Sweet Eventide’s Infringement Casestudy & Resources to Protect Yourself

Loads of Ranunculus by Jessica Nichols of Sweet Eventide PhotographySweet Eventide’s Loads of Ranunculus photograph shared with permission

Editor’s note: The lovely Jessica of Sweet Eventide started coming to our #OMHG chats recently and like always I visited her website to learn about the story behind the tweets. When I got there I immediately wanted her to visit us this month to share her struggle to get accountability from the big names profiting from her work. Jessica is a talented creative producing beautiful new work, a mother/wife, and a four times survivor of non-Hodgkins lymphoma. She deserves (as we all do) to be respected as an artist and supported not stolen from-I hope our community can play a role in getting her the support she needs.

In the summer of 2012, I found out about a large-scale infringement of my Loads of Ranunculus photograph by three major companies: fashion designer Chris Benz, Lancôme and Saks Fifth Avenue. The fashion calendar is always ahead of real time, which means I discovered the infringement almost one year after Benz premiered the fashion line at New York Fashion Week and several months after the line was available in stores.

I worked privately with my attorneys for four months to get information from all three companies in the hopes of settling the matter without going to litigation. Unfortunately, we did not get substantial responses and in November, I finally decided to go public with my story with a blog post containing photographic evidence of the infringing items.

http://sweeteventide.com/2012/11/14/chris-benzs-spring-2012-line/

Chris Benz used my photograph to make fabric from which he created several pieces for his Spring 2012 fashion line. He collaborated with other companies with the fabric as well, including a tote bag promotion with Lancôme that was sold exclusively at Saks, and sneakers designed with Alejandro Ingelmo. In addition to all of these products, Chris Benz, Saks and Lancôme used my photograph in advertisements on their Facebook pages, which reach anywhere from 11,000 to 3.7 million people. The infringement extends all the way to a glossy print advertising campaign that was sent out by Lancôme to promote the tote bag collaboration.

Unfortunately, despite coverage online, none of the infringers have responded to date. They have sent a loud and clear message that I can be ignored. I have to make a choice whether to pursue this in court, and force them to acknowledge me, but there are a lot of pros and cons to taking that action. Litigation is enormously expensive and time-consuming, and focusing on it would detract from my productivity in my business.

Until I make my decision, I have become passionate about sharing my story in order to encourage my fellow creatives to register their work with the U.S. Copyright Office. While it is true that you own your copyright the moment you create a work, you cannot avail yourself of the full protection of the law unless you register your copyright. In addition, you have a greater chance of finding pro bono legal representation should you ever need it in an infringement case.

Registering your copyright can be a tedious task and I have personally procrastinated on it in the past. However, it is very clear if your work is online, you need to protect yourself from companies who can and will infringe on your work for profitable gain, without sharing any of it with you. Putting a watermark on your work and uploading low-resolution images is not enough to protect you from infringement. It is easy to remove watermarks and powerful software exists to upsize images with no loss of quality.

It is recommended that you register your work with the U.S. Copyright Office every three months. Set aside one day per quarter for this important task. I’ve set reminders on my calendar for April 1, July 1, October 1 and January 2 (let’s be realistic). I have my reminders set to repeat annually with a one-week alert . It is best if you register your work before you publish it anywhere (online or offline), but please do not let that stop you from registering your work. It is time consuming and it costs money to register your work, but if you ever find yourself in my situation, you will be entitled to the full protection of U.S. Copyright laws. This includes statutory damages up to $150,000 and recovery of attorneys fees. Without registration, you are only entitled to infringing profits or loss of income directly related to the infringement.

Here are three links for you to learn more about copyright, registration and statutory damages.

http://www.copyright.gov/circs/circ01.pdf
http://www.copyright.gov/help/faq/faq-register.html
http://www.ipinbrief.com/ending-confusion-re-statutory-damages-i/

When you are ready, the U.S. Copyright Office has a wonderful tutorial to help you with the process of registering your copyrights and  information on bulk registering work that has already been published.

http://www.copyright.gov/eco/eco-tutorial.pdf

http://www.copyright.gov/fls/fl124.html

I do not have much hope for my own case unless I decide to proceed with litigation. Public pressure via social media could be effective but that also requires an investment of time and energy to manage. I am currently viewing my infringement case as an opportunity to educate others and practice living the mantra that “right action is taking place right now.” If you want to speak up about my case, I listed many ways in this post:

http://sweeteventide.com/2012/11/23/as-usual-no-response-from-chris-benz-et-al/

If you want to learn more about dealing with infringement come back tomorrow  for a step-by-step guide to dealing with infringement by Lela Barker and mark your calendar for Thursday when Jessica will join us to talk about copyright and ethics at our next #OMHG chat! Please share any questions you would like to see covered in our chat and your supportive cheers for Jessica in the comments!

Meet Jessica of Sweet Eventide!

sweeteventideOMHG headshotMy name is Jessica Nichols. I’m a fine art photographer living in Portland, OR with a focus on capturing the magic of the ordinary. My company Sweet Eventide Photography was established in 2009 and I sell prints and products on Etsy as well as license my work to other companies. My husband Jeff and I have one miracle child, Jaden who is about to turn 10. Jaden is our miracle because I was diagnosed in May 2000 with non-Hodgkins lymphoma when I was 29 years old. I have survived it four times now and it gives me the perspective I have on life which definitely gets expressed with my photography.

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  • http://twitter.com/ColleenAttara Colleen Attara

    Jessica…I am so inspired by your story. Not just to take action to protect my own work but also because of your sensibility regarding your time and focus and clarity on where you want your energy to go. Amazing that other artists and creatives can be so thoughtless (heartless) regarding another’s work.

    • http://twitter.com/SweetEventide Jessica Nichols

      Colleen, it hasn’t been easy to shift my energy but staying stuck in anger is definitely not the way to go. That was 2012, and it only hurt me and my business and by extension, my family. 2013 is all about helping others on this issue now. I admit that I still dream of justice every day. Thank you for caring!

  • Patty Palmer

    This is certainly a wake-up call for all creatives. I applaud you for stepping back and use your situation as an opportunity to educate others. Still, its gotta burn!
    Going forward is sometimes the most powerful step. Thanks for your information and links…I’m looking into them now.

    • http://twitter.com/SweetEventide Jessica Nichols

      Patty, I do hope it is a wake-up call for other creatives. We must balance the risk of sharing our work online with all of the benefits of doing so. You’re right, the situation burns but I refuse to let this infringement case define my work.

  • Chelsea Ward

    I’ve been pretty lax about getting my work all under copyright but this may be the push I need to get it done. I’ve got my fingers crossed for you Jessica! It’s disgusting that this sort of thing happens.

    • http://twitter.com/SweetEventide Jessica Nichols

      Chelsea, the ASMP reports that only about 1% of professional photographers register their work. You are not alone. I’ve got a bee in my bonnet about holding workshops dedicating a day to this task. I’m thinking good music, the company of fellow creatives, a beautiful space with nice light, maybe even wine/cheese/chocolate. Doesn’t it sound more fun already? 🙂

      • http://www.ohmyhandmade.com/ Jessika Hepburn

        I LOVE THIS IDEA! Just like talking about ethics here with other compassionate folks makes the sticky subjects easier to tackle, getting together with creatives to do the not-at-all-fun stuff over cupcakes and tea would make a sucky job sweet:)

        • http://twitter.com/SweetEventide Jessica Nichols

          This workshop idea is one of my main business goals for 2013! Stay tuned. 🙂

  • gaia

    Ugh this is so awful. I’m sorry you’re having to deal with this. Do you know about
    Designers and Illustrators Against Plagiarism? (Link below) I believe it was started by illustrator Gemma Correll after her work was ripped off. It might be another way to get the word out about your story.
    https://www.facebook.com/pages/Designers-and-Illustrators-Against-Plagiarism/190313407647321

    • http://twitter.com/SweetEventide Jessica Nichols

      Gaia, thank you for letting me know about Gemma’s Facebook page. I have now emailed her to see if she will share my story on her page. It makes me mad and sad to see so much evidence of corporate infringement.

      • gaia

        I know. It’s pretty depressing.

        • http://www.ohmyhandmade.com/ Jessika Hepburn

          I think this distinction between corporate infringement vs. copying by another small creative is a really important one. These are complex corporations with departments specifically dedicated to resolving legal issues with numerous employees they can assign to look into these problems. There is no excuse for them failing to take accountability or addressing valid concerns. They have all the resources whereas small entrepreneurs need to make major life sacrifices in order to take these cases on. And often entrepreneurs feel like they are fighting all alone against a huge beast of a machine. Instead of making you fight a big legal battle they should be owning up to this and working with you to make it right. I hope together the creative community can help apply pressure to create an environment where big business understands that we might be small but when we work together we are MIGHTY!

          • http://twitter.com/SweetEventide Jessica Nichols

            I couldn’t agree more about this distinction. I used to fret over my photos being blogged and pinned without credit. That is unfortunate but it’s nothing compared to this. Fighting huge corporations in court is a frightening prospect. In my case, Lancôme and Saks are $3 Billion dollar corporations EACH. They could bury me in the system for years and years if they wanted. Regardless of willful infringement, the law is clear about infringing profits being owed in cases like this. They could create a lot of goodwill by offering a fair settlement to me without the need for litigation. They don’t have to though without pressure. Independent artists are easily ignored due to the very reasons Jessika mentioned in her comment.

  • http://twitter.com/TrashN2Tees Jenelle Montilone

    Thank you Jessica for sharing your story with us, this is an amazing community and I have no doubt that we’ll come together to help support you however we can uniquely but also collectively. I respect your struggles and am so grateful for your determination to share this experience & educate others how to protect themselves and their creative genius.

    • http://twitter.com/SweetEventide Jessica Nichols

      Jenelle, thank you for your sympathy and compassion. It is very soothing and thinking I might save even one person from these headaches by sharing my story is the best feeling ever.

  • http://twitter.com/laurasimms Laura Simms

    Jessica, I remember hearing about your story on social media a few months ago. If you do want to litigate, or even create a large scale social campaign, I (and I think many, many others) would happily contribute to your cause via Kickstarter.

    • http://twitter.com/SweetEventide Jessica Nichols

      Laura, it feels great to know my story reached you somehow already. Many have suggested Kickstarter but they do not allow for this kind of fundraising. It must be for a project with a clear beginning and end.

      • http://twitter.com/laurasimms Laura Simms

        You could do it without Kickstarter–it’s just a tool. Wishing you the best no matter what you decide to do.

        • http://twitter.com/SweetEventide Jessica Nichols

          Laura, I’d really love to hear your ideas as I feel I’ve tried everything I know how to do social media wise. You can post here or via email — sweet dot eventide at yahoo dot com.

          • http://www.ohmyhandmade.com/ Jessika Hepburn

            Jessica-did you think of http://www.indiegogo.com/? They offer more flexibility with terms/times & have less restrictions on the type of campaign you can create. Another option would be to run a campaign like the community fundraiser http://www.ohmyhandmade.com/community-financing/ I just did where you sell a product or service to go directly to your fund. Anyone else have any creative ideas? I’ll keep this percolating on my mental back burner and see if anything else comes to me also:)

          • http://twitter.com/SweetEventide Jessica Nichols

            Jessika, I have read the Indiegogo FAQ and it doesn’t mention so I’ve sent in an email. Maybe I could use Indiegogo after all. It would be awesome to progress the fight a bit farther legally. I’m encouraged again. I’ll give some thought to the product/service idea as well. Thank you for the encouragement.

          • http://www.iamthelab.com/ I AM THE LAB

            I think a viral social media campaign with your picture and the infringing items might be great. I know that the LAB would be in.

          • http://twitter.com/SweetEventide Jessica Nichols

            Brett, I’m happy to hear that! How do I make a viral social media campaign work? Let’s chat. I did get word from IndieGoGo that I could use that platform to raise legal funds. I know the first obstacle would be producing a compelling video for the campaign.

          • http://www.luckybreakconsulting.com/ Lela Barker

            I would happily donate to the effort!

          • http://dirtsy.com/ Blaire

            Jessica, I

          • Alex

            Register a website preferably with a funny name like chrisbenzstolemyflowers.com

            Ask people to link to the site with the anchor text Chris Benz. It’ll show up on Google every time someone searches his name.

            Make a funny picture and turn it into a meme on http://www.quickmeme.com/make

            Post it on Reddit and Digg.

            Use trending hastags to get the word out.

            Link to the site on his and Lancome’s Wikipedia page.

          • Jenny Wilson

            I think a Change.org petition might be a great thing as well. If you could get bloggers/ photographers to spread the word, I think it would go a long way, and I think seeing the sheer number of people ‘on your side’ would help it get media attention and get those big companies to at least respond! If you do, please post about it… I’d love to sign.

          • http://www.facebook.com/behrens.j Jessika Behrens

            I know that Matt Inman of the Onion collected money for a lawsuit (the aim of the collection was to collect the sum the lawyer wanted and give it to charity) at Indiegogo. You could consider contacting him.

      • Blaire

        There are a lot of Kickstarter alternatives. Have you looked into http://www.indiegogo.com and http://www.gofundme.com ?

        • http://twitter.com/SweetEventide Jessica Nichols

          I am actively researching IndieGoGo. Thank you Blaire.

  • Guest

    Gaia, thank you for letting me know about Gemma’s Facebook page. I have now emailed her to see if she will share my story on her page. It makes me mad and sad to see so much evidence of corporate infringement.

    • http://twitter.com/SweetEventide Jessica Nichols

      This is from me being a newbie with in-line replies. I tried to delete and reply below Gaia’s comment but it showed up here also now. My apologies!

  • http://www.iamthelab.com/ I AM THE LAB

    This. Just. Blows. Me. Away.

    And for this reason I started the Design Respect initiative. I’m so saddened to hear that these infringers haven’t done the honorable thing to fix this. Thank you for the links.

    We must do more than create, we must protect what we create to the best of our ability, without losing the joy that moves us to make. SO glad to see that your joy remains.

    Learn more about Design Respect here: http://www.iamthelab.com/design-respect/

    • http://twitter.com/SweetEventide Jessica Nichols

      “We must do more than create.” YES! I love this. Thank you for your validating reaction to my story. I could never stop creating. I see beauty and magic everywhere I look and feel compelled to capture it in a photograph.

  • http://www.luckybreakconsulting.com/ Lela Barker

    Jessica, I’m terribly sorry to hear about your plight. I am rather accustomed to see this type of dilemma between creatives (and that’s tragic enough) but the fact that we’re dealing with mega corporations just adds an extra layer of horror. My OMH post today is very much along these lines… I’m happy to help you reach for a resolution in any way possible. Please keep us posted.

    • http://twitter.com/SweetEventide Jessica Nichols

      Lela, thank you for the offer. I appreciate it. I will comment separately on your post which was beyond wonderful and informative for everyone.

  • http://www.facebook.com/andiperullo Andi Perullo de Ledesma

    Oh wow I’m so outraged for you! I hope you get justice!!!

    • http://twitter.com/SweetEventide Jessica Nichols

      Thank you! Me too. 🙂

  • Michele

    Wow. The gall of these people is stunning. That they think they can ignore you out of existence is bloody infuriating. I don’t know if I would be so composed and adult about it, Jessica. Congratulations to you for turning this blatant theft into a teachable moment for us all. Hopefully some of us will actually take this to heart.

    • http://twitter.com/SweetEventide Jessica Nichols

      Michele, I have fumed plenty offline. Just ask my husband. =) It is my sincere hope that creatives will make a commitment to registering their copyrights.

  • Katie Fellows

    Eewww. It’s like that woman is wearing a gown stolen right off the rack. Would she still be smiling if she knew? Maybe.

  • GermanDolls

    This is horrendous. I’d like to share about your story on my blog, too. It’s just awful how these powerful corporations get away with such stuff. But I find copying on any level disgusting. I am a member of the NaturalKids Team on etsy. A little while ago one of our members found that another woman had started copying an item in her shop and was using our members very own photos to sell them in her Etsyshop. Upon further investigations we saw that she was doing this with many other items in her shop. I guess there are always people out there who have no creative bone and hence feel the need to “borrow” from others. I find this behaviour despicable. After lots of pressure from many member of our team the woman took the photos and listings down. But lateron we saw that she started a new Facebook page under a new name. I am sure she is still ripping of other artists. It’s very sad.

    • http://twitter.com/SweetEventide Jessica Nichols

      GermanDolls, that sounds so frustrating. Thank you for tweeting my post and let me know if I can help you with your blog post. 🙂

  • http://twitter.com/Linkouture Bev F.

    Wow, this just disgusts me. Unfortunately, I was just talking to a friend in the fashion industry and apparently some big-name designers will often just blatantly rip-off others. It’s so sad when people choose to violate others’ creativity. If you do start an Indigogo campaign, I would love to support it. Thank you for sharing your story, it is a good reminder for all us small creative business owners!

    • http://twitter.com/SweetEventide Jessica Nichols

      Bev, thank you. I have now seen some of these issues in the fashion industry since my case began. I am pursuing an IndieGoGo campaign and will keep you posted. Thank you in advance for your support!

  • Maxine Horn

    Jessica – you and your supporters might be interested to read an
    article on the subject of how Creators can better protect themselves and
    stand together. http://www.creativebarcode.com/newsitem?item=73

    In context to Chris Benz, Lancome and Saks – how about campaigning with a
    large enough crowd outside their store – and attract local TV – placards
    showing your work and the ripped off design applied to the goods being
    sold in Saks –

    Irony is if you left the store without paying for the product they stole (in part) from you they would have had you arrested for shop lifting – go figure!

    And you may wish to join us here at Creative Barcode who are working hard to
    stand up for the value of creativity workwide, protect designers work/
    IP on and offline and communicate ethics, etiquette and trust as the right way of doing business. http://www.creativebarcode.com

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