admin
ColleenM 3:44pm, 4 November 2009
I'm reposting as a separate thread


calanan Pro User says:

Thanks to jakerome, who saw this last night, I found one of my photos being used on Toyota's new 4Runner web site without my permission (upper right photo).

Unexpected hiking partners by calanan



For the record, I was never contacted for permission or licensing, the image is (and has been for some time) licensed All Rights Reserved and the way it's "protected" (weak as that is) on Flickr they had to have circumvented the protections (e.g. screen shot) to copy it.

Also I've had the following disclaimer on the photo for some time as well (I habitually do this with all of my popular Flickr photos):

This photo is licensed All Rights Reserved. If you wish to use/publish it contact Michael Calanan / Calanan Photography, LLC

On thing I have never done, but will begin to, is register my images with the US Copyright Office.

For those who might not be able to access the Flash page, the photo is the used at 230x150px, is not credited but does click through to the Flickr page.

I realise that I should seriously consider investing in retaining a lawyer but in the meantime I'd like to hear what others in similar
situations have found to be successful.

Some folks half-jokingly suggesting that I send Toyota an invoice
for licensing and usage - does that ever actually work?

Also some suggest Toyota is in the clear due to the fact that they link back to the original and one cited the case Kelly v. Arriba Soft:

en.wikipedia.org/wiki/Kelly_v._Arriba_Soft_Corporation

Your thoughts?

Finally there are also discussions about this at:

www.flickr.com/photos/calanan/4074191630/
www.flickr.com/photos/calanan/111965008/
www.flickr.com/help/forum/en-us/111630
tech.groups.yahoo.com/group/ASMPproAdvice/message/9529

And on Twitter via @calanan.
admin
ColleenM 9 years ago
I think this is important enough to have it's own thread, so I moved calanan's post here.
admin
ColleenM 9 years ago
Sending an invoice has worked. Have your lawyer work with you, and you may find that Toyota is willing to pay you a standard fee, rather than take on a copyright case.

Kelly vs ArribaSoft was decided based on the use of the images being transformative and in a small size. I'd argue that Toyota has not created a new use of the images.

Linking back has nothing to do with copyright and everything to do with Flickr's rules. If you get no other satisfaction, you may be able to get Flickr to block the site so that they cannot use Flickr images.
admin
ColleenM 9 years ago
www.flickr.com/help/forum/en-us/111630/#reply717472

Flickr staff are looking into this.
calanan 9 years ago
Though I have not yet been contacted by Toyota directly, I just received a Twitter update from them stating:

twitter.com/Toyota/statuses/5424392180

"@calanan @Photo_John @stuartzero We're currently pulling the photos and will be in contact with each photography who was represented."

So much for the licensing/usage invoice I was drafting. :(
admin
ColleenM Posted 9 years ago. Edited by ColleenM (admin) 9 years ago
Yes, there's an official Toyota rep posting to the Help Forum thread.

Don't give up on the invoice. You may have some leverage to negotiate with them.
sdamlo 9 years ago
Absolutely don't give up on the invoice. Demand that they pay you for your image. They're a large corporation, and it's obvious that they're using your image for their advertising. They should know better. Who knows how large Toyota's audience is, but I'm sure it's huge! I know that permission costs are usually (at least in the publishing industry) based on audience number, so the cost for using your image should be a fairly large sum.
basegrinder 9 years ago
ah yes but also be aware that a big company can lawyer you to death if they decide they don't want to pay what you want.
Morgali Photography 9 years ago
This type of case = basic math...

expense of lawyering up and fighting VS. expense of paying licensing fees. If lawyers <= paying, they lawyer up.
basegrinder Posted 9 years ago. Edited by basegrinder (member) 9 years ago
doesn't cost them anything to lawyer up, you don't think Toyota doesn't have 100 lawyers on staff? Seems like they are going to take the pix down...

its a case of plausible deniability and pushing it off on a contractor who swiped the pix
cor23 9 years ago
Looks like the photos have been pulled off the site.
calanan 9 years ago
There are apparently two separate 4Runner sites, the Flickr photos have only been removed from www.toyota.com/vehicles/minisite/4Runner/ not from www.toyota.com/new4runner/
calanan 9 years ago
Update from

In Flickr: The Help Forum

"Toyota apologizes for pulling images from Flickr without photographer permission. Images from a handful of photographers appeared on a Toyota site for five days. We’re working quickly to reach out to the individual photographers involved. Until then, the images have been removed, and corrections have been made to the process of pulling images from Flickr."
calanan 9 years ago
I've updated my blog post with some helpful links on copyright that I was given during today's events.
basegrinder Posted 9 years ago. Edited by basegrinder (member) 9 years ago
regarding Toyota...they are well regarded as the most notorious for giving pretty much NOTHING in the class action cases they have settled.

For example, things like coupons for $75 off on car repair over $500 when you get it done at a dealership....

I was part of one, didn't have to join up, just as a purchaser....I got a letter saying I was part of the plaintiff group...about a year later I got a letter for 15% off work at their dealerships... which would be about 30% MORE than getting the same work done at a local mechanic....
calanan 9 years ago
Has anyone involved with this received any contact whatsoever from ?

I have not and frankly I'm upset and disappointed that, 24 hours after this issue was brought to light, Toyota has not contacted any of the photographers to discuss proper compensation, let alone apologise and explain how this could have happened.
calanan 9 years ago
FYI, PDN (Photo District News) has picked up this story at PDNPulse
calanan 9 years ago
calanan 9 years ago
On a related note, jakerome just found this new Toyota-sponsored campaign, Innovative Interactivity | Toyota launches user-submitted multimedia interface "Beyond Cars", dated yesterday, 4 November 2009:

Less than a year after Toyota wowed the interactive community with their “Why Not? Innovation Experience” site, they have launched “Beyond Cars,” a user-submitted interactive portal allowing their audience to discuss a “better tomorrow.” Their site provides a truly engaging experience as users move around a visually stimulating interface to read, watch, and view other people’s thoughts about our future.

Their submission system is extremely easy and user-friendly. They have integrated Facebook Connect as a second option to submitting user information from scratch, which helps speed up the process. Users can then voice their opinion with an image-and-text, video-and-text, or text-only message. Videos can be uploaded from a user’s computer, or recorded and broadcasted live with a user’s webcam. Photos can be uploaded from a user’s computer, Facebook profile, or Flickr gallery.



This all sounds warm and fuzzy until one reads the rights-grabilicious Terms of Service:


3. SUBMISSIONS BY YOU TO THE SITE
(a) General Terms. Any of your Submissions to the site, electronically or otherwise, including, but not limited to, photographs, videos, comments, questions, suggestions, text in any email transmission or any other Submissions, is and will be treated as non-confidential and non-proprietary as to you, unless specifically stated in our Privacy Policy. Any Submissions you provide to the Site may be used by us and our designees for any purpose, including, but not limited to, reproduction, transmission, disclosure, publication, broadcast, and/or posting.

You understand that in making any Submission, you are giving us and our designees an exclusive (unless specifically stated otherwise in this Site), worldwide, perpetual, irrevocable, royalty-free, sub-licensable right and license to exploit the Submissions and any Person’s property (physical, personal, and indicia) contained therein, in any media now or hereafter known, without any payment or other consideration of any kind, or permission or notification, to you or any third party. Our rights shall include, without limitation, the right to reproduce, record, alter, amend, edit, publish, publicly perform, use, merchandise, license, sublicense (through multiple tiers), adapt, and stream the Submissions in any and all media now or hereafter known, including but not limited to, the Internet and outdoor billboards, throughout the world, related to the Toyota Entities, their respective distributors, dealers and dealer associations, sales of their respective products or services (for example, sales of Toyota and/or Scion brand automobiles) and any other promotions sponsored by us....


And so on.
basegrinder 9 years ago
RIF, caveat emptor
admin
...Steve Posted 9 years ago. Edited by ...Steve (admin) 9 years ago
This was also reported in Brand's Anatomy.
calanan 9 years ago
calanan Posted 9 years ago. Edited by calanan (member) 9 years ago
Fort Photo PRO 9 years ago
Is there a cached copy of the site so we can see the other images they used?
calanan 9 years ago
Unfortunately I don't think so. I tried to save the SWF files but must have done something wrong, they're empty.

Interesting side note: New Flickr images are showing up on the Toyota 4Runner minisite

www.toyota.com/vehicles/minisite/4Runner/

But not this version

www.toyota.com/new4runner/
envious look [deleted] 9 years ago
calanan, I see the same photos on both links.
admin
ColleenM 9 years ago
Flickr staff said For the latest round of images on the Toyota 4Runner site, permission was obtained from the photographers to use their images, according to the ad agency.
calanan 9 years ago
I find it thoroughly disappointing that Toyota would take the time to communicate with Flickr but has not, to this day, communicated directly with the photographers involved. Yes, Saatchi & Saatchi, their advertising agency, is beginning to reach out to the photographers but I and the subset of photographers I have spoken with have received no contact from Toyota, be it to address what happened, apologise or discuss the compensation that Saatchi & Saatchi is offering.
calanan 9 years ago
calanan 9 years ago
theCameraClicks 9 years ago
Regardless of whether or not the image was removed from their website, an invoice should be submitted for unauthorized usage.
calanan Posted 9 years ago. Edited by calanan (member) 9 years ago
I agree. I am told, mind you by hearsay, that some have attempted that route and have been given a "take it or leave it" response from Saatchi & Saatchi. I can't speak to that as I have yet to respond to their offer while I investigate my options.
calanan 9 years ago
calanan 9 years ago
Interesting discussion at photo.net with emphasis on copyright

photo.net/casual-conversations-forum/00UwQp
calanan 9 years ago
Groups Beta