Mis-sold image license

[The_Saint]

What is the name of your state (only U.S. law)? Arizona

Hi everyone.

I'm based in Arizona, the other company is based in New York.

An associate and I were going to start doing Adult coloring books. Each of us has our own business. On Sept 3rd she contacted a photo stock company asking for clarification on licenses. The company offers 2 licences, a standard and enhanced. One is substantially more expensive than the other and she asked if a standard license was sufficient for an adult coloring book. Support responded to her saying yes, a standard license would be fine for her needs. She relays this information to me saying she has confirmation and i proceed to purchase a standard license and locate and download 750 images and compile 2 books for market containing 125 images with intentions of using the other images for further books.

I contact support on an unrelated matter as i think someone else is violating a term of the licence and wanted confirmation so i know what i can and cannot do and the person responding mentions that this other person would need a enhanced license because its a coloring book. At this point i have already downloaded the images and compiled the 2 books.

This went against what i had been told by my associate and i told her what i had been told. She immediately gets on the phone to support and the person she spoke to assured her she could use the standard license for her needs. My associate was very clear with them about what she was doing and how she was using the image. Support told her they would document the conversation on her account. If they have actually done this i don't know and they may very well have removed it to cover their tracks since i have been in discussions with that very same rep since.

I wanted documentation of my own so i email them asking for clarification since i am getting different information from different people. The rep who my friend had spoke with on the phone was dealing with was dealing with my email. After 2 days she gets back to me saying she checked with her manager and i need an enhanced license.

To put the cost difference in perspective, my costs would have gone up from $200 to $8500 just for the images i had used so far and thats not counting the other images i haven't used yet.

I tried to resolve this issue with them amicably, but i have exhausted that avenue.

Had i not invested so much time into finding, downloading, and compiling the books i would just walk away. But somehow i don't think they should be able to profit from their mistake in this manner.

So, what do you think?

 

[quincy]

What is the name of your state (only U.S. law)? Arizona

Hi everyone.

I'm based in Arizona, the other company is based in New York.

An associate and I were going to start doing Adult coloring books. Each of us has our own business. On Sept 3rd she contacted a photo stock company asking for clarification on licenses. The company offers 2 licences, a standard and enhanced. One is substantially more expensive than the other and she asked if a standard license was sufficient for an adult coloring book. Support responded to her saying yes, a standard license would be fine for her needs. She relays this information to me saying she has confirmation and i proceed to purchase a standard license and locate and download 750 images and compile 2 books for market containing 125 images with intentions of using the other images for further books.

I contact support on an unrelated matter as i think someone else is violating a term of the licence and wanted confirmation so i know what i can and cannot do and the person responding mentions that this other person would need a enhanced license because its a coloring book. At this point i have already downloaded the images and compiled the 2 books.

This went against what i had been told by my associate and i told her what i had been told. She immediately gets on the phone to support and the person she spoke to assured her she could use the standard license for her needs. My associate was very clear with them about what she was doing and how she was using the image. Support told her they would document the conversation on her account. If they have actually done this i don't know and they may very well have removed it to cover their tracks since i have been in discussions with that very same rep since.

I wanted documentation of my own so i email them asking for clarification since i am getting different information from different people. The rep who my friend had spoke with on the phone was dealing with was dealing with my email. After 2 days she gets back to me saying she checked with her manager and i need an enhanced license.

To put the cost difference in perspective, my costs would have gone up from $200 to $8500 just for the images i had used so far and thats not counting the other images i haven't used yet.

I tried to resolve this issue with them amicably, but i have exhausted that avenue.

Had i not invested so much time into finding, downloading, and compiling the books i would just walk away. But somehow i don't think they should be able to profit from their mistake in this manner.

So, what do you think?

What do I think? I think that you need someone who understands the different types of licensing to read these licenses over to see what you need for your coloring book project.

It appears to me that your associate might not have communicated your wants and needs sufficiently. Commercial uses of photos will almost always require more than a standard use license.

I suggest you have the stock photo company licenses personally reviewed by a professional and go from there.

Here for a compare and contrast are links to two major stock photo companies and their licensing pages:
Getty Images: http://www.gettyimages.com/company/license-info
iStock Photos: http://www.istockphoto.com/legal/license-agreement

Good luck.

 

[The_Saint]

The license talks about books, and it talks about merchandise. It appears that adult coloring books fall under merchandise. As with most things, it could be interpreted in different ways. I did question this with my friend and said i thought it might need an enhanced license but she contacted the company and they said standard was fine.

My associate did relay the information correctly.....


Her email:
Hello,
I have a question about the Standard License. It seemed to say that the
image could be used in Print products up to 500,000 units. Is this true?
I am looking to potentially license some images for an adult coloring book I
intend to self publish. Would this be covered under the Standard License?
I saw a similar magazine called "Relax with Art" at the bookstore, and they
stated that all patterns within came from <company name>.
As a self publisher, my books are print on demand. If the first 500,000 are
covered under the Standard License, and if I then somehow became popular
enough to sell more, can the license be upgraded later.
Sorry for all the questions, just trying to understand my options.
Best regards



The response she got:

Thank you for contacting <company name>
Yes, you can use the Standard License and once the 500,000 prints is exceeding then you will need to upgrade to an Enhanced License. Our images are available for people around the world and it is possible that this magazine license the images from <company name>. Let me know if you have further questions.
Best



So, lets says for arguments sake that the terms are not exactly clear but you do need an enhanced license, but you get the misinformaiton above from 2 different employees, do you have a legal leg to stand on?

Does anyone know of a lawyer who would handle something like this so i can contact them and provide all the information needed to make an informed decision? Exactly what type of lawyer handles something like this?

 

[quincy]

The license talks about books, and it talks about merchandise. It appears that adult coloring books fall under merchandise. As with most things, it could be interpreted in different ways. I did question this with my friend and said i thought it might need an enhanced license but she contacted the company and they said standard was fine.

My associate did relay the information correctly.....


Her email:
Hello,
I have a question about the Standard License. It seemed to say that the
image could be used in Print products up to 500,000 units. Is this true?
I am looking to potentially license some images for an adult coloring book I
intend to self publish. Would this be covered under the Standard License?
I saw a similar magazine called "Relax with Art" at the bookstore, and they
stated that all patterns within came from <company name>.
As a self publisher, my books are print on demand. If the first 500,000 are
covered under the Standard License, and if I then somehow became popular
enough to sell more, can the license be upgraded later.
Sorry for all the questions, just trying to understand my options.
Best regards



The response she got:

Thank you for contacting <company name>
Yes, you can use the Standard License and once the 500,000 prints is exceeding then you will need to upgrade to an Enhanced License. Our images are available for people around the world and it is possible that this magazine license the images from <company name>. Let me know if you have further questions.
Best



So, lets says for arguments sake that the terms are not exactly clear but you do need an enhanced license, but you get the misinformaiton above from 2 different employees, do you have a legal leg to stand on?

Does anyone know of a lawyer who would handle something like this so i can contact them and provide all the information needed to make an informed decision? Exactly what type of lawyer handles something like this?

It is up to you to read the licenses and understand what they say.

I cannot explain the response your associate received.

I cannot tell you if you have a legal leg to stand on. If the stock photo company is unwilling to provide images under the license you want, however, I do not see that you have much to argue if the terms of the different types of licenses are explained clearly in print (if not explained well by the employees).

An IP attorney in your area can review the license agreements and how they are worded, and the email exchange and other exchanges between the company and you and your associate, and the attorney can also go over your coloring book plans and the photographs you chose for it. I have some question about your use of stock photos for an "adult" coloring book.

 

[justalayman]

What is the name of your state (only U.S. law)?

Had i not invested so much time into finding, downloading, and compiling the books i would just walk away. But somehow i don't think they should be able to profit from their mistake in this manner.

So, what do you think?

You are concerned about them profiting from what you believe is their mistake (which they wouldn't actually ) but you feel it's ok for you to profit from the mistake, whoever made it?



What you need to do is take the license you purchased to an attorney who can review the exact verbiage and advise you. Even if somebody told you in error you could use the cheaper license, what the actual license states will prevail and especially since you are not the person that asked about what license is needed, the owner of the images never actually told you anything other than you need an enhanced license and did so before you printed your books.


I find it very odd that you would inquire about some other persons license though and somehow believed their use was a violation of their license. How do you even know what the license the other party purchased? For all you know it could have been unique to them but in the end, what difference would it even make to you? The license in question is between that publisher and the owner of the images.

 

[The_Saint]

I have some question about your use of stock photos for an "adult" coloring book.

Adult coloring book as in coloring books for adults, not coloring books of a pornographic nature if that is what you are thinking.

 

[The_Saint]

You are concerned about them profiting from what you believe is their mistake (which they wouldn't actually ) but you feel it's ok for you to profit from the mistake, whoever made it?

Yes it is.

And yes they would profit. The contributor gets less than 1/2 the amount they charge. I made a proposition offering to buy a select few of the images (35) at just above the contributors payment. The contributor would have got paid, the stock photo company would have made a tiny profit and resolved this issue. I would have ended up paying several hundred dollars more for a fraction of the images but i thought that was a reasonable resolution.

I find it very odd that you would inquire about some other persons license though and somehow believed their use was a violation of their license. How do you even know what the license the other party purchased? For all you know it could have been unique to them but in the end, what difference would it even make to you? The license in question is between that publisher and the owner of the images.

Same license - standard, there is only 2 types available.

The information was provided to her and i made my purchase based on that. Thats why i am posting here, because i see that as being something that could be an issue. I understand this isn't a straight forward thing, hence i am looking for legal advice from someone qualified. I wasn't sure which type of lawyer handles stuff like this which is one reason i posted. But now i know i can locate one and consult with them to get accurate legal advice. I understand i may be SOL.

 

[quincy]

Adult coloring book as in coloring books for adults, not coloring books of a pornographic nature if that is what you are thinking.

Yes, that was what I was thinking (and it was bringing to mind all sorts of other legal issues that might need addressing). Thank you for clarifying for me, The_Saint.

 

[justalayman]

Yes it is.

And yes they would profit. The contributor gets less than 1/2 the amount they charge. I made a proposition offering to buy a select few of the images (35) at just above the contributors payment. The contributor would have got paid, the stock photo company would have made a tiny profit and resolved this issue. I would have ended up paying several hundred dollars more for a fraction of the images but i thought that was a reasonable resolution.




Same license - standard, there is only 2 types available.

The information was provided to her and i made my purchase based on that. Thats why i am posting here, because i see that as being something that could be an issue. I understand this isn't a straight forward thing, hence i am looking for legal advice from someone qualified. I wasn't sure which type of lawyer handles stuff like this which is one reason i posted. But now i know i can locate one and consult with them to get accurate legal advice. I understand i may be SOL.

They would not be profiting more than they would if you purchased the correct license so therefore they are not profiting from the mistake. They only want what they always charge. You want a individually negotiated license with terms of your own design. Not agreeing to those terms is not them profiting from the mistake.


Beyond that, there is no mistake in your situation. The only time anybody told YOU anything was when you were told you need an enhanced license for your project. Your friend might have an arguable position but not you. You cannot depend on what your friend was told and impose it on your situation. They made no inaccurate representations to you and you relying on what your friend was told does not obligate the licensor to you.

As to only 2 types of licenses; how do you know it wasn't a specifically negotiated license? Is that not exactly what you were attempting to do? And how do you know what type of license they purchased anyway? In the end it doesn't matter. It does not change your situation. What the other licensee does and what the licensor does is between them.

So what are you out because you believe you can rely on what your friend told you? You cannot force them to allow you to write a license with your terms and you cannot force them to allow you to act as if you purchased an enhanced license because you purchase a basic license and it doesn't cover your intended use. At most you might be able to rescind the purchase of the license (with you destroying any images you downloaded).