what do you think??

[TamiAz]

Does she have a case?? He definitely used her picture to make the fabric. I don't know enough about copyright infringement. I thought I would see what your thoughts are.

Sweet Eventide by Jessica Nichols: Chris Benz's Spring 2012 Line

 

[MLeeK]

Well, I'd say it's quite obviously her image, without a doubt. So, yep. She's got the case.

 

[KmH]

I noticed that sweeteventides blog doesn't say, but if sweeteventide didn't register the copyright to the photo with the US copyright office prior to the infringement, it's not a slam dunk case.

The timing of copyright registration determines if statutory or actual damages can be sought. if an image is registered after an infringement occurs, only actual damages can be sought.

See Option #6 in this link - Help! I’ve Been Infringed! | Photo Attorney

When a photo is not registered with the U.S. Copyright Office prior to the infringement (or within three months of the first publication of the photo), a copyright owner may recover only “actual damages” for the infringement (pursuant to 17 U.S.C. 504 (b)), instead of statutory damages. Courts usually calculate actual damages based on your normal license fees and/or industry standard licensing fees. One source for standard license fees is a software program called Fotoquote. You also may recover the profits the infringer made from the infringement if they aren’t too speculative.

For the above, the legal definition of 'publication' applies, not the 'street' definition of publication.

 

[Derrel]

I really do not think that it can be proven that his FABRIC design is directly infringing on any copyright of her PHOTOGRAPH...I think her claim is weak, and will not stand up in a well-argued case. Does she claim ownership to ALL OTHER floral designs that have white, yellow, orange, and pink? He might have been inspired by it...he could also claim he saw these colors at a sidewalk flower shop...her photograph has copied the color scheme from many paintings...I think she's going to have one heck of a tough time proving anything...his work might be derivative, but it is not in ANY WAY confusing buyers of her photo; it's not even the same medium! Her image is art...he is making utilitarian, wearable items out of fabric. The presence of his fabric will in no way, diminish the value of her photos,nor confuse the buyers of her photos. I think her contention is pretty weak. A similar hula dancer photo and stained glass case argued in Hawaii comes to mind....the photographer LOST, big-time. I do not believe she can in any way copyright ANY floral pattern in fabric.

Where is the SOLID BLACK background the colors are shown on in HER photo????

 

[MLeeK]

I really do not think that it can be proven that his FABRIC design is directly infringing on any copyright of her PHOTOGRAPH...I think her claim is weak, and will not stand up in a well-argued case. Does she claim ownership to ALL OTHER floral designs that have white, yellow, orange, and pink? He might have been inspired by it...he could also claim he saw these colors at a sidewalk flower shop...her photograph has copied the color scheme from many paintings...I think she's going to have one heck of a tough time proving anything...his work might be derivative, but it is not in ANY WAY confusing buyers of her photo; it's not even the same medium! Her image is art...he is making utilitarian, wearable items out of fabric. The presence of his fabric will in no way, diminish the value of her photos,nor confuse the buyers of her photos. I think her contention is pretty weak. A similar hula dancer photo and stained glass case argued in Hawaii comes to mind....the photographer LOST, big-time. I do not believe she can in any way copyright ANY floral pattern in fabric.

Where is the SOLID BLACK background the colors are shown on in HER photo????

Did you watch the video? It's a 100% match. What are the odds?
The background in her photo isn't black. Or solid.

 

[kathyt]

I would not say it was a DIRECT copyright infringement. I would say this is going to be very hard to prove because it is flowers. Flowers are everywhere. If this were a person or a portrait then it would be alot easier to prove.

 

[TamiAz]

Check this out.. It's definitely a match.

http://www.anonmgur.com/up/3f9b40079df2da2825ca4d0dc9801138.gif

 

[Light Guru]

I really do not think that it can be proven that his FABRIC design is directly infringing on any copyright of her PHOTOGRAPH...I think her claim is weak, and will not stand up in a well-argued case. Does she claim ownership to ALL OTHER floral designs that have white, yellow, orange, and pink? He might have been inspired by it...he could also claim he saw these colors at a sidewalk flower shop...her photograph has copied the color scheme from many paintings...I think she's going to have one heck of a tough time proving anything...his work might be derivative, but it is not in ANY WAY confusing buyers of her photo; it's not even the same medium! Her image is art...he is making utilitarian, wearable items out of fabric. The presence of his fabric will in no way, diminish the value of her photos,nor confuse the buyers of her photos. I think her contention is pretty weak. A similar hula dancer photo and stained glass case argued in Hawaii comes to mind....the photographer LOST, big-time. I do not believe she can in any way copyright ANY floral pattern in fabric.

Where is the SOLID BLACK background the colors are shown on in HER photo????

Did you watch the video? It's a 100% match. What are the odds?
The background in her photo isn't black. Or solid.

You CANNOT tell any thing by the video. The video does not ever stop show a detailed view of the cloth pattern in question. The low res image of the bag makes it hard to tell definitely also.

What the person NEEDS to do to prove their case is buy one of the items with the questionable cloth pattern take a hi res detailed photo of it and post it side by side with their photo to illustrate their point.

I have to wonder why the person did NOT do that to prove their point in there article. It's a rather simple thing to do to prove your case.

 

[KmH]

I don't think there is any doubt the image was infringed.

But, if the attorney's only option is to seek actual damages. they won't be as willing to pursue the case on such a speculative basis. Unless the client has sufficient funds to motivate the attorney.
If an attorney can sue for statutory damages, a lot of speculation is eliminated, particularly if a 'willing' infringement can be proven.

Actual damages may only amount to a couple of thousand dollars, while a willful infringement award can be a maximum of $150,000 per image plus court and attorney fees.

Since the linked to web site has a 'Donate to my legal fund' link, I'd bet the copyright was not registered in time to allow seeking statutory damages, and that the plaintiff lacks the $$$$$'s need to press the issue.