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P. Simmons
P. Simmons, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 33299
Experience:  12+ yrs. of legal experience.
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What level of proof must I have to show that an employee of

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What level of proof must I have to show that an employee of Microsoft has taken one of my photographs and has identified it with his name and it is showing a copyright by Microsoft. My original photograph metadata shows it was taken on the date he is showing as his. Thank you. Diane Simpson
Thanks for the chance to help with this. I am an attorney with over 12 years experience. Hopefully I can help you with your legal question.

Ma'am I want to make sure I understand your question. Microsoft has taken one of your photos and is using in in their marketing material? Is that correct? If so have you advised them to remove ? If so what happened?
Customer: replied 3 years ago.

Just discovered the problem today. The photo can be found on Flicker and was placed there by someone (name on metadata) who says the copyright is held by Microsoft. I have not tried to contact Microsoft. Wanted to get a legal opinion before taking my next step.

Thank you

If you took the picture? And you have not transferred the right to the picture to another? Then you own the rights to the picture. This is basic copyright law in the US. Whomever creates the intellectual property (and and a picture is considered intellectual property) owns the rights to it. Period.

You could (if you were so inclined) apply for copyright protection. But that is not required to prove ownership. If you took the picture you own it.

Now...posting of Flicker does not sound like Microsoft is using this in their marketing. Frankly, it may be someone edited the metadata on the picture and put that information in there without the knowledge or permission of Microsoft. That would not be a violation of copyright law as far as Microsoft is concerned.

If Microsoft IS using this photo and claiming it belongs to them? You can write to them and demand they remove it...and if they refuse, you can sue them in federal court for violating your intellectual property rights

But it may be the better way to address is to notify Flickr about this violation. You can do that at this link

http://www.flickr.com/help/with/abuse/

If Flickr refuses to remove the photo, you can sue them in federal court to enforce your property rights...but typically they will grant the request to remove a stolen photo.

If you have to go to court what proof do you need?

You need to prove your case with a "preponderance of the evidence". This is the more likely than not standard...so it is not a high burden. If you took the photo and can prove you took it? THe court will rule in your favor
Customer: replied 3 years ago.

Your answer is excellent and I thank you for being so thorough with such a little bit of information. The link to Flicker was very helpful.


 


As a follow-up, I am concerned too about how he was able to even get the photo. Even though I do shoot stock, this photo has not been submitted let alone accepted. It concerns me that he might have been able to gain access to my computer. Heaven only knows why he would do such a thing.....I am a very little fish in a very big pond. Any thoughts?

Now that is a mystery...If you can show with metadata that this was you (that is, your camera when you had possession of it)? I would be concerned as well!

I personally use a firewall to prevent access to my home network. But a decent hacker can bypass that with some effort. If you know who this person is, you may want to confront them to see what they say...it may be you have a criminal case on your hands if someone you know stole your property.

And if you do not know them? Well....it still would be a crime to steal your property.

I suspect you may have a more difficult time convincing law enforcement to take the case if this is a person you do not know...if that is the case I would take steps to secure my electronic files...it may be your machine was compromised and a hacker had access


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Customer: replied 3 years ago.

i now have more information. my photo can be found on the windows 7 media center inside the sample pictures folder. it is the one of yellow tulips, one having a red stripe. the name of the man claiming it as his is david nadalin. he shows the copyright is held by the microsoft corporation. how does this improve my position. what should i consider as my next move. diane simpson

I want to make sure I understand...your picture...the one you took...this picture is included as part of the windows release? So if I were to purcahse this software, I would see your picture??
Customer: replied 3 years ago.

yes...if you went to the media center and viewed the sample photo folder.

I use mac...so do not have access to that. But if what you say is true? Microsoft used your photo, without permission.

That is a problem (for microsoft)

This is potentially a "big deal"...intellectual property law is clear on this matter...another person or company can not simply take your property and sell it to others as their own.

You really should consult a local attorney with experience in intellectual property law. Microsoft has sold this software literally millions of times...you may well be entitled to money for this infringement.

Customer: replied 3 years ago.

thank you. i know enough about corporate lawyers to know they are paid to protect their client and if the client happens to be microsoft, they fight extremely hard. i will take your suggestion, contact my local attorney and hope there is someone within aXXXXX wish me luck and again my thanks. diane

Ma'am I do wish you the best of luck. But it sounds like you may have a great case...if nothing else you may be able to negotiate a settlement that gets you compensation for your property.

Phil
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