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montysimmons
montysimmons, Patent Prosecutor
Category: Intellectual Property Law
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Experience:  Electrical Engineer, South Carolina Attorney, Member of US Patent Bar
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i used an image i found on google, flipped it,tweaked it and

Resolved Question:

i used an image i found on google, flipped it,tweaked it and used it to sell some products online. Now the owner of the image is trying to contact me asking if i had permission to use it. am i big trouble?
Submitted: 1 year ago.
Category: Intellectual Property Law
Expert:  retireddebra replied 1 year ago.
Thank you for your question.

Before I begin I want to explain a bit about how the site works.

It may be that I will find that I need to gather further information from you. As well, it's quite possible that you may feel the need to ask me additional questions for further clarification.Please do not worry that you will be charged additionally if I ask you questions or if you need to ask me questions. That is not at all how the site works.

As well, please understand that as a careful lawyer I will always give you an honest answer even if the answer is sometimes not what you were hoping for.

Finally, as we go through the process please do not feel rushed if I ask you a question. You are always free to take your time to gather more information before you post back. As well, please understand that even after you rate me the post will not lock and you could always come back for further clarification if you think of something a bit later on down the road.

Is the owner asking for payment?
Customer: replied 1 year ago.

I am a small wholesaler in brooklyn that buys deals for resale. I bought mattress protectors from a local guy and sold them on groupon.com which was online for 3 days only.


 


here is the link:


http://www.groupon.com/deals/gg-bed-bug-protector-mattress-encasement?c=all&p=10


 


We couldnt photograph the images in time so we scrambled and did google search looking for some generic image of a mattress being zippered closed. We found one in google images, not even leading to a company site, so we flipped the image and added a textured floor. Now groupon informed me that "protect a bed" contacted them asking where I got the image from, and if i had permission to use it because it is infringement.


 


 


realistically how serious is this, im just a small 1-2 person business.


 


 


Am I in very big trouble? what can they legally do? how much can they claim


 


I never spoke to the owner yet. I did not yet respond to them and would like to know what I should do next.

Expert:  retireddebra replied 1 year ago.
This is on the Canada law list.

Is this on the wrong list?

I can move it over.

Or, is the owner of the image in Canada?
Customer: replied 1 year ago.

i found this lawyer site on google. I need to speak with USA lawyer please.


Thank you

Expert:  retireddebra replied 1 year ago.
I will ask the site to move you to the correct list.
Expert:  montysimmons replied 1 year ago.
DISCLAIMER
The information provided on this website is general information, not individualized legal advice. Your use of this information is not intended to create, and does not create, an attorney-client relationship with the site or any associated attorney. This website is not an offer to represent you. Further, my comments are not an offer to practice in a jurisdiction, in which I am not admitted.

Are you in Huge trouble? I do not believe so.

What I would do is stop using the images ASAP and generate your own.


Under the Copyright Act, "Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work."

The use of preexisting contemporary images implicates three sections of the Copyright Act:

• the exclusive right to reproduce a work,
• the exclusive right to prepare derivative works, and
• the exclusive right to display a work publicly.

You can't do any of the above for a work protected by copyright. Modifying a copyrighted work is called a "derivative work" and such is typically not allowed by anyone but the copyright owner. There are exceptions but none seem useful here.

So changing the image a little does no help you.

Notice is not required to have a valid copyright.

To establish infringement, the copyright owner must prove:

(1) ownership of a valid copyright, and
(2) copying of constituent elements of the work that are original.

Sounds like (2) may be easy to prove but not sure about (1). They have to be able to prove (1).

If you get passed (1) the next step is to calculate damages.

First question, was the copyright registered? The answer has a large impact on damages. The two types of "damages" are statutory damages and actual damages.

Registered works get greater protection called Statutory Damages (and attorney fees), unregistered works do not (i.e. only actual damages).

Statutory damages: as low as $200 per infringement (innocent infringers - like you) to as high as $150,000 per violation for willfully infringing.

Such is why you need to stop using the image if you are still using the image as such use could now be said to be willful.

Actual damages become much more difficult to prove.

So I would consider:

(1) stop using the photograph ASAP;

(2) contacting the photograph owner and requesting the copyright registration number for the photograph;

(3) in the alternative, if he has no registration number, ask him to please prove ownership in the copyright; and

(4) asking owner what he/she wants to make the issue go away.

If the owner can prove he/she is owner of the picture but has not registered the copyright, just stop using the image. Unlikely they can justify a legal suit for the amount of damages your action might have caused.

If owner has registration of copyright, such is a more difficult question. You are likely an "innocent infringer" so I could see damages being as low as $200.

Hopefully the owner will be reasonable.

Please remember to rate my answer.













Expert:  BizIPEsq. replied 1 year ago.
What you have creative is called derivative work. Only the copyright holder has the right to create derivative work. Under certain circumstances if your work is also transformative in nature or if is falls under the doctrine of fair use then you can use the underlying copyrighted work without permission from the copyright holder.

Unfortunately, in your case you would not qualify for either. So here's what you can do:
1) If you are in Canada and assuming that the image was registered in the US then your exposure is lessened. First copyright law in Canada is a little bit different and second in order to sue you the copyright holder would have to go to Canada which would be quite expensive for them.

And even if you are sued in the US and plaintiff gets a judgment, unless you have property or own businesses in the US, there's not much the plaintiff can do with such a judgment.

2) Under recent changes to Canadian copyright law, statutory damages are much less than in the US so again the economic feasibility of being sued in Canada is much less than in the US.

Most likely Groupon was contacted by a US copyright firm that looks for easy targets to collect damages from. If you are in Canada you will not be an easy target.

Please rate my answer. Without your positive rating I do not get compensated. Good luck!
Expert:  replied 1 year ago.

I understood you are a "wholesaler in Brooklyn that buys deals for resale" and you requested a US Lawyer so I am not sure why the reference to Canadian copyright law by BizIPEsq.

If true, I would ignore that answer as it does not seem relevant.

If you need information please feel free to ask another question.

Also, please remember to give feedback to my answer.

Thanks.
montysimmons, Patent Prosecutor
Satisfied Customers: 234
Experience: Electrical Engineer, South Carolina Attorney, Member of US Patent Bar
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