So a model that I've worked with called me today to inform me that her x-Boyfriend was playing a video game called Juiced 2 and noticed her picture in the video game. It's a screenshot while the game is "loading, please wait". I did this shot with her for a company called Planet beach Tanning which is completely unrelated to this.
The tie is here ; She did some promoo stuff for a car road show called Hot Import Nights. They told some girl that they might be pictured in the video game and they dressed them up in Juiced 2 outfits. Somehow they got a hold of my image, through the model, but she specifically told them not to use that image in the game because they weren't planning on paying wither of us for it and we both said NO. Well, they went ahead anyways and not it's in the game.
So what are my options now? The image is forever in the game, it's not like they can pull it out of the game.
First talk to IP Lawyer, since you did this for another client, how was your contract worded between you and the Palm Tan?
Get the model to be on board with you, since she owe certain copy right as well.. I assumed she only sign the copyright for you to commercial image for somthing else, not for Videogame. Remember the Taster Choice coffee dude.
Send THQ - gam maker the invoice, from both of you via certified mail
registered the image and a letter from an IP lawyer.
Is this a screenshot in question?
http:\\ dsmedia.ign.com/ds/image/article/830/830321/juiced-2-hot-import-nights-20071025020306773.jpg
Edited by jojosung on Mar 05, 2008 at 04:41 PM GMT
Edited by jojosung on Mar 06, 2008 at 01:41 AM GMT
Now here's the caveat. My hard drive crashed a while ago and I had not backed up that image so it has now been lost. In essence, I don't have the digital negative. I do however have 2 more witnesses that were at the shoot (members of Planet Beach) that can vouch that they were present.
Oh and as far as Planet Beach goes, it was a low key deal with them for a local store ad in the paper. They didn't use this image. I gave them 5 or so images that they ended up using. The have no rights at all since we didn't sign anything.
Being professional, you registered the image with Copyright Office so you can get statutory damages and legal fees, right? Otherwise all you can get is ordinary payment for the usage and you will have to fork out the legal fees when they tell you to buzz off. Likely would be a net loss.
ferradas wrote:
Oh and as far as Planet Beach goes, it was a low key deal with them for a local store ad in the paper. They didn't use this image. I gave them 5 or so images that they ended up using. The have no rights at all since we didn't sign anything.
You mean you have no rights at all because you didn't get them to sign anything. They can claim that they had an open-ended wide-ranging verbal contract.
ferradas wrote:
My hard drive crashed a while ago and I had not backed up that image so it has now been lost.
There is more to being professional than making a pretty picture (your picture was very pretty).
Of course, it is not strictly true that you have no rights at all. If the video game was published less than 90 days ago, you might be able to still register the image with the Copyright Office.
jojosung wrote:
Get the model to be on board with you, since she owe certain copy right as well.. I assumed she only sign the copyright for you to commercial image for somthing else, not for Videogame.
The model has no copyright to the image at all, unless the photographer made an agreement with her to assign her some or all of the copyright, and I think this is unlikely.
You may be thinking of "model release", which is a completely different issue.
Again, I am not a lawyer.. but what I am thinking of is the Taster Choice Coffee Man Case.
When the photographer took his image for Taster Choice, the model release was for a specific purpose, not to be used as the label for all coffee jar.
Nevertheless, despite him, not having the copyright to the photos, but b/c of the usage, he successfully win the case.
That case is very similar to this, in that the original image was shoot for a local store ad, not a global videogame.
Monito wrote:
The model has no copyright to the image at all, unless the photographer made an agreement with her to assign her some or all of the copyright, and I think this is unlikely.
You may be thinking of "model release", which is a completely different issue.
Yes, that was a model release issue. The model may be able to win a judgement in this case, but whether she gives the photographer any money out of it would up to her generosity.
Wikipedia wrote:
In February 2005, the Associated Press reported Nestlé lost a lawsuit and was ordered to pay $15.6 million US to Russell Christoff for using an image of him without his permission on their Taster's Choice label for approximately five years (1998-2003).
In July 2007, the judgment was subsequently reversed in its entirety by the California Court of Appeal. (Christoff v. Nestle USA, Inc. (July 24, 2007, B182880) __ Cal.Rptr.3d __ [2007 WL 2111013].)
On October 31, 2007 The California Supreme Court, with a vote of 6-0, granted review.
I would register all of your images as a group immediately. Then get in touch with an Intellectual Property Attorney and tell them what happened. They will most likely take it on for a percentage. Go buy the game because it will simply be proof of the violation. Do not send the video game manufacturer an invoice since it could be just a fraction of what the Attorney could get you.
Step 1. Call a lawyer.
Step 2. Do what he tells you.
Simple as that. If they are registered you will have little trouble finding a lawyer as this case seems to be pretty good for them. He could represent both you and the model as you both have a legitimate claim against them.
Thanks for all the advise guys. I have the paperwork to register the image, I just finished filling it out. i gotta tell you though, I've been a bit unmotivated because i really don't want to fork out any cash to later find out that I ain't getting crap. I surely hope I can talk to a lawyer that would take a percentage rather than charge me a fee win or lose. Does anyone know someone I can call in Northern California? San Francisco area?
And BTW, here's a screenshot as it appears in the game: I hope I have a case here.
I'm not lazy to defend, I just haven't jumped on this full force. I just submitted a request for an IP lawyer in my area to contact me and see if we can move forward with this. I will be upfront with him and say that I will only go forward with this if he takes a percentage. I can't afford any lawyer fees in case I don't win and the lawyer wants to get paid. I've never done this before so I'm not sure how the lawyers get paid.
What did you mean by "unmotivated"? If you register in a timely manner you can receive a judgement of up to $150,000 per occurrence. If not, it will be your standard fee for the job.
