I posted a picture on my website that had a copyright without the designers consent. What to do now?

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I design couture dog clothes and posted a picture of a sample on my web site without the designers' consent. My over site. I didn't see the small print at the bottom of the design. I have not profited from this and I took the picture off immediately after being notified of my error. There was no ill intent meant on my part. I did send the designer an apology letter stating that the picture would be removed immediately and humbly apologized. What do I do now? She wants a $3000.00 cashiers check by August.. I told her that my husband has been out of work for 3 years and I was putting my sewing talents to work to try to earn extra money for the family. Please advise. Linda

Attorney Answers

3
Daniel Ballard ·
The below does not constitute legal advice, does not form an attorney-client relationship, and should not be relied upon to take or refrain from taking any action. I'm confused. You design clothes for dogs (which, in and of itself, is odd to me but I understand that process). What I don't understand is why you copied a photograph of a dog wearing clothes designed by someone else and then published that photograph on your website so that consumers would assume you designed those clothes. And yet you now claim that you had no "ill intent." Hmm. While certainly not virtuous, your conduct may not be unlawful. It depends on what it is that's being complained about. If the other designer is complaining that you "stole" his or her clothing design then you have a very good defense because there is, essentially, no intellectual property protection for clothing designs. If, however, the other person is complaining that the photograph you published contained the image of his or her trademark and by publishing the photograph you lead consumers to falsely believe you are the source of those clothes or were authorized to sell the clothes then you have little to no defense. Likewise if the other designer is complaining that you did not have the right to publish the photograph at all (that is, if the complaint is that you infringed his or her copyright in the photograph by publishing it on your website). In short, to answer your question you need to tell your own attorney what it is that you allegedly did wrong. BTW: An apology not sufficient to remedy a wrong that was clearly wrong when it was done -- honest mistakes, sure, but not wrongs done intentionally. Moreover, everyone claims poverty to try to get out of having to remedy the harm they caused to someone else. The "don't blame me I was just trying to feed my family" defense is a moral, not legal, one. And do not think that just because you did not make any money selling the other designer's clothes that the other designer was not harmed. The right way to look at the situation is from the perspective of the victim, not the perpetrator. The facts of your case are particularly unique. I caution you against providing any additional information about this dispute in a public forum such as this one. You need to consult with your own intellectual property attorney. If you cannot afford one you should contact your local bar association and discuss with them what low cost alternatives are available in your area.
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Pamela KoslynBusiness AttorneyLos Angeles, CA ·
If you design dog clothes, but didn't design this particular dog outfit, as Mr. Ballard has pointed out, clothes, even dog clothes, aren't protected by copyright. But if you also "borrowed" the photo of the dog clothes, that photo and its copyright belongs to someone else, and you've apparently infringed it. And if the photo also includes that designer's trademark on the clothes or otherwise, you've infringed that as well. By posting it on your own website without any disclaimer that it's not yours, you've implied that those dog clothes are yours. Even if you took down the photo immediately after being caught, you may have limited your damages, but depending on how it took for the owner to catch you, you may have confused a lot of the real designer's customers and cost them a lot of business. And at the least you've promoted your own dog clothes business at someone else's expense. As Mr. Ballard pointsout, though it may make you sympthetic, your apology and your financial situation is not the owner's fault or problem. Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.
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