Chris...maybe the fella who used your picture and wrote the article got the picture from someone else. But, wouldn't Dave's Garden ask for proof of ownership of all pix submitted? If so, then the author would have had to put his copyright on it if there was none before. That alone, in my mind, should be illegal. There should be some nomenclature used to i.d. photos from an unknown source.

 

I certainly don't think you would alienate any in the gardening community for going after what is legally yours. There was an article in the last 6 mos. or year in Fine Gardening or Horticulture Magazine and written by Tony Avent of Plant Delights Nursery regarding plant trademarks and the other important ownership labels which escapes me. The legal aspects of these labels is serious business and Tony took some who ignore them to task. Here's the URL to the article from his nursery's web site:

 

 

Although not the same subject, yours is one of legalities too and I believe most in the gardening community would like to see photos respected similarly. And all of us have plenty of reasons to keep an industry we feel passionately about as 'clean' as possible.

 

Gene...when you submitted photos to Fine Gardening, for example, did they require copyrighted pix exclusively? Is that an industry standard?

 

What an interesting conversation. I hope you pursue it, Chris, at least a bit more if it won't take up too much of your time and zero moolah. I can't imagine most others would not be rooting for you to prevail as I am.

 

Joanie Anderson

----- Original Message -----
> My feeling on this is that if you don't make an plausible effort to
> correct the shanghaied photo's proper credits it might be construed
> as tacit permission if the picture is used in the future. I don't
> know the laws but that's my sense.

Legally that wouldn't be the case (except for trademarks, in which
case you're diluting the value of the mark by letting people use it
in an unauthorized manner), but it could be the case in terms of
public perception.  Someone could come along and ask that guy if
they can use some of his photos, he'd say sure, and then they'd
take the stolen one too.

> I would be after the person who is taking the credit for the photo.
> If he cropped your copyright then he's stolen your property. I would
> ask the author for proof that the image is his. Would guess any
> publisher worth their salt would insist that pix be submitted with a
> copyright on all images in which case Dave's Garden could be helpful
> if they wish to support your efforts.

My biggest concern is alienating the gardening community.  But the
fact that he purposely cropped out the copyright makes it obvious
that he knew what he was doing, so it raises my ire a lot more. :)

I don't want to be perceived as a 'bad guy' here though, and if he
refuses to make any changes the only course of action I have is a
DMCA takedown notice.

> I'd bet this happens often. What's the upshot for someone found to
> have stolen copyrights?

Usually there's not much recourse, although there's a new law being
considered that would make it a much more criminal act.  I oppose
that law and probably would never pursue anything through it.  I've
felt the same way about the DMCA law as well.

Copyright is pretty much based on revenue, so you could sue the
offender for damages.  If damages are high enough it would be
considered felony theft, but how do you say 'I lost revenue because
he copied my photo?'  That hort.net page is the #1 ranked page on
the Internet if you search for 'Rosa rugosa'; his page probably
doesn't steal away any ad revenue.

In terms of stopping them, the DMCA law basically says that if you find
a stolen work online you can contact the provider (davesgarden in this
case) and they will immediately take the material offline.  Then they
will contact the author of the material and he has a chance to file a
counterclaim to reinstate his files if he can prove that they're his.

My problem with the DMCA is that it's a shoot first, ask questions
later type of deal.  If someone lied and said that the hort.net graphic
was really theirs, our service provider could shut down the server
until I prove that it's really mine (oversimplification, but...)

Am I going to end up alienating hundreds of Internet gardeners over
an image?  That's my real concern.  I want them to feel free to come
over here and talk on the perennials list too.  :)

Chris

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