An ethical dilemma

by Shannon on April 25, 2007

Ok, here’s a moral-ethical dilemma for you. I believe, strongly, in defending my own intellectual property rights. I try to respect others’ rights online by adhering to the usual blogging conventions (linking to the people I quote, for example).

But what do you do when a seemingly good cause — knitalongs for the victims of the Virginia Tech shooting — infringes on your IP?

Check out this KAL and this KAL. They’re both using a yarn ball image that was made expressly for me by the illustrator of Knitgrrl and Knitgrrl 2 for use in my online shop. It’s not the first time someone’s stolen this image and used it for their own project, either. I feel terrible complaining about it since it’s a good cause, but then again, if I don’t assert my rights, that’s a bad thing, too.

What do you do in this situation?

update: I talked to both KAL organizers via email and they did take it down, on their sites at least. Hurrah! I also took down the photo here because the shop‘s currently down for a software upgrade and the images folder is behind a password-protected wall that unfortunately will pop up a login window even if you’re not on the actual shop site itself.

{ 18 comments… read them below or add one }

emmajane April 25, 2007 at 10:09 am

Ok. I am very much an open source “free” advocate. That said and done: my stuff is still my stuff. Here are a few questions back for you:
(1) if they had asked how would you have provided permission to use their image? i.e. would you have wanted a link back to your Web site? Would you have wanted a fee?
(2) if you did not believe in the cause and they had asked, how would you have said no?
(3) do you have a copy of a contract from other projects that you could forward to them? (i.e. the kind that say, “one-time use” vs “right to use the image for one year.” The name of this contract escapes me at the moment.)
Ultimately you need to answer all of these questions for yourself and decide what’s right.

If it were my image that were taken by this organization I think I would:
(1) ask the illustrator if they were ok being affiliated with the project and: if yes ask the org to include the illustrator’s name as a credit on their web site. If no: ask that the image be removed as it infringes on the artist’s copyright.
(2) decide that you have the moral authority to give permission for an org to use the image and send a little note to the project that says, “Did you know this image is copyright and that it’s not a free image?” (Maybe they don’t know! Maybe they think you found it for free somewhere too?) Offer them a link to http://creativecommons.org/image/ and suggest they choose a “free” image…or extend rights to use the image so long as they provide appropriate credit back (where you decide what credit is due).

Of course it’s a tricky situation…but I also think that just because it’s “tricky” it doesn’t mean that you have to give away your stuff for free IF you don’t want to.

Brenda April 25, 2007 at 10:13 am

People do this with my logo Purl on occasion. Despite the fact there’s a posted “do not use without permission” line in the footer, despite the fact that I put “This image may not be used without permission.” as the alt tag on the image, despite the fact that I named the image file “donotstealbandwidth.gif”, people not only post the image on their sites but they link directly to the image on my server, eating up my bandwidth.

Usually it’s the result of naivete about IP issues. I usually just ask them to stop using the image and they do. I think you’re right to not be too upset about it, as it’s a good cause and not-for-profit. But I still think you should ask them to use a different image. They shouldn’t have used it without your permission first. They didn’t ask, so they should stop using it. Don’t feel bad about it. Think of it as a teaching opportunity.

j jackson April 25, 2007 at 10:15 am

I think I’d approach them in a straightforward way and explain the situation just as you did in this post and your email to us. If you asked them to remove it, I bet they would totally understand and do so apologetically. Give them an idea for an alternative if you can think of one. They seem like their hearts are in the right place, and I’ll bet they didn’t borrow your image intentionally or with any maliciousness in mind.

You could also ask them to credit your image and link to your site if you want the traffic. Not sure if that would be worth it, though.

Are they making any money from your image? Are they printing it anywhere? Are they a very large group that has any funding or are they just a group of like-minded hobbyists?

I’d probably let it go as long as the answers to the above questions were acceptable to me… let them know, put specific limits on what they can or cannot do with your image in the future, but I think this will pass. I don’t think they’re trying to step on your toes, it was probably just a somewhat honest mistake.

Shannon April 25, 2007 at 10:17 am

Emma, the voice of reason!

1. Had they asked, sure. Another friend who shall remain nameless responded in email “ugh. you can’t even read that little button and it’s not even close to coordinating with the school colors. if they made a really nice button out of it, that would be one thing…”

2. I would have referred them to something like the Creative Commons image site so they could look for another yarn ball-ish image.

3. No, because generally I don’t license my images like this…

The illustrator made the image for me, for my shop. She’s credited there, so I think a link to the shop site is more appropriate than to her site (intershadows.com). Of course, then you get the whole “filthy commerce” side of it — “she only wants a link to promote her shop,” not because this is an IP issue.

j. April 25, 2007 at 10:57 am

Given that you have the right to deal with the copyright in the image as you wish (and I’m assuming this, because you didn’t actually *say* that in this post; copyright in a work done on commission is owned by the creator, by default, unless there’s a work-for-hire or other assignment agreement in place), and given that you would have given permission had they actually thought to ask, you could contact them now and offer them a retroactive licence to use the image for this specific purpose, on condition that they indicate on or near the image (heck, give ‘em a replacement file if you want) that the image is protected by copyright and is being used with permission, and that permission for any other use must be obtained from you.

Problem is, you’d also want this propagated to all of the other images that participants have posted to their own sites and blogs.

skamama April 25, 2007 at 11:05 am

I’m completely behind Emma and Brenda.

I would give the benefit of the doubt that it is a teaching opportunity. Inform them that it is not a free use image and point them to the common use images.

One issue is that if the yarn ball image in question is a brand logo (or becomes one) for your shop it would imply that you are endorsing these KAL’s. However, you do not have any more information than what you read on their blogs for the charity and in essence lose control of how your brand is being used.

If the illustrator agrees, you could refer the KAL people to the illustrator to create a special button that would tie in to their cause better.

I think starting with Emma’s, “Did you know this image is copyright and that it’s not a free image?” is a great opener for the issue.

Kathy Elsie April 25, 2007 at 12:50 pm

Seeing as they just ripped it off in the name of charity and didn’t even bother to ask your permission, I’d point it out to them and see what their reply is. If it’s reasonable, let it go, if they get snarky, take legal action.

Kathy

Michelle April 25, 2007 at 1:26 pm

You’ve gotten great advice here. Me, I was wondering when the first VTKAL was going to pop up. I should’ve taken bets.

Felicia April 26, 2007 at 7:47 am

I would write them a short note explaining that the image is copyright protected and that they aren’t allowed to use the image. Honestly a lot of people do not understand copyright and think that anything they find on the web can be taken and used however they wish. Explaining it nicely to them is the way to go.

Lucy April 26, 2007 at 9:20 am

I would write them. Remind them of copyright rules but say you don’t mind them continuing to use it as long as they credit you in someway. Maybe link back to your online shop and list you as a recommended source. Good way to get some free publicity. Also ask them nicely to please ask before ‘borrowing’ an image from you again.

Brenda April 26, 2007 at 11:29 am

Sorry to double post, but I’ve been thinking about it more… since this image is associated directly with you and your shop, and you have fairly high visibility in the knitting community, I think these groups are diluting your brand and misrepresenting the KAL by using your image, possibly implying some sort of sponsorship from you for those who recognize the image. I really think it’s imperative to nip it in the bud and ask them to use another image, before it gets propagated in a million places. Charity or not, they’re violating your copyright. In many cases there aren’t any real business consequences of that, but in this case I think there might be.

A related experience… When the TNNA Stitch & Pitch people were recently asked by Knit Simple magazine to supply a photo to go along with a blurb about their SnP events, they didn’t do what you’d expect them to do: pull an image from one of the hundreds in their online gallery. Nosiree, bob. They trolled Flickr and submitted an image that was 1) from the Chicago event I organized the year before, that had no association with TNNA, and 2) showed a friend of mine wearing a “Stitchnbitch Chicago” hoodie, implying an affliation, and 3) had the TNNA SnP logo (avec giant TM) slapped across said photo. Needless to say, I was miffed. If StitchnBitch were an actual business, options would have been considered. As it is, they just lost a potential (large) marketing avenue for their events.

j. April 26, 2007 at 2:30 pm

Brenda has a point, but I think that in this case, it presumes a leap that I’m not sure is well taken in this case. We’re talking about an illustration depicting a ball of yarn, which I seem to recall might have been used as a graphic in one section of the Anezka shop, and I don’t see it associated or used to promote the Knitgrrl brand (well, I can’t now if it was, because the shop’s offline). I don’t see it on this site now, at all.

In Brenda’s example, it sounds like it was quite obvious that the information that implied the association between StitchnBitch C. and TNNA was there in the image: the hoodie with the “stitchnbitch Chicago” on it. In this case, I’m not so certain that an association can be implied so readily.

What I mean is, I don’t think that this concern, which is making use of the Knitgrrl goodwill or reputation issue rather than a copyright issue, is the problem here; the copyright issue is paramount.

Brenda April 26, 2007 at 2:50 pm

I guess what I was thinking, and it probably has no legal merit but definitely some business marketing merit, is that they’re using it on a button that is going to be posted on every website that participates, and I assume they’re encouraging people to post it on many websites to promote the cause.

Most people probably haven’t seen the image until now (I hadn’t), but upon visiting Shannon’s site later may recognize it as “the logo from the VTKAL”. Which probably isn’t the association she really wants to make.

So, from a marketing viewpoint, there’s definitely an interest in controlling its use, one that becomes more important the more popular the KAL is (although its popularity remains to be seen, of course).

j. April 26, 2007 at 10:39 pm

The concept does exist, and does have legal merit in the right situation (where there are (unregistered) trademark rights involved): passing off or reverse passing off, depending on the scenario. The situation you’re postulating would be reverse passing off: the junior user’s use of the image would be so prevalent that the public would think that the original, authentic user is the copyist.

Ivy April 27, 2007 at 1:00 pm

If you don’t defend your copyright you could unfortunately lose it. It seems the easiest thing might be to just contact them and explain the situation, then see if they can’t do something to remedy it. Then knit something for the KAL.

j. April 27, 2007 at 2:12 pm

It is actually harder than you think to lose your copyright. To outright lose copyright, you pretty much have two choices: you can let the copyright expire, or you can deliberately dedicate the work to the public domain.

Failure to enforce your copyright doesn’t cause you to lose your copyright. You may lose the right to enforce your copyright against a particular infringer, for example, if you do not take action against the infringer within a given period of time (a limitation period may be set by statute), or if your behaviour leads the infringer to believe that you are permitting their activity (quaere whether the space of a couple of weeks in blogland is enough time for this to be the case; how long does a file need to be loose on the ‘nets with the copyright owner’s knowledge before that knowledge can be deemed tacit permission?); but this does not necessarily mean that you’ve lost your right to enforce the copyright against other parties.

I don’t mean to contradict Ivy’s conclusion, which is to do something; it’s just that the consequence of inaction is not necessarily so dire.

(OTOH, the consequence of not enforcing your trademark rights is more dire.)

Andrea (noricum) May 2, 2007 at 2:30 pm

Not cool. They probably decided (incorrectly) that you had used some sort of free image library, and copied. (It’s startling how many people think all images are free.) However, even though it’s probably an honest (alhtough unthinking) mistake, it’s still a mistake. I would politely let them know they had (unintentially) stolen your image that either you made or paid to have made or was given to *you* and not them… whatever the case was… and that stealing was not nice, no matter what cause it was for. And if they continued to use the image, then that goes from unintentional stealing to intentional stealing, which is even worse.

Gah. I’m not phrasing things right. Basically tell them (politely) that you think they made and honest mistake in stealing your image, and ask them to correct it.

Josi May 3, 2007 at 1:21 pm

I don’t think a “good cause” has any added moral authority that allows them to steal… and… I’m fairly reluctant to believe that no one knew what they were doing was wrong (but, instead, probably justified it by the “good cause” clause).

Because here’s the thing: all they had to do was ask. I am highly highly reluctant to allow anyone who didn’t have the decency to ask any ipso facto permissions.

I realize, however, that you might be caught with publicity issues, and not wanting to come off as a meanie-poo-poo-head – but as far as I can tell, that’s what always keeps a lot people from protecting their own intellectual property. Extending them the benefit of the doubt, while certainly gracious, seems more diplomatic than anything else.

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