USE OF SOMEONE ELSES PHOTOS IN ADVERTISMENT.

[reeniemartini]

Hi All,

This is one behalf of my sister. She has a small business making birthday / christening / wedding cakes. She has just opened a local free wedding magazine and found another cakemaker using a photo of her cakes in their advertisment.
The original picture was from a styled photo shoot for a vintage china hire company - my sister supplied the cakes for them. There is every possibility that the china hire company gave the woman permission to use the photos of their plates BUT the caption beneath the photo makes no reference to the fact that these cakes are not hers, in fact although not explicitly saying, it gives exactly the opposite impression e.g "We are can design whatever you want!". The picture has even been cropped to make the cakes the main feature.
What exactly is her postition on this? Oh and the same photo appears on the companies Facebook page with a caption from her(not a coment by someone else) saying how pretty they are!

I'm not a solicitor so my advice is probably not that useful but has your sister contacted the china company to see if they have allowed the use of this photo by the other business? If not, it might be best to make a joint approach. If the photographs were professionally done, then the photographer will probably have something to say about their being appropriated in this way too.

I'm pretty that a company making cakes would use a picture of someone else's cake! At a (charitable) guess, I would say that they had someone design their ad who just grabbed a picture off the web and your sister's cake looked the nicest .

That's outrageous! I would contact the china company and see what they have to say.

I would be tempted to get a friend to comment on the FB page 'isn't this cake made by jane's fancy buns?' to put the wind up them.

Then I would ring them up and tell them to stop it.

Whoever took the photos has copyright.

I would write to the other company, asking them to either remove the image or credit her within seven days or she will be speaking to her solicitor.

From what I can remember, she needs to contact them to ask them to remove the images and text, as it's a breach of her copyright. It really does depend on whether she sold the copyright to the vintage china hire company or she allowed them to use the image. If she's sold the copyright or contracted it away, there's nothing that she can do. Otherwise, she needs to send them the letter. The next step would be court, as she can claim for damages. They can't legally republish/reprint anything which used skill and expertise to create, so this wouldn't include holiday snaps but would include professional pictures, as they would have needed time and skill to create (if this makes sense).

My copyright legislation knowledge is rather rusty, so hopefully someone will confirm/tell me to piss off later

As OnOfMyTurns, said, copyright stays with the photographer, so if s/he sold the picture there's nothing Op's friend can do.

But it is pretty shitty behaviour.

But if they are passing the cake off as their own (the assumption is that it is their creation) then surely that is fraud?

I'm not sure, Frontpaw. You'd have to get advice on that.

You have to distinguish between the rights in the photograph and the rights (if any exist) in the cake.

The photographer is the original creator and therefore first owner of the copyright in the photograph.

The company that commissioned the photographer may have acquired the rights in the photograph so whilst the photographer remains the original creator (and thus has a right to be credited as the creator of the photograph), it will depend on who owns the rights in the photo now as to whom you can complain about the use of the photograph.

There are possibly underlying intellectual property rights in the cake, but these are more likely to be design rights than copyright. It depends on the style of and originality of the cake.

For example, if it's a simple (albeit delicious looking) victoria sponge, then it is unlikely to have any sense of original design to it and therefore unlikely to be protected by design rights.

if, however, it's an original and unusual design then it probably is protected by design rights.

OP - I think your sister should first speak to the china company about who owns the rights in the photo. If they don't know, it is likely that the photographer owns them.

Even if they were granted permission to use the photo, they are unlikely to have been permission to crop it so that it only shows the cake.

So, the easiest thing to do would be to get the photo pulled from their material. If it's in a local wedding magazine then the magazine should print a correction stating that the image used in the advert was not a depiction of the advertiser's products, otherwise they could be in trouble for secondary infringement.

It is unlikely that this would be fraud. It's a civil law matter.

I doubt the CPS would be interested in the wrongful use of an image. Advertising Standards Agency might be more interested, but since it is a small company using facebook and a local free magazine to advertise, then they may not be interested either.

Than you all for taking the time to reply. It's a tricky one. The magazine has a disclaimer stating that they are not responsible for the verification of stuff used. My sister knows that the china company has links with the other cakemaker so they may well have said it's o.k to use the image. There are however only two images used in the advert, my sisters cake and another one. The advert is for someone who makes cakes and the perception is that these are examples of her work. Regardless off the legalities, it seems morally wrong - it's quite clear she's trying to suggest the work is hers and she would know that it wasn't. The area they work in is geographically small so it was ridiculous to think she wouldn't see it. I think she will call the lady and NICELY ask why she hought it was ok to do, then take it from there.

What about a complaint to the Advertising Standards Authority?

The photographer owns the rights to the use of the photo, unless it has been commissioned by a company for their advertising in which case usually the rights are 'bought' by the commissioning company. I think this is an issue of misrepresentation though rather than who owns the photo.