Tom-
You may want to check out this auction http://cgi.ebay.com/ws/eBayISAPI.dll?ViewItem&category=98084&item=7148564838&rd=1&ssPageName=WDVW#ebayphotohosting
It looks identical to the pic you have on BikeSport. Looks like someone got their account jacked.
Auction looks legit to me. He did jack Tom’s pic off the website though. Tom may want to send him an email.
Hello,
Is it really unethical (or actually illegal) to use a picture off the net in an E-bay ad. Assuming the bike in question is really for sale and the ad states that the picture is not of the actual bike , just the same model, whats the harm?
Styrrell
Copyright infringement, intellectual property. It pretty much is the same as illegal downloading of music, the artist (in this case Tom) isn’t getting paid for the work he did, but someone else is benefiting from it. Now I will admit that we all probably do it, and Tom has had it happen so often I’m not sure he cares anymore. That still doesn’t make it right.
Well I’m off for a very windy bike ride.
Yes. It’s illegal, as the copyright in the picture is owned by someone else. Technically, the copyright owner can sue you for both actual damages and your profits earned from the illegal use of the copyrighted work. Alternatively, the owner can collect statutory damages bewteen $750 - $30,000 (or up to $150,000 if the infringement is found to be willful).
I’d say its ok to use someone elses pic if you specify that it is a pic of the model and not the actual bike. BUT, wouldn’t you use the pic from the Cervelo Site? Also, if you were selling a bike (esp a bike of the same caliber as a P3) wouldn’t you list the size of the bike and give at least some decent description?
Jim:
Just curious as to why you think it looks legit. It’s a 3 day auction, with no size listed and a “borrowed” photo. Those would seem like red flags to me.
JC
“I’d say its ok to use someone elses pic if you specify that it is a pic of the model and not the actual bike. BUT, wouldn’t you use the pic from the Cervelo Site? Also, if you were selling a bike (esp a bike of the same caliber as a P3) wouldn’t you list the size of the bike and give at least some decent description?”
It’s not okay (i.e., it’s still technically illegal) unless the copyright owner has given you permission.
Wow, are you implying that Tom has copyrights on all the photos on his website?
Hello,
Thats the crux of my question. Two things make it different in my mind. One music is copyrighted and two Toms pictures are probably not. Also the amount of work involved is less. How much is someone stealing from Tom by cutting and pasting a fairly mundane photo. Also Tom doesn’t sell his photos or generate revenue from his website per se.
Again I’m just curious if its actually illegal, not really debating whether it should be.
Styrrell
I’m a lawyer but don’t let that fool you into thinking this is right - as I understand this copyright vests automatically in the author of any original work be it book, music, photo whatever. Trademarks and patents have to be applied for or registered but copyright doesn’t and the (c) sign is just a reminder.
Feel free to tell me I’m wrong and should get down the job shop.
No. I’m assuming that the pictures of the bicycles on his site were taken by Tom or someone working for Tom for the purpose of being displayed on his site. Unless there’s an agreement to the contrary, that would make them “works made for hire,” which would vest copyright ownership in Bikesport (and/or Tom). Absent authorization from Bikesport, the use the pictures to sell other merchandise is a violation of the exclusive rights outlined in 17 U.S.C. § 106.
Of course, if Tom is using someone else’s copyrighted pictures (presumably via license arrangement or other authorization), then it’s not his call. Also, I don’t doubt there are likely pictures on his site that he doesn’t own, but is licensing the use thereof. The advertisements come to mind. I doubt Tom owns the picture of the book “Going Long” and is using it with permission.
I’m just a lowly law student, but I have some knowledge of this area. Smtyrrell99 is most likely right. It is most likely that Tom does have the copyright to the pictures on his website. But the person is not selling the picture, they are selling the item in the picture. Is it infringment, yeah, probably. They are using the picture to advertise something for sale without compensating the owner of the picture. Would a court of law laugh at you if you brought a case like this to court. Yes. The circumstances don’t add up to a ton of harm to Tom. Just my $.02
LuckyLeese is correct. Copyright vests automatically in the author of any original work, and need not be registered with the Copyright Office… although there are significant legal advantages to registration.
A case like this would never go to court. It would most likely settle with the infringer agreeing not to infringe. It is important, however, for businesses to protect their exclusive rights in intellectual property, or they can lose their effect.
Consider trademarks… like Xerox. Xerox went to a lot of time, $ and trouble to make sure people stopped genericizing the term “xerox” (i.e., “Just xerox it for me and put it on my desk.”) because they may have lost their trademark in the name. “Aspirin” was a trademarked name until it became generic.
While failure to assert copyrights may not result in them becoming “generic” in the same sense as trademarks, there are issues of estoppel, which can result in similar effects, if the owner doesn’t enforce his/her rights.
EDIT
FWIW, use of the image is an infringement, even if he/she isn’t selling the image itself. It may or may not be laughed out of court.
Actually, given that the ebay seller is competing with Tom by selling a product that Tom carries, there is some harm being done.
Just curious as to why you think it looks legit. It’s a 3 day auction, with no size listed and a “borrowed” photo. Those would seem like red flags to me.
I retract my previous statement. I just skimmed the auction, it looked good on the surface. I should know better. All previous items bought by this seller were of a collectible nature such antique toys and entertainment collectibles. Not the profile of the average P3 rider.
This happens all the time and there isn’t much we can do about it.
Tom:
I agree that there isn’t a whole lot you can do… but you should (if you are not already doing so) each time this happens, send an email to eBay identifying the photo, claiming ownership, and asking that they take it down.
Just sent an email via the “ask seller a question” looking for more—or any—details. Be interesting to see what kind, if any, response I get back.