Just bumping this up as it's Monday

Thanks for all the questions - please do keep them coming.

Rach @ DCM

Tumbleweed............

Anyway, here's one.

Can you explain to me the difference between breach of copyright and passing off? Where they differ, what I can do about each and what the penalties are.

E.g. if somebody takes one of my pictures and uses it for their website that's a breach of copyright. Civil offence and all that and my chances of doing anything about it are tragically small.

However, if they took one of my images and placed it on, say, their wedding photography website with an implication that they had took it (reasonable person likely to think and all that) and this site was designed to attract business is that passing off? Is there such an offence? Is it civil or criminal? Could a large scale version of this be classed as fraud? How about false advertising?

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Kidography. It's like photography. But more fun.

Jonathan Ryan:

Tumbleweed............ Anyway, here's one. Can you explain to me the difference between breach of copyright and passing off? Where they differ, what I can do about each and what the penalties are. E.g. if somebody takes one of my pictures and uses it for their website that's a breach of copyright. Civil offence and all that and my chances of doing anything about it are tragically small. However, if they took one of my images and placed it on, say, their wedding photography website with an implication that they had took it (reasonable person likely to think and all that) and this site was designed to attract business is that passing off? Is there such an offence? Is it civil or criminal? Could a large scale version of this be classed as fraud? How about false advertising?

Interesting points there JR. I think for fraud to apply you need to show that he/she has gained money from the photo, and stopped you from getting that income. False advertising relates more to products and the claims, which must be in the advert, that they can do something which they can't. In these cases it would be a civil court that deals with this dispute.

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SK
The Best Photographer in the world 4th November - 5th November 2006 & 17th-18 November 2007
Oldboy’s Gallery

Well you know IANAL but until one turns up.....

OldBoy:

Interesting points there JR. I think for fraud to apply you need to show that he/she has gained money from the photo, and stopped you from getting that income.

I was thinking of it more being a criminal offence than actually harming me. So they wouldn't need to stop me getting income just try to get some for themselves.

False advertising relates more to products and the claims, which must be in the advert, that they can do something which they can't. In these cases it would be a civil court that deals with this dispute.

Yeah I was thinking of them saying "hey here are the kinds of pics I can take" (which is pretty much implicit in an advertising porfolio) when they can't. Or rather didn't.

Say I show a vacuum sucking up ice cream when in fact it can't do it and I actually robbed the footage off the Vax advert. It seems like that should be illegal to me.

Any thoughts on passing off? I'm sure I've heard that term kicked around in this context.

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Kidography. It's like photography. But more fun.

In the UK the tort of Passing Off relates to violations/infringements of trade-names and trademarks (registered or common-use) rather than copyrights.  If I were to set up a website trading as Johnathan Ryan Photography (or similar), I would not be infringing your copyright, but you might argue I was passing myself off as you and affecting your business and ability to trade.

Brian
(IP Paralegal)

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Brian

Flickr Galleries

Jonathan Ryan:

Well you know IANAL but until one turns up.....

OldBoy:

Interesting points there JR. I think for fraud to apply you need to show that he/she has gained money from the photo, and stopped you from getting that income.

I was thinking of it more being a criminal offence than actually harming me. So they wouldn't need to stop me getting income just try to get some for themselves.

False advertising relates more to products and the claims, which must be in the advert, that they can do something which they can't. In these cases it would be a civil court that deals with this dispute.

Yeah I was thinking of them saying "hey here are the kinds of pics I can take" (which is pretty much implicit in an advertising porfolio) when they can't. Or rather didn't. Say I show a vacuum sucking up ice cream when in fact it can't do it and I actually robbed the footage off the Vax advert. It seems like that should be illegal to me. Any thoughts on passing off? I'm sure I've heard that term kicked around in this context.

Just had a quick look at the Fraud Act and you may have a point. I have copied the section that applies.

1 Fraud

(1) A person is guilty of fraud if he is in breach of any of the sections listed in

subsection (2) (which provide for different ways of committing the offence).

(2) The sections are—

(a) section 2 (fraud by false representation),

(b) section 3 (fraud by failing to disclose information), and

(c) section 4 (fraud by abuse of position).

(3) A person who is guilty of fraud is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12

months or to a fine not exceeding the statutory maximum (or to both);

(b) on conviction on indictment, to imprisonment for a term not exceeding

10 years or to a fine (or to both).

(4) Subsection (3)(a) applies in relation to Northern Ireland as if the reference to 12

months were a reference to 6 months.

2 Fraud by false representation

(1) A person is in breach of this section if he—

(a) dishonestly makes a false representation, and

(b) intends, by making the representation—

B

2 Fraud Act 2006 (c. 35)

(i) to make a gain for himself or another, or

(ii) to cause loss to another or to expose another to a risk of loss.

(2) A representation is false if—

(a) it is untrue or misleading, and

(b) the person making it knows that it is, or might be, untrue or misleading.

(3) “Representation” means any representation as to fact or law, including a

representation as to the state of mind of—

(a) the person making the representation, or

(b) any other person.

(4) A representation may be express or implied.

(5) For the purposes of this section a representation may be regarded as made if it

(or anything implying it) is submitted in any form to any system or device

designed to receive, convey or respond to communications (with or without

human intervention).

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SK
The Best Photographer in the world 4th November - 5th November 2006 & 17th-18 November 2007
Oldboy’s Gallery

Shadow_Wolf:

In the UK the tort of Passing Off relates to violations/infringements of trade-names and trademarks (registered or common-use) rather than copyrights.  If I were to set up a website trading as Johnathan Ryan Photography (or similar), I would not be infringing your copyright, but you might argue I was passing myself off as you and affecting your business and ability to trade.

Brian
(IP Paralegal)

Ah cool.

So if somebody robs a pic and removes the logo then it's breach of copyright. If they take their own pic and apply my logo to it then it's passing off? Makes sense.

@OB - I guess the problem with fraud is that I don't get any compensation for their use of my image. The upside is I watched Criminal Justice last week and it looks like a year in prison may not be the holiday camp everybody says Jeffery Archer went to......

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Kidography. It's like photography. But more fun.

What do you do if you are taking a picture and there are people that are clear to see in the picture but, they aren't the main subject. Do you have to get these people to sign a release form if you intend to use the picture for commercial use? It has been annoying me for a while now and I would like an answer.

Thanks

Mark

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Non Sufficit Orbis


My DCM Gallery

My Blogspot


Canon EOS 400D
13 Years of Age and trying hard!

Hi Mark,

Thanks for your question!

Rach @ DCM

Mark_Corrigan:

What do you do if you are taking a picture and there are people that are clear to see in the picture but, they aren't the main subject. Do you have to get these people to sign a release form if you intend to use the picture for commercial use? It has been annoying me for a while now and I would like an answer.

Thanks

Mark

If you are posting to an agency then they would require a release form, as the advert it is used in, may not show them in the best light.

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SK
The Best Photographer in the world 4th November - 5th November 2006 & 17th-18 November 2007
Oldboy’s Gallery

Hello from flooding(again) Sheffy.

Great feature this legal thingy.
Now that ive got my own business forming,would i be best served to copyright my pics in the business name(Gigstills),or my own name ??

Thanks

Be Safe

bill stewardson

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"the best photographer in the world 12/13 May 07" bigbilly

Big Bill's Gallery

myspace.com/billstewardson
photobilly.co.uk

Missed the original article.

Is it on the site anywhere? Which issue was it in?

If it's allowed, any chance someone could scan and email it to me?

Thanks

Mike

 

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The world isn't full of strangers, just friends we haven't met yet.

Pbase supporter www.mikedinsdale.co.uk

Hi Mike,

I think DCM are trying to make it a regular feature. So it's been in the last few (couple?) of magazines. If you send in a question to the magazine then it might get answered.

Regards,
Hugh

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My Gallery.

flickr gallery

If you work for an employer and take pictures in works time, in theory copyright is theirs unless other terms are in place (As far as I know!)

But as both company and the tog (you!) are the same, I don't suppose it actually matters?

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Mark

Digital Photo Group
My Website

Ne nuntium necare