So What Can You Do When a Company Steals Your Photograph and Uses It For An Advertisement on Facebook? Apparently Not Much

I do love technology

A few weeks ago Veronica Belmont alerted me to a photograph that I’d taken of her that was being used as an advertisement on Facebook (see above). Veronica wasn’t very happy with her likeness being used to promote the company Wireless Emporium and also pointed out that my photograph (which is not licensed for commercial use) was also being used without authorization.

At first I wondered if this was just part of some sort of Facebook rights grab. I’d heard that Facebook can use your photos in advertisements unless you specifically opt out of this — but the thing about this photo was that neither Veronica or I had actually ever uploaded the photo to Facebook. (By the way, if you want to opt out of Facebook using your photos for advertisements you can do that here like I did.)

So I concluded that the only way for this photo to get into a Facebook advert would be for someone to steal the photo and make the advert and upload it and buy space to promote it on Facebook.

Of course the first suspect that I thought of was the company that was actually being promoted in the advert, “Wireless Emporium.” After a few tweets about the advert, one of the company’s representatives Greg Daurio, who seems like a very nice guy, got in touch with both Veronica and I. We traded a lot of back and forth emails and he ultimately provided me the following statement below on their position on this unauthorized photo use:

“About two weeks ago we here at Wireless Emporium noticed a bit of chatter on Twitter regarding a Facebook ad that was promoting our company. Unfortunately, the chatter was of the negative variety, as the model whose photo was used in the ad (Veronica) and the photographer who took the picture (Thomas) hadn’t given permission for that image to be used.

In terms of people power, Wireless Emporium is a relatively small company with less than 30 employees. In order to stay competitive, we outsource a portion of our SEO efforts to professional firms. While we do our due diligence to make sure we only do business with reputable firms, unfortunately, one of the firms we contracted wasn’t living up to their end of the bargain.

After doing some investigating, we concluded that this firm tried to leverage the popularity of Veronica in the tech community to grow our brand awareness without her permission and without consulting us before moving forward with the ad. Unfortunately we have no concrete evidence that this firm indeed was the one responsible for the rogue Facebook ad. Nonetheless, within 4 days of finding out about the ad, we terminated all business relationships with this SEO firm based on our internal investigation.

We are extremely apologetic to both Thomas and Veronica and appreciate their patience and understanding while we investigated the matter internally. We are also thankful that this was brought to our attention. It is extremely important to everyone here at Wireless Emporium that we grow our business in a moral and ethical way. And when we discover that one of our partners isn’t following those same guidelines, it is important that we act swiftly and accordingly.

Lastly, we here at Wireless Emporium would like to thank Thomas and Veronica for allowing our voice to be heard on this matter. They certainly didn’t have to do that. We wish both the best of luck moving forward.”

I don’t know very many people at Facebook, but I did put a Facebook message into a fairly senior person there to see if he might be able to help but never heard back.

As far as I’m aware there is no real mechanism for a photographer to use to get Facebook to tell you who paid for an advert illegally using your image. I don’t know the name of the alleged SEO company that stole the photo and I’m not sure that there is ever any way that I will know. Such is life on the web for photographers.

Anyone have any thoughts or advice on a situation like this?

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27 comments on “So What Can You Do When a Company Steals Your Photograph and Uses It For An Advertisement on Facebook? Apparently Not Much
  1. Dustin Finn says:

    My request would be to have the information for the SEO Firm and see if they’re as nice as the Wireless Emporium people. I mean they go out of their way to tell you they are a small company, but then out sourced work to a company that remains nameless.

    Yet that company doesn’t have any skin in this because their name is never mentioned…

    This just sounds like all the other times someone steals a photo or a blog site or anything – where they blame the “Web Developer” but never actually name the web developer at least provide their name to the people who own the said photos or blog layout/text.

    In the end, Wireless Emporium could extend an NDA to Veronica and Thomas stating that the Wireless EMporium people used “Such and Such” firm for SEO and support, the NDA would be that Thomas and Veronica do not go public with that information, but to use that information to file a request with firm for what was done with these said images…

    In the end, we’re all screwed. Wireless Emporium used a company for SEO help that never asked Wireless Emporium for their opinion before running an advertisement – Really ?

    I’ve worked for A LOT of small companies before I worked for a huge corporation… Any time at a small company, if something was being done and going to print or to advertisement or google ads… The small company was ontop of whats going on…

    Good Luck Sir..

  2. Rudy says:

    Legally, it is still the responsibility of the wireless company – Getty gets people this way all the time.

  3. Vinny says:

    A perfect example of how a polite request and amicable behavior can resolve a touchy situation. Can you imagine what would’ve happened if TH went in, guns-a-blazin’? Nothing.

    Nice to see some people (in this case on both sides) have some integrity.

  4. Nigel says:

    Thomas – an interesting read and glad you got it sorted….. actually it’s quite an interesting challenge, and one which at the moment I think photographers are loosing.

    I wonder, rather than rely on friends and family to alert you to the illegal usage of your photographs is it possible to embed something in the image (not a water mark as such) which you can then search for.

    Obviously would only work for online work but would be a start ..

    Nige

  5. Tom says:

    When you upload photos to your personal profile, you have to mark a checkbox asserting that you have the rights to upload the image. I don’t see anything similar on the “Create an Ad” page (http://www.facebook.com/ads/create/).

    As a step towards dealing with future infringements, it might be helpful for Facebook to modify this process to make advertisers explicitly take responsibility for the photos they upload.

  6. Don says:

    This is what the discovery process in litigation is for. If you wish to take issue with violation of your copyright or Veronica wishes to pursue violating her right of publicity then the next steps are to file suit. At that point Facebook can be compelled to identify the purchaser of the offending ad (though I agree with Rudy – the ultimately responsible party here is the company being advertised) and this can move forward.

    Good on Wireless Emporium for standing up and dealing with this, but that’s not a blank check releasing them from responsibility. If you decide this isn’t enough then they’ll have to keep digging and find out whose neck to hang this around. If they’re lucky they didn’t have a contract with the responsible party that limits indemnification.

  7. JeffPHenderson says:

    Seems to me that Wireless Emporium just admitted that they were at fault for this due to the fact that the un-named SEO company they hired apparently posted the ad. The fact that they fired the SEO company is a nice gesture, but it does not release them from their liability. They are polite in their response to you, but they were also doing damage control. Technically, someone owes you and Veronica compensation for use of your photo and her likeness. A letter from an attorney seeking compensation would probably get everyone’s attention. It’s not your problem to go after the SEO company, it is Wireless Emporium’s problem to recover damages from them.

  8. Kendrick says:

    Thomas, unfortunately this type of thing is extremely common and the only way things will change is if it gets too expensive when you get caught. A punitive damages sort of thing. And since you have a large library of images out on the net, you want people to be extra cautious next time they think of stealing from you.

    I’d send them a large invoice for unauthorized usage and then be willing to accept a reasonable settlement. A few grand each should be enough to compensate you and Veronica, and also cause them to think a little harder about stealing images in the future.

    Honestly it doesn’t matter to me that they outsourced this. They are still at fault and they should be more than eager to settle this before you actually file a suit.

  9. Michael says:

    Register the image and sue for infringement, you still have 60 day. Do not send an invoice that will torpedo the effort. You both can contact Ed Greenberg (a NY Lawyer). But you need the registration to get into court.

    Bio:Mr. Greenberg has litigated and continues to try cases involving lost photography, copyright issues, image licensing, publicity/privacy rights and other intellectual property cases in the federal, state and appellate courts. He represents hundreds of photographers, models, photo representatives, model agents, stylists and performers world wide.

  10. Michael: My understanding is that the registration has to be made within a limited time after the photo is published, not after it is misused. If this photo was not registered within the required time after it was first published — that is, posted on Flickr — the registration will not be valid.

    IANAL, but that’s my understanding from the research I have done.

  11. Ima canadia says:

    Sue Mark Z. You’d be surprised how fast facebook will get ahold of you when you threaten them with a $500 million lawsuit….

  12. Pete says:

    How about telling your story to the podcast “This Week In Law” – whilst its not a help line, the show is about stories where tech developments come into contact with the law. The host is a lawyer, and so are most of the guests, so if it comes up for debate they probably have wise words to say about it.

    Its on the TWiT network (Veronica can tell you about them), here is their facebook page:
    http://www.facebook.com/thisWEEKinLAW

  13. Thomas Hawk says:

    Ima, I doubt there’s any case to sue Facebook here at all. They can’t really be held responsible for advertisers who use stolen material in their adverts. It would be nice if they could help us get to the bottom of who actually uploaded and paid for this ad, but I don’t really blame Facebook in any of this at all.

  14. Tizio says:

    Beside the fact that facebook isn’t even able to delete photos uploaded that users delete. (I’ve a photo that is still accessible after 2 years using direct link inside fb content network)

    Anyway, for this particular case…

    1) Wireless Emporium is anyay responsable. Not guilty but responsable and eventually they can decide to turn over to SEO firm…. that in turn eventually could turn over to a consultant etc…

    2) In Italy there’s a strong privacy law. So you can ask to a company to have a report of all the data they have about you (in that case the image), how they got that informations etc etc…

    Don’t know how it works in US but may be there’s something usefull in that sense?

  15. Raymond says:

    I hope you decide to pursue this further. Every time honest people let something like this go, we all lose.

  16. Justin says:

    How did this photo get online in the first place?

    Exactly…..Thomas.

  17. Justin says:

    You F’ed up in the first place by posting it.

    Are you going to sit there and tell the public that you were not aware that this could happen or are surprised by it?

    That would sort of contradict….you.

  18. Thomas, I think the easiest way to avoid image theft is to place your name, logo or watermark on the picture. People will think twice about using your images!

  19. Jonathan says:

    To alert Facebook you could have tried: https://www.facebook.com/legal/copyright.php?copyright_notice=1 for takedown, but really its hard/not clear how to do this for ads. It maybe still worth reporting it as a way to alert Facebook to the issue?

  20. Patrick says:

    It doesn’t necessarily hurt Shawn or Veronica other than not getting compensated. I never saw the ad until it became an ordeal. I doubt the firm would have published something without proofing the ad with this company. My guess is that someone from the small company okayed the ad and this is why they aren’t mentioning the firm’s name cuz they could probably confirm my gut feeling.

  21. Patrick says:

    It doesn’t necessarily hurt Thomas or Veronica other than not getting compensated. I never saw the ad until it became an ordeal. I doubt the firm would have published something without proofing the ad with this company. My guess is that someone from the small company okayed the ad and this is why they aren’t mentioning the firm’s name cuz they could probably confirm my gut feeling.

  22. Veronica says:

    Justin, while I’m sure you’re just trolling for trolls sake, I’m pretty shocked that you would imply that photographers who publish their work online should have no legal recourse for their copyrighted images being used for commercial purposes without their consent.

  23. Mike B says:

    Sue the wireless company for copyright infringement. It will be up to them to decide if they want to name an additional defendant. They received the benefit of the illicit use and even if it was the fault of the advertiser, that advertiser was acting on behalf of the wireless company as their agent.

    My suggestion of steps; send them a settlement bill. Say you’re willing to settle the amount for x amount (maybe $500). If they refuse, file a suit for copyright infringement.