Sweet Eventide’s Infringement Casestudy & Resources to Protect Yourself

Loads of Ranunculus by Jessica Nichols of Sweet Eventide Photography

Sweet 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!

My 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.