Dear Bonnie,
I design beaded and hand-woven jewelry and I often post photos of my products online since social media plays a large role in building my business. Recently, I discovered that an image of my bracelets (posted on Flickr with all rights reserved) was being used by the clothing brand Delia's on a set of fingernail stickers sold online and possibly in stores. The image was used without my knowledge or permission. I've included a photograph highlighting the exact crops of my work that were used to make the stickers, as well as the Delia's product page.
I have seen stories similar to mine, and I'm wondering, what is the best course of action for an independent artist when facing this type of situation with a large brand? Is there any way to persuade Delia's to properly acknowledge and compensate me for my intellectual property?
Thank you,
Grace Hamann
Click the image to zoom in.
Dear Grace,
Before you even think about calling a lawyer, the first thing you have to consider is that the offending company may not actually have a clue that your images were stolen. So, scenario number 1 is that someone innocently used your photo to comp up an idea, only to have their boss love it and quickly move it up the chain of command until the stickers were produced. The original perpetrator may not even know the actual fate of what they pitched. Given that possibility (and really no matter what), your first step is to get in touch with Delia’s. Let them know what happened and give them the benefit of the doubt that they will want to do the right thing. The truly right thing, of course, would have been to ask you BEFORE using your work, but not knowing and then paying you what they would have paid you in the first place is almost as good.
Scenario number 2 is that they didn’t know they were stealing your images, but now that you've told them, they just don’t care. On Flickr, your images are by default protected under the legal catch-all “All rights reserved.” This is in contrast to Facebook, Instagram, Pinterest, Tumblr, etc., which all have somewhat murky privacy policies that mean images you post could be fair game (to be dumbass clear, this means these sites or apps could potentially sell photos you post for commercial use). Since I assume you also share photos of your designs on these social media sites, you could run into some issues given the varying levels of image protection that each site's privacy policy provides. Another potential problem here is that since you encourage people to repost your images, it's possible that they have been reposted on one of the less protected sites. This makes it much more difficult to keep track of how your images are being used and therefore more challenging to safeguard the rights to the original photo. Unfortunately, Delia’s might be able to use this information as a defense for their actions. However, even without any official copyright, in the U.S., your photos are automatically copyright protected by law as soon as you publish them. So, while it would be a flawed argument on Delia's part, it's worth anticipating this possible response.
Scenario number 3 is that they DID know that the images were just found online and they didn’t care then and don't care now. But before you consider the possibility of taking legal action, think about whether it's really in your best interest. What would you have been paid had they come to you first? $1000 - $2000? That’s two to four hours of a lawyer's time. The sad truth is that it really just won’t be worth it to fight.
Your best case scenario is that someone from Delia’s sees this and reaches out to you because they are embarrassed by their company’s actions and want to make it up to you and, by proxy, all the other creative entrepreneurs who have been wronged over the years. (Delia’s, I’m talking to YOU!) When companies behave badly, they lose customers and it's very difficult to get them back after a brand’s image has been tarnished (see Lululemon). It will certainly cost them a lot more than $1000. For Delia's — a fun, happy company targeting young women — it seems particularly harmful and very much against their brand image to have a claim of creative copyright infringement floating over their heads.
Artists and designers like you who are willing to share your stories (see Modern Dog v. Target and Disney, and countless others) can help shame companies into realizing that doing the right thing is always more cost effective than taking the short cut. Big companies need to learn that they can no longer steal from the little guy without getting caught.
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