Someone took a picture of my view from my tasting room and is using this picture on a T shirt and selling it in there store...

Asked almost 2 years ago - Angwin, CA

I own a private vineyard/tasting room and i host clients by appointment only. I was in a bike shop last week and saw a biking shirt with advertising on it and the whole shirt was a picture of my exact view only seen from my 98 acre property. this picture must of come off our website or had been taken by a patron and now they are using it on a shirt to sell for profit... What are my rights?

Attorney answers (5)

  1. Maurice N Ross

    Pro

    Contributor Level 20

    6

    Lawyers agree

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    Answered . It is critical to find out whether the photograph was taken by a patron or was simply stolen from your web-site. If the photograph was stolen from your web-site, and assuming that you own the photograph as the photographer, or that the photographer has assigned the copyright to you, then you might have a claim for copyright infringement. However, unless the copyright owner registered this photograph with the copyright office within three months of its first publication (which might be the date it first appeared on your web-site), you lose your right to obtain statutory damages and attorneys fees, and you are left with a claim for actual damages (which is probably tiny). Absent a claim for statutory damages, it is probably not economically worthwhile to pursue a copyright claim such as this.

    If one of your patrons took the photograph, the patron would own the copyright in the photograph--not you. Further, the patron would have a strong argument that you impliedly consented to his taking of the photograph when you invited him to your tasting room. However there is a long-shot possibility that you could argue that the patron violated your right of publicity and engaged in unfair competition by trying to profit by associating his products (such as the biking shirt) with your famous private vineyard/tasting room.

    Of course, even if you would win a right of publicity/unfair competition claim, you will also have to prove that you suffered damages. One measure of damages might be the reasonable royalty that someone might pay for using an association with your business to promote his products. But if your "view" has never before been used for this purpose and you have generated no revenues from this, it will be hard to prove in court that you are entitled to a substantial percentage of sales. Indeed, the problem with this case would be your lack of injury and damages---if you want to pursue this you would need to work with a lawyer who is very creative in formulating damages theories---and hope that you get a judge who allows such creative theories to survive motion practice so that you can get the case to a jury.

    If you want to pursue this case, I suggest that you retain an experienced IP litigator in California---and I doubt that most experienced IP litigators will take a case like this on a contingency. Be prepared to invest substantial sums of money in this case---and your likelihood of a financial benefit are quite slim,

    One further point, however. I realize that in situations like this, your objective may not be purely financial---you may object to the use of your "view" because it tarnishes or "cheapens" the reputation of your business. If so, then it may be worthwhile for you to retain counsel to pursue claims for an injunction to stop future uses of your "view". You may wish your lawyer to send a cease and desist letter---sometimes a single well-written cease and desist letter does the job. As always, no lawyer can fully advise you as to the best course to follow without engaging in extensive meetings and discussions with you, reviewing the relevant facts and circumstances, and then giving you a choice of realistic options. It costs real money and time for a lawyer to take on a case like this---so be prepared to invest significantly if you want to pursue it.

  2. James Juo

    Contributor Level 16

    4

    Lawyers agree

    Answered . I agree with the prior answers, and write only to relay a story about a film, currently being shown at the Sundance File Festival, which contains footage shot on the sly at Disneyland. See http://www.latimes.com/entertainment/movies/mov.... The article quotes a law professor who opines that the copyright and trademark claims would be weak, but noted that the filmmakers could be liable for trespassing because they violated the terms of the passes sold to them by Disney.

    If the picture was taken from your website and you own the copyright to the picture (have you registered it with the Copyright Office?), then you might have a claim for copyright infringement. If the view is one associated with your business, then you also may have a trademark or unfair competition claim.

    If the picture was taken from a patron to whom you clearly conveyed a policy against unauthorized photographs for commercial purposes, then you may have a trespass claim against that patron.

    Either way, you need to retain an intellectual property attorney to investigate and evaluate the facts before taking any legal action.

    This answer is for informational purposes only. It is not intended as specific legal advice regarding your... more
  3. Daniel Nathan Ballard

    Contributor Level 20

    4

    Lawyers agree

    Answered . Q: "What are my rights?"
    R: As everyone else has already noted, if you or your company owns the copyright in the photograph then once you register that copyright [see copyright.gov ] you can, through your own attorney, force the tee shirt seller to stop selling the shirts and, perhaps, recover your attorneys' fees and, even less likely, money damages for the tee shirt seller's infringement.

    You seem upset that the photograph shows a landscape only visable from your property. Unless the photograph also shows something for which you enjoy an expectation of privacy, however, there is nothing unlawful about publishing that photograph [assuming it was taken by the person publishing it]. Your "view" of nature is not yours. What is yours is the right to exclude others from accessing your property. If you permit such access and do not condition that access on the visitor's promise NOT to take photographs [as is common, for example, at professional sporting events] then a person may lawfully take photographs of non-private things in plain view and do with those photographs whatever they chose.

    Why not simply speak with the tee shirt seller about adding a line on the shirt that identifies your vineyard?

    The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and... more
  4. Frank A. Natoli

    Pro

    Contributor Level 20

    5

    Lawyers agree

    Answered . Hi,

    To be clear, you cannot claim any ownership of your view (I mean more specifically your natural landscape). If I was a legal guest on your property and took pictures of the general landscape I own those images and I am free to do whatever I please with them.

    If, however, your facility was clearly visible this may change things.

    That said, if you believe this was your image from your own website (meaning you took it or have the rights to it) then perhaps you have a copyright infringement here.

    I will assume that this image was not properly registered with the US Copyright Office, which will likely greatly mitigate any damage you could recover, but each case is different.

    You will, of course, have to show that the image was your image and not taken by someone else. There are ways to do this, but frankly making a legal case out of this may be far from worth it. This, like everything else, depends on the facts.

    I will link you to some general copyright info below. Most of us here offer a free phone consult so you should consult an IP lawyer to explore all your options.

    Best regards,
    Frank
    Natoli-Lapin, LLC
    (see Disclaimer)

    The law firm of Natoli-Lapin, LLC (Home of Lantern Legal Services) offers our flat-rate legal services in the... more
  5. Constantine D. Buzunis

    Contributor Level 17

    1

    Lawyer agrees

    Answered . i agree with the other attorneys.

    Legal disclaimer:This message does not constitute legal advice and does not create an attorney-client relationship.... more

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