Court Injunction Insists Canon Italia Must Remove Elia Locardi's Image

Court Injunction Insists Canon Italia Must Remove Elia Locardi's Image

In January I broke the news Canon Italia had posted a landscape composite without credit, stolen elements, and which were taken on a Fujifilm. It garnered quite a lot of attention and Canon Italia replied, only making matters worse. Well, Elia Locardi has taken the situation to court.

I'll start by offering a brief recap of events, but should you want to read about what happened as it played out, here are the two articles that inform this one:

Canon Italy Posts Landscape Composite Without Credit, Stolen Elements, and Taken on a Fujifilm

Canon Italy Responds and the Locardi Landscape Saga Continues

For those of you who want a TL;DR version, here's a timeline as it stands currently:

10th January 2018: Canon used a photo on their Facebook page that was composited using stolen elements of Locardi's work.

10th January 2018: Fstoppers post the issue and the photography community compare the images, concluding almost unanimously that it contains elements of Locardi's image.

10th January 2018: Locardi gets in touch with Nico Trinkhause from PhotoClaim regarding the legality of the case at hand.

12th January 2018: Canon denies it's stolen and refuses all blame.

16th January 2018: Lawyers advise to send a Cease and Desist letter to Canon Italia prohibiting use of Locardi's photo in any way.

22nd January 2018: Locardi agrees and the Cease and Desist letter is sent to Canon.

28th January 2018: Canon failed to submit a declaration to cease and desist within the given deadline and Locardi's lawyers file for an injunction in court. (NB: Locardi informed me that Canon did have a lawyer of their own get in contact, but they didn't send a declaration and only wanted to talk on the phone and not in writing.)

1st February 2018: The District Court of Berlin issues an injunction in which it forbids Canon Italia S.p.A. to use Elia's photograph "Photographing The World 2 - Lesson 6 - Italy - Vatican View" in parts or as whole. In case of offending this injunction, a penalty of up to €250,000 payable to the state or up to 6 months imprisonment of the Managing Director can be set by the court.

7th February 2018: Lawyer receives the injunction issued by court and needs to deliver it to Canon Italia.

20th February 2018: Canon's German office refuse to accept the letter as they are the German office and it is pertaining to Canon Italia. As a result, the PhotoClaim team deliver the letter, in person, to Canon Italia (pictured below).

28th February 2018: The image has still not been taken down.

Copyright and photography are in a complicated relationship status. I've written on the topic many times and for everything from university syllabuses to small blogs, yet it never fails to surprise me. This time, at least, it appears to be surprising me in the right way. That is, the courts have come down firmly and promptly on the photographer's side in a case that could have wandered in the gray area for some time. However, the situation isn't satisfactorily resolved yet, and it leaves me with two closing thoughts.

Firstly, can Canon just continue to ignore this without punishment? The injunction's wording is terrifying to us small-town minnows, but for a global corporation with — presumably — a small army of legal professionals, can they just weather the storm? Secondly, I find myself still troubled by the image I posted on the Canon response article:

Greg Paul Miller, the photographer who originally stole elements from Locardi's work, has seemingly slithered away unscathed. He stole parts of a photographer's work (which he has liked and can confirmed thanks to social media), passed it off it as his own, and then had the audacity to distribute it for free and without usage limitations, thousands of times.

I've spoken to Locardi throughout this case, and since its recent developments he reflected on the larger situation:

I think that as photographers, we need to stand up for our rights — especially when it comes to companies trying to use our images for free online. We must remember that the images we create do have a value and thanks to companies like PhotoClaim.com, we have a way to fight back against image theft. If we all work together to fight image theft, maybe we can reshape the industry to once again value our images.

It's worth highlighting the good work PhotoClaim.com offer. Locardi has been working with them for nearly a year with nothing but high praise for what they do and the results they get. I hope our readers never have to use a service like this, but should you find yourself in that situation, they are a worthy port to call.

All in all, a positive resolution of sorts is in motion and honestly, I hope this case concludes as a trilogy and I'm not compelled to write how even the courts can't stop image theft. What are your thoughts?

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54 Comments

Leigh Miller's picture

The entire matter is cringe-worthy starting with the theft by Miller and the subsequent behaviour by Canon. I agree, the restoration of our industry as professionals will hinge on our standing together...

Ariel Martini's picture

The more you talk about this, the more free publicity Canon makes.

Elia Locardi's picture

I don't think this falls under the idea that any publicity is good publicity. This is just bad for Canon.

David Penner's picture

Exactly.. Im not sure why they are making such a big deal about it. They should have just taken it down and apologized when they found out what happened. Sure it would have been a bit of an embarrasment but everyone would have had a little bit of a laugh about it and moved on.

Elia Locardi's picture

I know. It would've been much easier if they would've just taken the image down.

Hi Elia,
can you elaborate why a German court in Berlin was taking the case ? I live in Berlin and I was wondering why this is the case ?
Thanks.

Great work by the way.

Paulo Macedo's picture

Elia, sent you a message over facebook. Canon Portugal is using this exact same picture on facebook. So, the cancer is spreading through southern Europe.

But they aren't the one who stole it. They got what they believed to be a valid license from the photographer who stole it and then used a third party site to distribute it. If I steal your work and give it to someone else, why should they be responsible for my theft?

Aaron Priest's picture

Elia, I hope you also have a good lawsuit brewing against Greg Paul Miller for the original theft?

Elia Locardi's picture

I'm undecided about it.

Jonathan Brady's picture

Precedents are incredibly important. Set one. Please.

So you won't go after the thief just the person who they defrauded? How does that make any sense?

Leigh Miller's picture

Do you understand the point?

Two things you need to consider before flipping EL off.

1 - It is incredibly expensive to sue for copyright infringement and the man is simply satisfied to serve notice to a very LARGE company who purports to value and respect photographers. If they were not aware of the stolen elements of the image in question, they certainly are now. An apology and immediate removal should not even be an argument.

2 - The person who stole it has already been advised of such. Hopefully he understands that any appropriation, even the smallest element such as a "sky" isn't ok. At the end of the day he's a small fish and hardly worth the $5K to haul into court.

Everyone should take it as a teaching moment (hear that unsplash??)

1 - They are aware of a claim of stolen elements. Your country may be different, but in mine we have the legal principle that you are innocent of a crime unless you prove the other person did it. Unless the photographer has gone on record somewhere admitting he stole the pictures, he is still legally saying he is the creator of the image and has full rights to license it. It is not Canon's job or responsibility to get involved in a copyright claim issue between two people. However until the other photographer is found guilty of infringing the copyright, Canon is just doing what any other company would do when someone makes unproven claims against them. Just because something looks like it might be stolen doesn't make it stolen. Only a court can decide that infringement. And that is why you go after the thief not the third party. If they went to Canon with the proof of a judgement against the photographer for the theft and Canon then refused to take it down, sure I would be up in arms and say sue canon, but as of right now Canon is just doing what any business would do and not give in to demands without legal proof.

Leigh Miller's picture

First...I live in Canada but I'm American. Also I've lived in three other countries within the "commonwealth". Second, I have a legal background though it's in family law not copyright/Patents...

Now, I still think that you have completely missed the point of the exercise.

Him filing suit and getting a judgement against the photographer who he claims stole the elements. If someone stole and licensed out something I had a copyright on to over 2000 people, I would at a minimum do a cease and desist to the photographer, but he hasn't. He has left him alone because he is after free money instead of this noble pursuit of protecting copyright. He has a vested interest in making canon look bad.

Leigh Miller's picture

I would contribute to a cloud-fund for that.

If you say it is stolen and the person who gave it to me says they made it, why should I take your word any more than the other person? Say I contacted someone you sold a print to and said that you stole part of the print from my work and demanded they forfeit it, how many people do you think would instantly just hand over their property?

Clearly shown, so you have a written statement from the other photographer admitting he stole it? Do you have evidence where he has admitted that ? Has he come out and apologized for the theft?

Last I checked there is no legal proof. We have armchair quarterbacks here with the opinion he stole it, and looking at their evidence, i tend to believe it was stolen, but that doesn't make it a fact. The fact the photographer hasn't filed anything against the person he is claiming stole his work to me would be a big red flag. But in any circumstance without anything from the person who is claimed to have stole it, it is very much a he said she said situation where two photographers are claiming the same copyrighted aspects. It isn't the job or right of a private company to decide who does really hold the rights.

They are an accessory to a crime. It's like using a stolen phone. Even if you don't know it's stolen you are liable.

You have to return it after it is proven to be stolen. You can't just go up to someone on the street and say you have my phone and demand it back. You are expected to prove it legally that it is yours, and you do that not by going after the person who has it now, but by going after the theif who stole it.

Vincent Philpott's picture

Under the Berne convention it's not necessary to know each countries laws. The minimum protections apply across nearly all countries. They are that if you publish then it's an absolute breach of copyright. It is irrelevant if you knew, could of should have known or if someone else breached it first. However the damages go up significantly the more blatant the breach.

Motti Bembaron's picture

Agree. This is not good publicity for Canon. It is a great publicity, however, to Fujifilm and Mr. Locardi

"The more you talk about this, the more free publicity Canon makes."

This is such a lazy conclusion that is also notionally wrong.

Even this story makes a splash in the *mainstream* media, it is dubious whether the 'free' mention outweighs the damage to brand equity.

Until then, it's only making the rounds in the photography circle, where readers are relatively well informed and highly opinionated. This type of publicity is BAD publicity and should be highly undesirable to Canon

But they didn't steal it, they got what they believe to be a valid license from the person who claims they took the picture. Why isn't the photographer suing the person who actually stole it?

Next time I get a stolen car from someone, I'll make sure to get them to give me paperwork to absolve me from any laws broken and I'll continue to drive the car... The troublesome part in all this is they now know and have done nothing.

If someone stole your car and sold it to someone else and you just showed up at their house and demanded the car back, how many people do you think would just hand it over? They would want you to file the theft with the police and prove it was your car and go though the proper channels, to protect themselves. However in this circumstance, the photographer hasn't gone after the thief, just the person the thief defrauded.

Thief and the person using stolen goods are both liable by law. Even if the one who bought it didn't know it was stolen. That's what I remember from school.

No, if you receive stolen goods that you believe to be legit as part of a contractual agreement, you have to return them after there is legal proof given. And that is something the photographer here has not done. He has no judgement against the photographer saying it is a stolen picture. You have one photographer saying it is stolen and another saying it isn't. That is the courts job to decide who is telling the truth, not a third party company.

So the photographer has a copyright infringement suit against the thief and they have been found guilty of stealing the copyrighted data ? Oh wait no, the photographer hasn't done anything to the thief. They are going after Canon because canon has big pockets and thief doesn't. As the third party who was defrauded, I would want some damn concrete proof before I did anything. You can't just show up and demand things and say they are yours without proof.

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