Received Cease & Desist for images using Music Artist - advice needed

[mdrak2011]

I thought I had posted this yesterday but it disappeared for some reason

Long story short, I sell products online that contain designs/artwork/etc. I'm very new to business so I'll admit that I completely misunderstood the law regarding images. For the longest time, I was told that I can use parts of someone elses image as long as it is modified greatly. Recently, I received a cease and desist letter from a music artist's lawyer stating that I didn't have permission to sell my product that contained his picture. They attached the webpage that contained the image. A graphic designer that I found on the internet made the design for me....he basically found an image of the artist, and added a lot of graphics to it.

In the letter, they ask how many units I've sold, how much money in total I received for them, and my source of where I got the item (or if I made the product myself). I responded to them through email letting them know that I removed the item and will no longer offer any similar items. I also mentioned that my images are made from graphic artists that I found online. I didn't answer their other questions regarding my sales, thinking they would be satisfied with me just removing the item from the internet. I was wrong...they responded stating, "We cannot accept your word that you didn't create the images yourself without any proof. We will need to know the number you sold, and all communication between you and the graphic designer including any invoices, money transfers, and emails."

I know things like this are a serious matter...but am I obligated to give them all communication between me and the designer? I definitely want to protect myself but I honestly don't want this person to get in trouble over the $70 I made on these 10 items that I sold over 2 years.

I'd truly appreciate any advice on how to handle this matter. If I had the money, I'd hire an attorney but it's unfortunately not an option right now.

 

[FlyingRon]

You were told WRONG. There is no amount of modification that allows you to steal other's copyrighted work.

You can given them the information that they are asking for so you can negotiate a settlement for your infringement, or you can deal with them in civil court (in which they will almost certainly subpoena / depose you for that information).

 

[quincy]

... I was told that I can use parts of someone elses image as long as it is modified greatly. Recently, I received a cease and desist letter from a music artist's lawyer stating that I didn't have permission .... [artist I hired] basically found an image of the artist, and added a lot of graphics to it.

In the letter, they ask how many units I've sold, how much money in total I received for them, and my source of where I got the item (or if I made the product myself). I responded to them through email letting them know that I removed the item and will no longer offer any similar items. I also mentioned that my images are made from graphic artists that I found online. I didn't answer their other questions regarding my sales, thinking they would be satisfied with me just removing the item from the internet. I was wrong...they responded stating, "We cannot accept your word that you didn't create the images yourself without any proof. We will need to know the number you sold, and all communication between you and the graphic designer including any invoices, money transfers, and emails."

I know things like this are a serious matter...but am I obligated to give them all communication between me and the designer? I definitely want to protect myself but I honestly don't want this person to get in trouble over the $70 I made on these 10 items that I sold over 2 years.

I'd truly appreciate any advice on how to handle this matter. If I had the money, I'd hire an attorney but it's unfortunately not an option right now.

I am not so sure what you describe is as clear-cut as FlyingRon says.

"Appropriation artists" will take bits and pieces from the copyrighted works of others and use these bits and pieces to create their own works. Sometimes the appropriation artists are found to have infringed on the original copyrighted works by creating "derivatives" of the originals (and creating derivatives is an exclusive right of the copyright owner). But sometimes the appropriation artists are found to have made a fair use of the original copyrighted works by "transforming" the original .

It is not always easy to determine if a new work that uses another's material is a derivative or transformative.

A derivative work is based on preexisting material and, depending on how much of an original copyrighted work is used for the new work, permission from the copyright holder will be needed or the new work will be infringing on the rights of the copyright holder. An example of a derivative work would be a translation of an entire book written in English into another language.

A transformative work is also based on preexisting material but new expression or meaning has been added to the original work, or new value has been added to the original, making the use of the original material a fair, non-infringing use. An example of a transformative work would be a parody. Courts looks at several factors to decide whether the new work comments on the original and/or there is justification for the new work using the original work.

Below are the names of some cases to look at (when I have the opportunity I will provide better cites, and links to the court decisions):

Dennis Morris v. Thierry Guetta (use of Morris' copyrighted black and white photo in Guetta's collages)
Patrick Cariou v. Richard Prince (Prince used Cariou's photos for collages and paintings)
Andrea Blanch v. Richard Koons (Koons used portion of Blanch photo in a collage)
Rogers v. Koons (Koons used Rogers photo to create sculpture)

I really recommend you find the funds necessary to have an IP attorney in your area personally review the graphic artist's work that led to you receiving the notice of infringement ("publicity rights" could be an issue with the artist's work, too). Have the attorney compare the new work(s) created by your graphic artist to the original work. The attorney should also look over any contract you have with the graphic artist which may release you from liability - not that you can't be sued by the original copyright holder if the work is indeed infringing, but you might be able to turn around and sue the graphic artist (again, depending on contract terms you had with the graphic artist).

You were smart to remove the items that are said to be infringing (for the time being at least) but you would also be smart to seek advice from the IP attorney before providing any information to the copyright holder claiming infringement. You could compile the requested information in advance for your attorney to review but I would not disclose this information unless or until your attorney recommends disclosure.

The expense of the attorney may seem too much to handle but if you are sued for infringement, the damages that can be awarded the copyright holder can be extremely high (from $750 to $30,000 per infringement, and possibly even up to $150,000 per infringement).

Good luck.


(I didn't notice your state name. Are you located in the US? If so, what state?)

 

[quincy]

First, mdrak2011, your state name is important if you want any information on publicity rights, which could be an issue with your graphic artist using the image of the musician. Publicity rights vary by state (and by country - so if you are not in the US, that is important to know, too).

The image of the musician that your graphic artist used would also be (more than likely) protected under copyright laws - and it is the copyright in the image that appears to be what the attorney has notified you about.

Here are links to the appropriation artist cases that I mentioned previously, but the first link is to an article published by Art in America magazine with commentary on the 2014 settlement in the Cariou v. Prince case.

Art in America: http://www.artinamericamagazine.com/news-features/news/landmark-copyright-lawsuit-cariou-v-prince-is-settled/

Cariou v. Prince: http://cyber.law.harvard.edu/people/tfisher/IP/2013_Cariou.pdf

Morris v. Guetta: http://copyright.gov:8081/fair-use/summaries/morris-guetta-cdcal2013.pdf

Blanch v. Koons: http://cyber.law.harvard.edu/people/tfisher/IP/2006 Blanch Abridged.pdf

Rogers v. Koons: http://openjurist.org/960/f2d/301/rogers-v-koons

Again, I recommend you have all facts reviewed by an attorney in your area. If there is a law school near you, there could be a professor there who will do the review for free. It could be worth it to check. You might also want to let your graphic artist know that you received the notice from the musician's attorney.

 

[mdrak2011]

Sorry I'm in Illinois in the US.

I took a look at the cease and desist again, and realized that they are complaining about one piece that is on the artwork that is definitely copyrighted. It looks to be a logo for the artist (that I thought the designer created). Although I understand that I did use a copyrighted image, I'm trying to figure out if it really is necessary to give all of this graphic artist's information. It seems pretty over the top that they would take this that far over the $70 that I made. Besides that, the artist literally stopped responding to me last year a few weeks after he made some of these images, so I can't even get in touch with him. All I have is his emails.

 

[quincy]

Sorry I'm in Illinois in the US.

I took a look at the cease and desist again, and realized that they are complaining about one piece that is on the artwork that is definitely copyrighted. It looks to be a logo for the artist (that I thought the designer created). Although I understand that I did use a copyrighted image, I'm trying to figure out if it really is necessary to give all of this graphic artist's information. It seems pretty over the top that they would take this that far over the $70 that I made. Besides that, the artist literally stopped responding to me last year a few weeks after he made some of these images, so I can't even get in touch with him. All I have is his emails.

Well, if you KNOW the work the graphic artist designed for you infringed on the copyright of the musician, then it would seem smart to turn over whatever contact information you have on the graphic artist, so that the musician and his attorney can concentrate their legal actions on him and not on you - not that you can't be sued as well, for contributory infringement.

For contributory infringement, the musician would need to show you knew, or should have known, that the graphic artist's work was infringing on the copyrighted work of another.

The reason the attorney for the musician is requesting the information he is, it is important for the musician to determine the profits you made as a result of the infringement on his work to better help him determine the losses he suffered, so he can know in a settlement demand or in a court action whether to seek damages in the form of profits and losses, or seek statutory damages (if the work was registered prior to the infringement).

Publicity rights laws in Illinois also allow for a person whose name or image has been used in a commercial manner, without authorization, to collect damages. The minimum monetary award, as you will see from the following links, is $1000. Here are two links to the law (765 ILCS 1075): http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2241&ChapterID=62 and http://www.dmlp.org/legal-guide/illinois-right-publicity-law

Also potentially implicated is trademark law, if the design pilfered by the graphic artist was used as a logo for the musician.

Because of all the legal issues involved with the sale of works that have infringed on the musician's copyrighted work and image and logo, you need to find an IP attorney in your area for assistance in addressing the matter. This does not sound like something you want to attempt to do on your own, especially since the damages that can be awarded the musician could be significant.

Good luck.