Giclee printing, copyright infringement liability if customer misrepresents work

[darlingm]

Been wondering about copyright infringement for the giclee printing business.  Such a fun gray area.   

I print artwork reproductions and photographs, primarily for clients who sell their work at art fairs and in galleries.

I occasionally see a post on LL about some wanna-be photographer who ripped someone else's photo off, and put it in their portfolio.  Just saw a case in the news about Walmart refusing to print someone's personal holiday photos, because they said they were too good not to have been done by a professional (who would hold the copyright.)


I have each customer sign an agreement that says they are the sole copyright holder, and they understand it is their responsibility to follow copyright law and are solely accountable for any copyright violations.  As anyone with some legal experience knows, waivers don't trump law, so they only mean so much.  If I was sued, I could sue my customer in turn, but it's not like they'd be able to pay.

So, what would happen if a photographer gave me an image, or an artist gave me a painting, and said it was theirs, when it was really someone else's work?

I'm not talking about a wink-wink nod-nod situation with some signed contract.  That's not my game.  If I ever believed someone might be asking me to violate a copyright, I'm going to need more convincing.  I'm talking about an honest what-the-heck I thought that guy made that situation.

There's certainly cases of print shops being sued for copyright infringement.  Kinko's was sued years ago for infringement on educational materials.

I know it's one of those one in a million situations that will never happen, but wondering if anyone's heard of any legal precedent in the US for this situation.  The Kinko's case isn't exactly on topic.  They had good reason to know there was infringement, since they were copying pages from different books to be sold to college students as course packets.  Don't think they had a reasonable expectation that the person who brought them the book was the copyright holder.

Probably need to look into an insurance policy, but that's probably out of budget for now.  (General liability policies don't cover this.)  Wondering your thoughts.

[Rob C]

Difficult one, in any country. I'd have thought that in a legal situation, the ability to prove that you took all the possible precautions that you could have taken would remove you from liability. Otherwise, all commerce could grind to a halt from inertia. Maybe that's the real reason for the crisis: everyone's scared of doing anything in case they get sued!

But, lawyers having the remit they have, I guess one must be prepared for anything in this world, however bizarre. Maybe the best bet is to pay a specialist for a short (very!) consultation and advice on how you might protect yourself? I wouldn't place much faith in online advice as you may get here, unless from someone who has experienced the same situation right through court.

Rob C

[framah]

At a minimum, if the painting has a name on it and it is the same as the person who brought it to you... I think you'd be good to go.

I did have one guy who brought a painting in for me to shoot and print and while talking to him about it, i began to think he wasn't the artist. I casually asked for his name for the invoice and it wasn't the same as on the painting. i called him out on it and he said he had bought it and wanted to make prints.

I refused and tried to explained to him the reasons which is about the same time his brain apparently shut down as he kept insisting that he  should be able to do what he wants as he bought it and it is his.
I told him to get a release letter from the artist and I would be happy to do it. Never saw him again.

Not much else you can do about those who are intent on fraud and deceit.

[Deardorff]

Why not check with ASMP or PPA or similar professional association. They have attorneys who deal with this and most likely have written about it.

Taking all normal precautions the suggest will be the best way to get ahead of the game.

We know in the US anyone can sue anyone else at anytime for anything. Having a signed release would go a long way toward getting yourself protected. The signed release produced will show you took efforts to make sure you were on the up and up.

As for companies that go after infringers. Check out Olin Mills studios. They do go after shops that copy their portraits without permission. Funny part is that if one contacts them they will usually get permission as Mills studios don't keep the negatives/digital files more than a few months.