Wine-Searcher.com Photos

[nac]

Some time ago I posted a TN for Churchill's Fojo 86, which included some photos.

Recently spotted this on Wine-Searcher.

The image being used is clearly from one of my photos.

Whilst I don't have a problem with this (in general), it's been overlaid with their text (as if to show ownership), and their website terms of use seem to suggest that everything on their website is their property.

Thoughts from my learned colleagues?

[Doggett]

Contact Wine Searcher, assert ownership and rights to the picture and ask for picture royalties. This is likely to be determined by traffic to the page, and with the wine in question it is likely to be a large payout

On a serious note though, their response would be interesting.

[PhilW]

I agree it's definitely your image, cropped. It hasn't come from the VPID because it's still in my (long overdue) update, so it can only have come from TPF assuming you didn't post it anywhere else.

I don't know who/how images are loaded onto/by wine-searcher. I suspect someone who owns a bottle or case has simply googled it and found your image on TPF and uploaded it as a photo of that wine.

I agree I wouldn't be happy if they were claiming ownership - though I'm not seeing that - in which case I'm sure they would remove it if asked. How are you viewing the image? I'm not seeing any overlays etc.

[M.Charlton]

You own the copyright in the picture you have taken, because copyright exists automatically. However, there are exemptions to seeking permission from a copyright owner to use their work. These exemptions relate to fair dealing purposes, examples of which relate to criticism/review.

Importantly, though, the person relying on such an exemption should sufficiently acknowledge your work (unless it’s not practical for that person to do so).

You could therefore request that your work be acknowledged.

[JacobH]

I don’t think any of the exceptions to copyright law would apply here. If I were that bothered about it, I’d send them an email asking them to take it down. Someone did an image search for the wine and your picture came up, I would have thought. It sometimes happens to me but I am pretty careful only to repost pictures from producer’s websites (on the basis that whilst it is still breach of copyright, they are unlikely to object too much since they have them taken for publicity!).

My new precedent for such letters is this letter from Peter Paterno. A model of clarity!

[jdaw1]

My new precedent for such letters is this letter from Peter Paterno. A model of clarity!

I like the letter. But it has three faults.

• It does not give a date by which action is to happen. “Et payez!”, specifying neither amount nor date, can’t be unambiguously breached.

• Does the publication of the last ¶ of the letter, “so damn ugly”, admit of a libel action?

• At the end of ¶1 is a good example of why the British punctuation convention is superior to the American.

[JacobH]

Those are very fair criticisms! (Although I somehow don’t think this was sent purely for the purposes of obtaining payment...)

• Does the publication of the last ¶ of the letter, “so damn ugly”, admit of a libel action?

This is quite an interesting point, although since it’s an American letter, I would have thought the chances of it being caught by US libel law are pretty low due to their greater emphasis on freedom of expression than over here.

Anyway, from the English perspective, I would have thought both the “so damn ugly” and the “but you already earned [eternal damnation] for those Garfield moves” would potentially be actionable; the latter as an innuendo rather than an express statement. However, I think there are the following problems:

a) We don’t know how this letter ended up online. A necessity ingredient of defamation is publication which means communication to a third party. If the recipient was the one who published it, I don’t think it would be actionable.

b) Under the new-ish law, the recipient would need to show that the statement caused serious harm to its reputation (s.1 Defamation Act 2013). It might struggle with that.

c) The comments could potentially amount to a honest opinion.

The real problem with sending a letter like this as an English lawyer would be that our über-active regulators would probably find it was inappropriate...