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Band Image on Website

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bengland

Junior Member
maine

I play in a band and several of our images are posted on a pub website that we used to perform regularly. They are in the "photos" section of the website, most of which were submitted by patrons. It has been two years since we have had a gig at this location, so Dec 2, 04, I emailed the owner and asked (quite nicely) that he remove the images (there is a banner in the background that is quite prominent with our band name on it), and he agreed to ASAP, but he did not. I have repeatedly prohibited the use of these images and asked him several times to remove them. He has always said he will, then nothing happens. It is coming on 4 months now, and I have had enough. What legal options do I have to have these pics removed, and can I be compensated for the 4 months I have been ignored?

Brian
 


divgradcurl

Senior Member
bengland said:
maine

I play in a band and several of our images are posted on a pub website that we used to perform regularly. They are in the "photos" section of the website, most of which were submitted by patrons. It has been two years since we have had a gig at this location, so Dec 2, 04, I emailed the owner and asked (quite nicely) that he remove the images (there is a banner in the background that is quite prominent with our band name on it), and he agreed to ASAP, but he did not. I have repeatedly prohibited the use of these images and asked him several times to remove them. He has always said he will, then nothing happens. It is coming on 4 months now, and I have had enough. What legal options do I have to have these pics removed, and can I be compensated for the 4 months I have been ignored?

Brian

Who took the pictures? If these pictures were taken by you or another band member, and were given to him to use on the site (i.e., he was licensed to use the pictures), then you can revoke the permission at any time. If he doesn't remove them, your next step would be to get a lawyer to write a cease-and-desist letter, and perhaps file a DMCA comlaint with his ISP.

If the pictures were taken by him or by other patrons, then there probably isn't anything you can do. You don't own the pictures -- if I took a picture of your band, and put it up on my website, it's my picture, not yours. You could potentially claim that your band name is your trademark, that you've acquired common-law trademark rights to your band name, and that his use of the band name on his website constitutes "endorsement" by the band, and that is infringing your trademarks -- but again, that will require a lawyer to get involved, and will cost some money.

So, if the pictures are owned by you, talk to a lawyer about copyright infringement. If the pictures are not yours, you can't really stop him from putting the pictures up. You might be able to stop him from using your band name and logo, but again, that will require a lawyer.

As far as compensation -- well, how have you been damaged? What damages can you prove to a court that you have suffered?
 

bengland

Junior Member
thanks for the help

Thanks for the help with this. The pictures were taken by the webmaster himself. The problem I have with them is that the band logo is predominately shown in the picture. They have today removed the pictures. The images of our band performing and our logo would be considered intellectual property would they not? What is the difference between the venue posting images of us performing under our logo against our consent, and them using one of our songs on a television commercial against our consent? I appreciate your opinion and enjoy the dialogue. All the best
 

divgradcurl

Senior Member
The images of our band performing and our logo would be considered intellectual property would they not?

Yes, they are both IP -- but in this case, they are owned by different people. The copyright of a photo -- not matter what the photo is of -- belongs to the photographer that took the photo. Your logo is your property -- the fact that the photo is of your logo may mean that the photo's owner cannot post the picture without infringing on any trademark rights you may have acquired in the logo, or any copyright rights you may have in the logo, but it does not mean that you automatically acquire the rights to the photo.

What is the difference between the venue posting images of us performing under our logo against our consent, and them using one of our songs on a television commercial against our consent?

Well, this particular hypo you've given really is the difference between commerical and non-commercial use of materials -- plus music is a lot different than a photo. If I have permission (either implied or explicit) to take a picture of your band, logo included, I can use that picture anyway I want, with the exception of using it in such a way that implies that your band endorses of or approves of something that I am selling or giving away. If the bar owner used your logo on the main page in such a way that implied that this was your guy's favorite bar or something, then that would be impermissible commerical use of the photo. But merely having the picture, with or without a logo, on a page that just shows pictures of the bar, or whatever, that's not commercial use in this context -- he is not using your band's name or logo to drive customers to the bar.

Now, that said, a good lawyer might be able to poke holes in that defense, but just having photos up on a "photos" page is not going to make a strong argument for commercial use.

With the music, what you have described is pure commercial use, and that would be prohibited without explicit permission.
 

Zain Jaffer

Junior Member
I also think that if they made a profit with your trademark/photos then you are entitled to royalties (correct me If I am wrong!)
 

bengland

Junior Member
I thank you both for your opinions. I think that I could likely hire a lawyer to prove a point, but in the end, I'd only be spending money. The big issue in my mind was that I wasn't aware of the photo on the site, and when I saw it, I asked him to take it down. Because we have a following, it could be said that they are using our image as marketing by associating us with the pub. This is a well known business, and an internet website for a business is 100% marketing, all the time. They would certianly write off the fees as marketing expense I am sure. Thus wouldn;'t our image be being used for marketing purposes. Could they then use that image on a television commercial or print ad? I'm saying that I think it's the same thing, or at least I hope it is. Putting a dollar value on it would be very difficult, I know. Anyway, I find this banter quite interesting. Please note that the images are now off the website and I've recieved a letter of apology. This is a totally theoretical discussion now. Thanks

Brian
 

divgradcurl

Senior Member
Because we have a following, it could be said that they are using our image as marketing by associating us with the pub.

The fact that you have a following is really irrelevant -- the important issue is whether or not the picture is used in such a way to constitute endorsement. Not every use of a picture, even a famous person's picture, constitutes endorsement. If I have a restaurant, and joe public comes in and I snap his picture and put it on the front page of my website in such a way that is appears that he is a spokesman for or otherwise endorses my restaurant, that's not legal, and whether or not anyone knows who this person is is irrelevant.

If Clint Eastwood comes into my restaurant, and someone snaps a candid photo of him eating, and I put the picture on my website under a link called "photos" or something, then it is very unlikely that he could make a case that my use of the picture would confuse someone into believing that he endorses the retaurant. The FACT that he ate at my restaurant is just that -- a fact -- and as long as I am not advertising my place as "A place Clint Eastwood lies to eat" the FACT that he did eat there is not the type of commercial speech that we are talking about under trademark law.

So the FACT that you played at the club is just that -- a fact. Unless the pub owner was using your image and logo in such a way that his use constituted endorsement of the bar by your band, I doubt you would have much of a case.

Now, all that said, there could be privacy rights involved here -- but it sounds as if the pictures were taken with knowledge and permission, so privacy isn't an issue here.

This is a well known business, and an internet website for a business is 100% marketing, all the time. They would certianly write off the fees as marketing expense I am sure. Thus wouldn;'t our image be being used for marketing purposes.

The fact that the website is used for marketing purposes isn't the issue -- of course any photos are up for marketing purposes -- they want to make the bar look as fun and happening as possible -- but as long as the pictures they use are NOT being used in such a way as to imply endorsement, then thhere really isn't a problem here. You cannot protect your image 100% -- the law simply isn't set up that way. The fact is, you DID play at the club, and he is allowed to advertise that FACT.

Could they then use that image on a television commercial or print ad? I'm saying t

This is a fine line, but potentially they could. Again, the test is whether or not they would be using the picture in such a way as to constitute "endorsement." This of the "Girls Gone Wild" ads you see on TV -- they can photograph women taking off their clothes in public, and there is nothing that the girls can do about -- you simply don't have an expectation of privacy in a public place -- but the publishers have to get permission from the girls if they want to use their photos in certain ways on print ads -- they were using the images in such a way that the coruts found that it constituted "endorsement," and the producers lost the case. But the key wasn't that they used the pictures -- it was HOW they used the pictures.

Look, if you don't want pictures of your band floating around, you need to make sure that nobody takes pictures of your band. I guess you could include that in your contract to play. However, if you don't have such a contract in place, you really can't control every use of your picture. Admittedly we don't have all of the facts here, and only one side of the story, but from what you've written, it sounds like the bar owner more likely than not had a righht to have those picutres where he did, and took thenm down just to avoid a fight, not because he was legally in the wrong.
 

bengland

Junior Member
I really appreciate your input. You put a lot of time into this site. I have thanked the venue for removing the pictures, and they are very good about it. They didn't have a problem taking them down, it was just that they never got around to it. I have learned a lot from you and intend to get our agency to add a line to our contract that deals with images of the band. I was thinking something like "Although Jug in Hand encourages fans and venues to take pictures and post them on websites and/or display them at the venue, we reserve the right to have removed any image of Jug in Hand that we find objectional to us in any way". Would a clause (worded more carefully of course) like that help avoid problems like this in the future, or do the same arguements apply?
 

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