Hublot/Yahoo/third party: not what any of us expected…

Here is the original situation and the resolution.

I just had a conversation with Mr. Gimbel to a) clarify exactly what happened; b) figure out how we can better protect creatives’ rights, and c) offer any assistance with b). I do intend to let this issue rest but had to clarify exactly what happened for avoidance of any speculation that might be damaging to any party involved.

Pay attention again to the fourth paragraph: “We intend to speak to Hublot SA regarding its practices, especially as it relates to its vendor, with the aim to prevent any further false notices.”
Screen Shot 2015-10-28 at 8.14.06 AM

It turns out that there was no fraud at all; truth can be stranger than fiction.

Hublot uses a third party vendor to guard its IP and prosecute/ claim against infringers. Fair enough; I’d do the same. The problem is, said third party vendor was either a) not properly instructed, or b) properly instructed but did not bother verifying anything before submitting claims. The onus is once again back on Hublot – as a brand principal, you are responsible for all of those agents representing you – legally or perceptually – because they are acting on behalf of your brand. It is in your interests to ensure that the representation is to your liking since your profitability is directly linked to perceived brand value. Vet your vendors!

Here’s the kicker: it was a copyright infringement related to counterfeiting. This is a surprise to all of us as none of the notifications clarified that point, only specifying ‘copyright infringement’ – given that Flickr is a photo sharing site, the natural assumption is that intellectual property and image rights have been breached. Apparently the third party thought I was engaged in the sale or distribution or manufacture (or otherwise) of counterfeit watches, also possibly (or not) using stolen images. This is funny, because one of the images that got taken down was a photo of the company CEO speaking at that event at which the watches were photographed.

Yahoo admits that they were not as diligent as they should have been, and should have caught this more quickly. They also agree with the suggestions I made in the previous post.

I highlighted the most troubling aspect of all: it’s easy to take down and disrupt, but asymmetrically difficult to restore things if the claims are baseless. Again, Yahoo agreed. I offered my services and the readership to offer feedback any possible policy changes in future, since we represent a good cross section of photographers, ability, domiciles and legal savvy – it is in all of our interests to do so. This gives me some degree of confidence that we won’t find our businesses disrupted by some malicious individuals with no legitimate claims*, either.

To Hublot, well done for responding and taking matters in hand quickly. Possibly not so well done for your vendor instruction or selection.

To Yahoo, well done for responding quickly, identifying and admitting the hole and seriously investigating it. I still think there has to be an additional layer putting the onus of proof on the claimant, plus clear means of contest and redress by the existing rights holder.

To the third party vendor, exercise some common sense in future. It is your business to file notices and do so as quickly, actively and widely as possible, but do your due diligence! I was informed that a) I will be getting your details and b) *there are established provisions in statue that allow all of us to sue for damages for false claims. MT

Comments

  1. Hubolt SA 🙂 Kinda like it.

  2. Hi Ming.

    I am glad that the situation finally was cleared – running a business is stressful enough without such events.

    Without going more into the details, I just wanted to let you know that I really have the greatest respect for the efficient, eloquent and professional way you handled all this.

    Best regards, and back to shooting… 🙂
    Matt

  3. An interesting series of events…. it occurred to me that there is one possibility that might help things to make a little more sense. Is it possible your photos have been used in advertising by sellers of counterfeit watches? If they are prominent in the fake adverts, but not official Hublot photos, this would explain why the lawyers were trying to take down these photos wherever they found them.
    That doesn’t make it right, but it might provide a partial explanation.

  4. Luke Johnston says:

    Hello Ming,

    A lot of people have complained as if you are whinging or making ‘too big a issue’ of this but personally I choose to believe you’re more of a Joan of Ark character in this situation.

    The real issue is I think that this would not have been resolved so quickly if someone didn’t have the significant following you do (a write back from the CEO’s legal staff anyone?). Imagine if I had of taken these photos. I have a law degree and I bet the company would not have reacted for days). Imagine if this was a portfolio-making photo and someone decided to tie it up because it had a branded t shirt in it.

    If someone has the authority to act on behalf of a major corporation then they should be able to understand the most basic tenets of copyright law. It is ridiculous. I also understand there will always be untrained staff but as you say, it works both ways.

    It is a pleasure to write to you as always,

    Luke

    • Luke, I don’t see myself as Joan in any sense: I’m a small-business creative professional whose livelihood is dependent on monetizing the value of their intellectual property. If I do not defend my own rights with whatever tools are legally at my disposal, somebody can and probably will try to take them.

      It is also our responsibility as creatives to understand our own rights, because nobody is going to do so or defend them for us.

      I might be able to get a resolution quietly but as you say – only potential bad press and high visibility is going to light a fire under any of these corporate giants.

  5. Again, one’s expectation when hosting images on Flickr or another third party should be that they can be taken down at any time for pretty much any reason. Use AWS or host yourself if you want more control over this process.

    • You have to host it 100% yourself on your own hardware to avoid the hosting company possibly taking your images down too – the DMCA laws apply to all servers of content…and that gets very expensive very quickly, especially if you have the volume of traffic and images I do.

  6. Ah! That explains it. Your crappy quality images matched the crappy quality images of shlock counterfeiters peddling on replica sites.
    Perhaps you’d benefit from profesional watch photography, therfore.

    • Carlos Polk says:

      With my apologies to Ming, a gentleman and professional – one of the best in the business.

      Mahmoud, perhaps you would benefit from some spelling lessons. It is probably too late for you to learn manners.
      Have a nice day!

      • Kenneth Scholz says:

        I think it’s more likely than not that Mahmoud’s comment was offered “tongue in cheek”, a sympathetic complement rather than an insult. Ming has stated why he degrades posted images.

    • I’m going to assume this is a joke.

  7. Yahoo handled this very poorly. 1) They should have informed you correctly and fully of the reason, in the first communication with you. 2) They should have asked you for your response within a deadline, instead of taking your photos down promptly. 3) They should have fully disclosed the name and contact information of the claimant, as in “company x, acting on behalf of company y”. We all have the right to know the name of our accusers, and the complete nature of the claims against us. You were robbed of that.

  8. Michiel953 says:

    Ming, is this Gimbel guy for real (yes, he is, check LinkedIn)? I’ve never seen a “legal” communication containing so many errors. “Hubolt”? “We are not always unable”? ROFLMAO! (And he was with Jones Day for six years as well, probably until someone got sick of proofreading all his drafts).

    Anyway, glad the turmoil is behind you.

  9. Martin Paling says:

    Pleased to hear all resolved to your satisfaction, notwithstanding the complete and utter waste of your time and associated angst. Unfortunately, like others have said, I doubt very much that Yahoo will change it’s practice. It’s one thing having an issue like this highlighted by a prominent member of the photographic community with a big online readership and quite another for the ordinary Joe, who I suspect would be ignored.

    • Not just mine – Yahoo’s and Hublot’s, too.

      I agree with you and said it earlier: good thing it happened to me instead of somebody else, because at least I have some experience and contacts in dealing with this (sadly, it isn’t the first time, or second, or…I’ve lost count). But if it happens to others, they should both know their rights and not feel powerless to do anything. All I can do is publicise and hope awareness reduces these incidents in future.

  10. The washout of this is that this 3Rd party copyright monitor will continue to be as stupid as they used to be, and flickr won’t do zilch in putting in a better process as that causes money.
    Glad that you got it resolved to your satisfaction, but how many brian cells did you consume in this episode?

  11. It seems that Yahoo/Flickr need to add more detail to claims, and place a reasonable response time for those defending against claims. Flickr need quality images to increase traffic and usage, so hasty actions could harm future traffic flows. It may be just slightly more work to await a response from a photographer, though it may save some time over unnecessary actions in the future.

    • I’ve asked for all of the above – they say the DMCA laws require them to act immediately or be liable; that’s fine – but on top of the bare legal minimums, collect evidence from the claimant and make it easy to contest otherwise there’s the risk of being held liable as an accessory to false claim.

      That said, I’m more inclined to stick with Flickr for the time being because at least I know they are aware of these issues and working on improvement. Plus having one of their legal directors as a contact doesn’t do any harm either 🙂

      • You may have found a bit more of a direct line. Hopefully, this was an isolated incident.

        http://blogs.findlaw.com/law_and_life/2013/07/legal-how-to-responding-to-a-dmca-takedown-notice.html

        One thing mentioned here about DMCA is pre-paid legal plans. I know a few musicians who do this already. “As quickly as possible” appears to be the only provision I could find regarding swiftness in take-downs. Obviously, this entire process runs the risk of placing individuals in position to battle corporations.

        On a side note, we can see how incredibly important copyright has become. Corporations hiring firms to monitor copyright sounds like something we as creative professionals need too.

        • I agree we creatives need to be more proactive and consistent about copyright defense, but how do you do that cost effectively with thousands, tens of thousands, or hundreds of thousands of images? By my last estimate, I probably have close to 50,000 images in the public domain, with clients, on this site, on flickr and elsewhere. Even if it only cost $1 to police, I can’t afford it. And I suspect most creatives can’t either. Even if we choose our blue chip grade A images – we’re still talking realistically tens of thousands of dollars.

          I suspect this is where developed and automated versions of services like TinEye come in – but then, we’d have to upload originals and who watches the watchers?

          My theory is the only way to successfully win and contest is to put your images out there in such a visible form (but not usable) that attribution is almost public knowledge.

          • I’ve heard of a few insurance companies exploring protection of images. At the moment, it is tough to say how well these plans would work. Many of us have pushed for this for many years. This may work better when someone else infringes upon our usage, and not as well under a take-down notice defense. Over time this may improve. We are a bit stuck in limbo until these types of solutions improve, and more solution choices appear. Obviously, the added expenses mean we should charge more.

            • And then it goes around in a circle: we charge more so there’s more incentive to unfairly obtain image rights etc…

              I can’t even get insurance on my equipment here; I don’t think any of the companies would even understand the concept of intellectual property – especially judging by the way they have no respect for it at all in this part of the world. 😦

  12. Glad things have worked out, even though everyone seems to have a headache, except for the empty-headed third party.

  13. I would be surprised if Yahoo! alters their practices. The problem is that in the United States, the Digital Millennium Copyright Act (DMCA) provides a safe harbor for online services providers when handling copyright complaints. These providers (such as Yahoo!) cannot be held liable for copyright infringement for content submitted by users (such as photos) provided that they remove such content immediately upon receiving a valid DMCA takedown notice. So long as the notice includes all the required items, the content comes down. The remedy for the user is to submit a counter-notice, which states that the content was wrongfully removed and you consent to be sued in an applicable US federal district court. If the complaining party does not sue within a specified time frame, then the service provider will reinstate the content.

    For Yahoo! to not remove the content immediately may subject them to liability.

  14. chirag parikh says:

Trackbacks

  1. […] is the original situation. And here is the final development. Please note that comments in the original article are now […]

  2. […] Another update, the resolution is there. It seems that Hublot is using a third party vendor to guard its Intellectual Property and prosecute/ claim against infringers. A badly informed one, as it was a copyright infringement related to counterfeiting. Photos that showed Hublot’s CEO speaking at an event where the photos of the watches were taken as well. What is shocking is that a) this third party vendor doesn’t have proper instructions or lacks knowledge on the subject b) Yahoo takes baseless claims for granted and removes images very easily. Ming Thein published Yahoo’s response in detail and a lengthy analysis here. […]

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