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The Case of the T Rex Birthday Card
- Gaynor Humphrey
It was our agent in Scotland who in January first noticed that the T Rex birthday card in her local supermarket store bore a startling resemblance to our knitted T Rex.
Once we got over the shock we contacted Sainsbury's and explained that they were using our image on one of their Birthday Cards. Naively we thought that a civil conversation would ensue and the issue would be resolved.
Every business encounters issues as they go along but as a SME we simply do not have the time or the inclination to make mountains out of molehills. All problems are resolved as quickly and as amicably as possible because that's the most efficient and customer friendly way.
However we reckoned without the inbuilt intransigence of a large corporation so our first friendly approaches to Sainsbury's were rebuffed and/or ignored. It didn't matter whether I called, emailed or approached via social media quite simply Sainsbury's responded with silence.
Luckily for SME everywhere there is a fabulous organisation called ACID (http://www.acid.uk.com ) and with their help we were able to contact a lawyer. It might just be coincidence but as soon as we "lawyered up" we got our first contact from Sainsbury's. A Dispute Resolution Lawyer emailed as follows (obviously paraphrased but you'll get the gist)
"I understand that you have made contact with our social media team regarding our dinosaur greetings card (that's one way of putting it!) I have contacted the supplier of the greetings card and they have confirmed that they bought a licence for use on greetings cards from Getty Images. I attach a link to the photo on Getty Images: http://www.gettyimages.co.uk/license/104573962. "
If you can be bothered to click on the link it says very clearly "Editorial Use Only" across the image. In Red. Twice. When you go through the purchasing process it says it again, and then again.
Finally you have to say what you are using the image for, and one of the uses is Greeting Card. If you select this Getty Images tells you clearly that the image is not licensed for use on a greetings card.
Obviously Sainsbury's Dispute Resolution Lawyer was too busy to check this as when I pointed it out to her I was passed straight over to Sainsbury's supplier. I would like to say that I was promptly passed over but nothing about this entire dispute warrants the word prompt!
So now I'm talking to the Creative Director of the Supplier, and this is the email she sent (paraphrased again).
"It came to my attention earlier today that we unintentionally published your dinosaur image when really rights were only available for Editorial purposes. Please let me apologise, we accept that the unfortunate mistake rests with us. We regularly license images from Getty. In this instance, our librarian missed the Editorial clause and Getty also failed to alert us to it. Nevertheless, we should have been more thorough in checking the rights. As a result we have reviewed our internal process and an instruction to remove the item from sale and destroy any stock left has been given. I hope this meets your satisfaction, if you would like to discuss further please don’t hesitate to contact me."
So that's that then? Nice try Sainsbury's Supplier!
Much as I appreciate the card being withdrawn we were somewhat bemused by the assumption that the matter was now closed. The fact that both Sainsbury's and their supplier had profited by their use of our image seemed to be of little or no relevance to either company.
Unfortunately for Sainsbury's supplier (name on application :) )I have seen my teenager dismiss her sister in exactly the same way so this simplistic attempt to get rid of us had no chance of success.
So on the advice of our lovely lawyer we asked how many cards they had sold. The reply came relatively quickly.
"I have asked Finance to investigate the numbers but they are at their busiest time!"
By now I had a lurking suspicion that both Sainsbury's and their supplier thought we were particularly stupid. I may be fat and fifty but I suspected that the number of cards sold would be freely available to pretty much everyone in the company and not treasured secretly by Finance like a precious jewel.
We tried again, and this was the response.
"I appreciate your frustration. Our account manager is getting the info to Finance as we speak. As a creator and defender of IP myself, I truly sympathise with your position. I would like to reassure you that we are taking the matter very seriously and we are responding to the best of our ability. I would also like to reiterate that this unfortunate event was the result of poor administration, there was no malice or questionable ethics involved."
My suspicions that they thought we were stupid were completely confirmed. Rather than risk being patted on the head and told to run away like a good little girl we decided that we would simply go to small claims court. We were not taking action to recover copyright because that would be too complicated but to claim back the time we had spent chasing people for responses and the money expended on legal advice. Much simpler and falls under the easy to use small claims court.
Rather than go through the supplier we also decided with the help of our friendly lawyer (with whom I was a little bit in love with by this stage...) that as Sainsbury's were the company who ultimately sold the card we would take action against them so we sent a letter warning of our plans. At which point we were passed on to the Business Unit Manager.
"Just coming back to you on the T Rex card after speaking to our & Sainsbury’s legal departments.....The image was bought in good faith from Getty and it was a simple admin error.... We have halted shipments & destroyed all stock in our warehouse & removed from Sainsbury’s stores. As a gesture of good will, and to settle the matter we would like to offer you...."
And that was that. Almost 3 months of nagging, mithering and chasing up people who thought we were naive fools. What we got was enough to go out for a nice evening and some valuable lessons.
We learnt that copyright is not as simple as you might think. The photographer who took the picture of our T Rex and sold it via Getty Images was completely within his rights to do so. Similarly when Merlin Entertainment use our T Rex in their TV ad they are also completely within their rights to do this without consulting us/paying us anything. It is only if you use the image to make money, like putting it on the front of a greetings card, that copyright is an issue.
You also have to be able to prove that the product is yours. This is relatively easy with a knitted T Rex, especially as we have the original briefing notes from our first Knitted Dinosaur Meeting. However if you design things then the lawyer's advice is to keep your notes so that in the event of a dispute you can prove that the original idea was yours and it wasn't a factory coming to you with an idea.
So our advice if it happens to you?
- Don't think that they could care less. If IP is the back bone of your business join ACID now, don't wait for this situation to happen to you.
- Don't think that you are going to get rich out of it. Copyright laws are complicated and are not concerned about the morality of the situation. As a rule of thumb you may be entitled to 5% of the turnover of a product but thats just an estimate.
- Don't think that they can get away with it! If you have the resilience to keep plugging away you can stop them. Our lovely Lawyer recommended a sustained social media campaign, but we found that a Small Claims Court summons was quicker if you don't mind getting down and dirty.
Best Years Ltd