Copyright of photos of our products (Wedding Cake) taken by ex-customers?

[curious_gay_teen2008]

I need a few pointers as to my rights (as a small businesses) in regards to photographs of our products taken by another person.

The individual who has taken numerous photographs (at least 100) is no longer purchasing with our company but is still trading. Their reasons for ceasing trade with us were amicable. They simply chose to find a cheaper supplier.

As a wholesale bakery to third-party retailers (Cafes and Restaurants) who sell them on to them directly to the public. and has recently

- Placed virtually all of our products sold to them on their new website and Facebook Groups and at the moment (even though they are no longer selling our products, they are using images of the cakes we have created, taken by themselves and suggesting that is the product their customers are buying.

We are a wholesaler - and sell to businesses only, we have no official "trademarks" or logos on our products, however the calligraphic iced writing is done by hand and is very distinctive. He is no longer selling the product he is advertising. After all, a rival customer of theirs may end up selling the precise products the individual in question no longer sells, this would damage our trading relationships?

A small number of these were taken by themselves with our knowledge at our premises (when they sometimes would collect their orders). This was never challenged as we believed it to be "good faith" this was not a formal or written agreement. I'm not sure if being taken on our private property has additional rights? I understand the actual cakes produced by us are (in U.K law) our "Artistic Works"?

I'm sorry if this sounds confusing, it's rather straight forward. I'd appreciate your thoughts.
Where Do I stand legally?

Could were to write and request the former customer remove the photos of our products from his website and Facebook pages? and what next if they were to refuse?
(UK Copyright and Photography, Food, Cakes, Deserts and Wholesale or Retail litigation rights and law questions)

[.Jerry.]

Not a lawyer here. I'm much more familiar with music copyright, but I think this is more along the line of trademark law.

Anyway, until someone chimes in, or you get some legal advice, I would send them a formal letter via registered mail requesting that they cease from using pictures that were procured on your premises of your products. You can let them know that, that it is a gentleman's agreement that you allowed it to occur while they were reselling your products but that the terms have now changed.

I'm sure there something in the law that would back up that position. Best of luck.

[Secret Kat Power]

Its a really interesting situation you have brought attention to but sadly I am not a lawyer either so I can only offer my opinion, however from what you say you are based in the UK and I would say that under the circumstances, if this situation had occurred on American soil that the company who you suggest may be infringing upon your rights would likely have much to be concerned about in the form of an expensive litigation!

Its difficult to speculate where you stand as the photographs themselves have been taken by the company in question, so they hold the rights to their photographs, however as the subject matter is the creative work of yourselves, and there is no written agreement that you have given them express permission to reproduce your product, then its indeed possible that they are infringing upon your creative works by publishing the content online without your explicit written permission. There is no evidence of any verbal agreement taking place so the value of any previous arrangement is open to conjecture, however this situation is no different to someone say photographing an artists work then redistributing it in a magazine without seeking formal written permission; which would undoubtedly leave the publishers facing a pricey law suit for Copyright infringement! However I'm a creative so I know nothing about where food design fits into all this, but I fail to the see the difference.

My best friend is a chef/restaurant owner and has recently got into cake design himself (really abstract not fancy material such as realistic heads from films etc) and the reference material that he shows me which inspires him (established food artists in this area) sell their works for literally £1000's of pounds and they are undoubtedly creative artistic works in their own right, so I fail to see why they would be treated any differently from any other artistic work (i.e. such as sculpture etc)!

As I say however this is just my humble opinion, so it has no value other than speculation really. But I definitely strongly feel that you should contact the company and ask them politely to remove the aforementioned materiel immediately (initially) and also to seek professional advice about this matter in the mean time. Naturally there is much you can find out for yourself by examining the Copyright information available in the public domain and its possible that organizations exist who may be willing to provide you with free independent advice (Creative Commons or some such like - see link below)?

Regardless I think it is a very good idea to contact them formally and ask them to kindly remove the aforementioned content as a first port of call, as the mention of the potential for legal action resulting from creative infringement if they fail to comply is likely to get their attention. Anyone with any ethics knows that advertising another companies product on their website without express permission shows some serious audacity! You mention that you parted ways in an amicable fashion, if they respond promptly and remove the content all is well, but if they continue then you have little choice considering that it could have financial ramifications with regard to your business. Also I wonder about their position with regard to false advertising selling someone else's product with your creative works advertised. I sincerely hope that the situation is brought to a swift conclusion and wish you all the luck in resolving the situation, I'm sorry I can't be of more assistance!

[john]

To be honest, I don't know how good you are at producing cakes...

I'd consider taking my business elsewhere too, your English isn't quite up to standard...Sorry.

My personal take on your question is...it sounds like 'sour grapes'...it's OK for your customer to take images and promote your business...you didn't seem to mind about that much.

When the images are promoting another 'baker' you are quick enough to raise your grievance...at the end of the day you might have a case for 'misrepresentation'...I personally wouldn't make a 'fuss'...I reckon this episode might come back and 'haunt' you...if your standards are high then it might be difficult to recreate your 'edible masterpieces'...it might be worth more of your time and effort considering how to raise your game than thinking about taking 'legal action'.

[B K]

You may think it's straight forward, but it's not.

It's not just a case of them using images of your cakes (which may indeed be subject to copyright law), but they will also own the copyright of the images - as all photographers do. And you gave them permission to take the photos on your premises, so they certainly did nothing illegal at the time.

They may indeed be in breach of copyright, not for taking the photos, but they might be if they are copying your designs or they are getting another supplier to copy your cakes designs.

Of course if they are using the images to sell their products (or someone else's) they may also be in breach of the UK Trades Decription Act which covers misleading advertising.

I'm not a solicitor, and you definitely need one. You need to get legal advice on this before you do anything. It's more complex than you think.

Good luck.

[joedlh]

You asked this question in the wrong forum. You need to get advice from an intellectual property rights attorney. Photographers know about copy rights for photos, but not for cakes. The person who took the photos of your cakes owns the rights to those photos. Whether or not one can copyright a cake is the question that you want answered.

[deep blue2]

I am not a lawyer but I am a photographer & I do have some experience of Trading Standards law in the UK.

The photographer(s) who took pictures of your cakes own the copyright to those images and they can post them wherever they wish.

However, if he is using those photos to represent his business stock when he is no longer selling that stock, then that is misrepresentation, not a copyright issue.

I suggest you contact Trading Standards & point this out.