if a company makes custom products and a customer sends in a copy righted image. Who

[Mshen]

If a company makes custom products and a customer sends in a copy righted image. Who is violating the copy right?
Or is the copy right even being violated?

I am in California.

 

[sandyclaus]

If a company makes custom products and a customer sends in a copy righted image. Who is violating the copy right?
Or is the copy right even being violated?

I am in California.

No one, unless the company makes the custom product and reproduces the image that the customer provided on that product. Then, it would be the COMPANY who is violating the copyright - because the COMPANY is the one who illegally reproduced the protected image.

 

[justalayman]

It doesn't remove the company from being liable for the infringement but it does provide for a defense of innocent infringement. If proven, that allows the court latitude in reducing the penalties.

 

[sandyclaus]

It doesn't remove the company from being liable for the infringement but it does provide for a defense of innocent infringement. If proven, that allows the court latitude in reducing the penalties.

So that would be a mitigating factor in assessing the appropriate penalty, but NOT a complete defense.

I suppose that would also assume that the company has a disclaimer stating that customers warrant that any customer submissions are their own personal property and not subject to any claim of ownership or trademark by anyone else...?

 

[justalayman]

sandyclaus;3091257]So that would be a mitigating factor in assessing the appropriate penalty, but NOT a complete defense.

It's not even a defense to the infringement. It simply allows the court to reduce the penalties.

I suppose that would also assume that the company has a disclaimer stating that customers warrant that any customer submissions are their own personal property and not subject to any claim of ownership or trademark by anyone else...?

I do not believe that would help. Many times in law, you simply cannot waive your liabilities and put them on another, even if that is the party that should bear all liability.

 

[quincy]

Copyright infringement is a strict liability offense. Innocent infringement is still infringement. A court can consider innocent infringement as a mitigating factor when awarding damages (or a court could potentially award no damages at all and just issue an injunction).

 

[Mshen]

Thank you for the responses! Is there anything I can do to prevent a lawsuit? I assume customers would ignore most disclaimers...

 

[LdiJ]

Thank you for the responses! Is there anything I can do to prevent a lawsuit? I assume customers would ignore most disclaimers...

I would like more information about what it is that you want to do. For example....if my granddaughter wanted a Little mermaid headboard for her bed, and I purchased a Little Mermaid poster and had a custom furniture make craft a headboard using the poster and laminating it onto the headboard, that is not a copywrite infringement at all.

However, if I took a little mermaid poster and had a T-shirt maker craft a stencil to put that image on a bunch of T-shirts that I was giving away at a fundraiser, that might very well be a copywrite infringement.

 

[Mshen]

I would like more information about what it is that you want to do. For example....if my granddaughter wanted a Little mermaid headboard for her bed, and I purchased a Little Mermaid poster and had a custom furniture make craft a headboard using the poster and laminating it onto the headboard, that is not a copywrite infringement at all.

However, if I took a little mermaid poster and had a T-shirt maker craft a stencil to put that image on a bunch of T-shirts that I was giving away at a fundraiser, that might very well be a copywrite infringement.

Well we make personalized gifts. Customers can send in images via email or our site, or they can send in photos by mail.

So it is entirely possible they take an image from Google and send it to us to make a product out of it.

And we do have distributors they are usually photographers and do own the rights to their image.

But we can't know. It would cost too much, at least I think it would, to make sure every image is not copyrighted.



Could we have a notice saying... "by submitting an image you have recieved permission by the copy right owner to use this image or you own the right to these images"?

 

[quincy]

Could we have a notice saying... "by submitting an image you have recieved permission by the copy right owner to use this image or you own the right to these images"?

Nothing you do can really prevent a lawsuit. The best you can do is avoid as much as possible the areas of greatest legal risk.

What you will need to best avoid an infringement lawsuit is a license from the copyright holders of any work you intend to duplicate on your products. A license should be structured to give you the specific rights you will need to duplicate the copyrighted material on your product.

In addition, if what is submitted is a photograph of a person, you not only need a license from whoever owns the rights in the photo (generally the photographer) but you also need a release signed by the person or persons pictured, so you don't run afoul of their publicity/privacy rights. For family photos, this is probably not going to be vital, but all you need is one litigious relative to create a legal headache for you, so it is recommended.

There are several businesses that operate in the way you intend your business to operate, and it wouldn't hurt for you to check some websites out online. Take a look at Shutterfly, for example. Shutterfly customizes products using photos that have been submitted by consumers. When ordering a customized product, the customer must agree to Shutterfly's terms and conditions through a "click" agreement. Read over their terms and conditions (www.shutterfly.com/help/terms) to get an idea of what you may find helpful for your business.

And then, once you become familiar with how others operate their similar businesses, you can better work on your own business plan (your releases, your terms and conditions, your disclaimer). I recommend you then have everything reviewed by a professional in your area (a business attorney may be best) to make sure you have dotted all i's and crossed all t's and that your business is as safe as it can be from any lawsuit.

It is also wise to have insurance enough to cover a lawsuit, should one arise despite your best efforts to avoid one.

Good luck.