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Melisa Nichols Melisa's Bears
Hazelton, BC
Posts: 5,811
Website

Here's an odd thing... someone kindly emailed me to let me know that one of my owls has been "hijacked" to be a download as a talking baby owl for iPhone (by Fox Dragon Design.  I'm not sure whether to be upset or happy about it.  They are charging .99 cents a download, but I don't get any of that. 

http://downloadnew.biz/iphone/lifestyle … 92925.html

I'm not even sure what I could do about it since I am in Canada and who knows where this Fox Dragon Design is....

Us Bears Pennsylvania
Posts: 1,479

Send a cease and desist letter right away. 
Send it via e-mail and send it on paper to their published corporate/business address.
Use registered mail with return receipt request.
Send two copies of the registered letter just in case they try to claim that they didn't get the first one.

Here is a sample cease and desist letter I found by searching the internet.  I simply copied it for your reference.
You will nee to read the sample and edit it to suit your situation.

http://www.plagiarismtoday.com/stock-letters/

Dear Sir or Madam,

You are using a work that I own the copyright of. The name of the work involved is "<<WORK NAME>>". It appears on a site operated by you at <<INFRINGING LINK>>. I have reserved all rights to this work, which was first published on <<ORIGINAL LINK>> in <<YEAR OR DATE OF PUBLICATION>>.

Your copying and or use of my work, which appear at the link above, is unauthorized. You neither asked for nor received permission to use the piece nor to make or distribute copies of them in the manner you have. Furthermore, you have taken credit for my work and caused confusion as to whom the original author of the work is. Therefore, I believe you have willfully infringed my rights under 17 USC §101, et seq. and could be liable for statutory damages as high as $100,000. Further, such copyright infringement is a direct violation of the Digital Millennium Copyright Act and International Copyright Law.

I demand that you immediately cease the use and distribution of the work and all copies of it, that you remove any further works you may have stolen and that you desist from this or any other infringement of my rights in the future. Furthermore, I demand that you post an apology on the site clarifying who the real author is and that you inform others that might have been misled by your misuse of the works'
origins.

If I have not received proof of compliance from you within 72 hours, I shall consider taking the full legal remedies available to rectify this situation including contacting my lawyer and/or your site's administrators.

Sincerely,

<<YOUR NAME>>

If you know a lawyer contact him and ask his advice.  Many lawyers will give a 15 to 30 minute consultation without cost to you provided, if you decide to proceed with the case, you hire them to do it for you.

If you can't do that, you can contact your District Magistrate and ask his advice.
Your county/province should also have some kind of Attorney General who you can ask for advice.

One more thing...  Would you be happy if they simply quit using your design?
You MIGHT be legally entitled to recover money from them if they sold your design without permission.
This could lead you down one of two paths.  You could force them to pay you the money they made from their improper sales then take the product off the market OR you could force them to license the design from you so that they can keep selling the product but they would have to give you a percentage of the profits.  75/25 might be fair considering that they didn't ask your permission.  If they had asked, I might be willing to go 50/50 but that was before they peeved me off.

karenaus Melbourne
Posts: 694
Website

What a day for you, with your eBay issue and this! I'd be so irate if someone did this to me... Have you written to the site it's on  and asked them about their policy on this stuff? I see they have live chat, can't hurt to find out....And  of course the ones actually selling it, can't see their site as it's flash and I'm on my iPad...
I just looked and it's  on the Apple App store too- surely Apple must have a strict policy on this?  guess the trouble would be finding out where to get help....

karenaus Melbourne
Posts: 694
Website

http://ezinearticles.com/?A-Practical-L … id=3583497

Interesting in the Music section it states 'any and all content in your application must be owned by you.... Etc etc' contact the company and if they don't give you any joy, I'd contact Apple. Or go straight to Apple....

Little Bear Guy Little Bear Guy
Waterloo, Ontario
Posts: 1,395

Well I would attempt to track down a correct address for the company, they are an LLC (Limited Liability Company) which means they can be a partnership or an individual but they are not a corporation, and we don't recognize them in Canada as a legal entity.  I would guess they are most likely selling this app on the apple app store, so you may want to try and get in touch with Apple and explain to them the situation, they may very well pull the app for the time being until things get settled.

Best of luck, but I would attempt to locate a lawyer who deals both with Canadian and US law.

Melisa Nichols Melisa's Bears
Hazelton, BC
Posts: 5,811
Website

Thank you for all the advice... it is much appreciated.  I've never had to deal with anything like this before.  I've found photos of my work on some blogs, but people were always willing to give me credit, so I just viewed it as extra advertising as they weren't making a profit off it.

I'll have to look into this more tomorrow.

desertmountainbear desertmountainbear
Bloomsburg, PA
Posts: 5,399
Website

Money to you would be nice.

Us Bears Pennsylvania
Posts: 1,479

I forgot about Apple's App Store!

Yes, contact the App Store too!  If can prove you have a case, they'll pull that app faster than you can blink!   bear_grin

karenaus Melbourne
Posts: 694
Website
Melisa Nichols wrote:

Thank you for all the advice... it is much appreciated.  I've never had to deal with anything like this before.  I've found photos of my work on some blogs, but people were always willing to give me credit, so I just viewed it as extra advertising as they weren't making a profit off it.

I'll have to look into this more tomorrow.

Yes, that would be an entirely different situation, if they acknowledge the source. It's wrong these people make money off your work without your permission. And it's not just the money, it's also up to you what you want to associate your work with.
    Best of luck with it all, a nights sleep to clarify your reaction is probably what's best. I think if the company won't  come to the party, Apple will be quick to act. I'm not sure if you can access the app store without iTunes, but I put 'talking baby owl' into the search bar in the app store on my ipad, and it popped right up. Oh and it's $1.19 on the Australian site, just FYI.

smdogs gone to the dogs/sm dog designs
Kansas City Missouri
Posts: 234
Website

Melisa,
   I am sure they just pulled your photo of your owl from the internet. All you have to do is put in a search for what ever you want to look for in  subject matter and photos just pop up. for example type in owl photos or maybe owl baby photos and there are alot of photos of owls out there  just for the pickin. I have ran across some of a few of my polymer clay dog photos from my website not to mention a few bear artists photos of there bears.

I do not think this is right, but now days it seems whatever you put out there on the iternet it becomes free game. I am not sure how we can all protect our photos, after all we took them!!!!

I would try and get ahold of those folks to let them know it is your photo, you took it and you would like credit or money for it.

sheryl

desertmountainbear desertmountainbear
Bloomsburg, PA
Posts: 5,399
Website

It is very possible that they do not realize that it is not a real owl.  I looks like a real baby owl.  Didn't another one of your creations show up on someones website as a real animal?

Joanne

Melisa Nichols Melisa's Bears
Hazelton, BC
Posts: 5,811
Website

bear_grin  Money would come in handy!   I'm still debating what I will do.  Without buying it, all I can see is the photo, so I'm not sure what all it does. 

I'm flattered that perhaps it looked real enough for them to think it is a real owl.

Didn't another one of your creations show up on someones website as a real animal?

I had one of my owls and a marmoset monkey featured on blogs as real animals. 

One thing that really annoys me about this is that this design company has copyrighted their app, meanwhile, they didn't make sure that they had the right to use the photo.

KJ Lyons KJ Lyons Design
Seattle, WA
Posts: 1,413
Website

The wording of the ad sounds very Asian. If that's true it will probably be very difficult to talk to them. Asian countries are very vague about copyright laws. But it's worth a try  bear_thumb
Karen

Us Bears Pennsylvania
Posts: 1,479

Send a cease and desist letter right away.

If you do not send this letter it will make it harder for you to defend yourself in the future because they could simply say that you don't care.

Defend your rights now or else risk losing them.

Melisa Nichols Melisa's Bears
Hazelton, BC
Posts: 5,811
Website

I'm going to get busy on that...  I guess registered post would be the best way?

Plum Cottage Bears Plum Cottage Bears
Long Beach, CA
Posts: 2,151

Plum Cottage Bears Cute Animal Ambassador

I'm a certified paralegal.  I'm not giving legal advice here, but I agree with Us Bears about the need for a cease and desist letter.

lapousmor Sophie Z'Ours
Sarthe, France
Posts: 2,770
Website

Yeah, do that, Melissa!

:hug:  :hug:  :hug:  :hug:  :hug:

I will cross my fingers for you.

Beary hugs,
Sophie.

boohbears Booh Bears
Glendale, Arizona
Posts: 1,833
Website

It's a good case for putting a watermark on all of your photos - it's a shame but you may want to consider it in the future.  He does look like a real baby owl and I bet that it is just a mistake rather than someone trying to steal a photograph of your work of art.
I'm so sorry this happened to you, Melisa. 
Hugs,
Janice

Us Bears Pennsylvania
Posts: 1,479

It doesn't matter if it's a picture of the real owl or somebody's creation of an owl.  It is a work of art that they did not ask for permission to reproduce.

Case closed!

Melisa Nichols Melisa's Bears
Hazelton, BC
Posts: 5,811
Website

I've been looking for contact info and all I can find is an email.  I guess that will have to do. 

Do you think I should email the Apple's app store right away?  Or should I wait for the 72 hours that is in the letter?

Melisa Nichols Melisa's Bears
Hazelton, BC
Posts: 5,811
Website

Done.... I feel drained now...

bear_sad

rkr4cds Creative Design Studio (RKR4CDS)
suburban Chicago
Posts: 2,044

OMG - I just came across this topic and looked it up - followed the link and it's definitely still there... DARLING Owl!
You've got your sketches/fabrics/everything that represents the background behind its creation by you!

Cease & Desist first (as per Randy's information) then I would contact Apple/iTunes immediately.
They certainly do NOT want to be seen to be promoting plagiarism.

Melisa Nichols Melisa's Bears
Hazelton, BC
Posts: 5,811
Website

Thank you for the input Bobbie.   bear_flower   

I sent an email to both the design company and Apple... hopefully it'll be off of the sites quickly.

Bakerina78 Posts: 326

Hi Melisa, I hope you can get some money from this company!

Did you see what they made with your owl.. what he can do now:

"Baby Owl can do all of the following:
+ Talk back to you and even tell jokes
+ Eat worms
+ Take a drink
+ Laugh and make remarks when you poke his head, feathers, stomach, and feet
+ Enjoy your touch
+ Burp and Toot
+ Much, Much More!!! "

wow!

by the way, you can leave a comment there too..maybe write something there?

rkr4cds Creative Design Studio (RKR4CDS)
suburban Chicago
Posts: 2,044

Oh Yes, I saw that too, Tatyana... it never occurred to me but I think that would be an Excellent place for Melissa to CLAIM OWNERSHIP of her own image - right there for all to see, and direct visitors to her own site & blog to prove it!!

And here's one more thing that puzzles me——it quotes a "Release Date" of - 2011-10-29.
Wouldn't that read..... 29 October 2011? And isn't today 9 June 2011?
Isn't that like Back To The Future?????
I don't understand that bit at all.....I guess there's no understanding unethical ppl....

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