reminders will keep the issue alive.
Well,after writing the post,searched the internet with “Chhole Bhature” & “Makki ki Roti”..found a number of websites/blogs using my photographs,obviously without my knowledge and permission. Time for some action…
© All Rights Reserved Ravi Dhingra