NSW Buyers reselling my products in unlicensed business model

Australia's #1 for Law
Join 150,000 Australians every month. Ask a question, respond to a question and better understand the law today!
FREE - Join Now

terryhoulding

Member
16 July 2020
1
0
1
I would like to understand my legal rights for the following:

Context:
I sell Digital Backdrops via my own website and also through Etsy
Digital Backdrops are 'tool's for photographers who - through the use of a graphics editing package such as Photoshop - can create composite images of newborn babies overlaid onto the backdrop.
A photographer will buy this product and will utilise one or more backdrops to create a package for clients baby's that they have photographed.


Situation:
Recently people have begun buying backdrops for the intended purpose of creating a business service whereby customers will send images of their newborns and then the business owner will create the composite for them.
This is not something I have agreed to.

My terms and conditions initially covered standard copyright laws i.e.
"I understand that all images within the store are copyright protected and agree to never resell, share or transfer products and that should I violate this, I will be open to prosecution under copyright laws. "

In response to the aforementioned concerns I have tried to make my copyright terms more robust:
Terms and Conditions
  • All website images and videos are subject to copyright under Australian and international law (Berne Convention) and are not to be resold, used for marketing purposes or used for derogatory purposes.
  • The name ‘NewbornDigitalBackdrop.com’, ‘NatalieHouldingPhotography’, ‘The Garden Dream’ and any of the trademarks, logos and digital content are not to be used for the purposes of claiming affiliation without express permission of the site owner
Videos:
  • All videos are subject to copyright under Australian and international law and are not to be used for the purpose of claiming affiliation, re-selling, marketing, mis-representation.
Website:
  • ‘NewbornDigitalBackdrop.com’ is protected by copyright and is not to be copied in whole or in part
Purchased content
  • Digital backdrops, Photoshop actions and premium video downloads are non-refundable under any circumstances.
  • Digital backdrops purchased by the photographer can only be used under license to create composite images of photos which they have taken themselves.
  • Digital Backdrops cannot be used as part of a business model to market/ sell composite images in which the purchaser has not taken the photograph – without express license and authorisation by Natalie Houlding
  • Digital Backdrops cannot be shared and/or sold to third party resellers eg. canvas print wholesalers
  • Premium video downloads are not to be shared or transferred in any way
  • All digital products are only available and deliverable as online downloads. Links to purchased content will be sent once purchasing is complete.
  • NewbornDigitalBackdrop.com cannot be held accountable for failure or inability to download files or stream videos once purchased due to computer systems or Internet Service Provider related issues.
  • It is the buyers responsibility to download and save purchased digital files.
  • It is the buyers responsibility to have the correct image editing software and expertise to use purchased files including Photoshop actions

Recently a buyer has sought a refund for a number of the digital backdrops they purchased based on the proviso they:
1) Wanted to setup the aforementioned business model
2) Viewed the digital backdrops and read the old Terms and conditions which were still on Etsy (subsequently updated)
3) Purchased the digital backdrops via my website (due to being able to gain a discount). The website has the most recent version of the Terms and Conditions.

They are seeking the refund because they have 'no other use for the backdrops'

My questions:

  1. How do I prevent (through Terms and Conditions) the purchase of my backdrops which would solely be used to create a business
    1. Is this concept covered in the either the old or new language i.e:
    • whereby the buyer agrees 'not to resell'

    • Digital backdrops purchased by the photographer can only be used under license to create composite images of photos which they have taken themselves.
    • Digital Backdrops cannot be used as part of a business model to market/ sell composite images in which the purchaser has not taken the photograph – without express license and authorisation by Natalie Houlding
    1. Image reselling sites such as Shutterstock sell images under license eg. you can buy an image for personnel use for $10. If you want to buy that image for onward selling via another medium such as prints to sell in a home store, it would cost $1000 (prices are examples)
    • Would this model be something that would work for my case
    • Do I have to declare this model for it to be applicable? I.e even though I am not actually intending to sell licenses, can I still protect my works by declaring as such.
  2. In the case of the recent buyer, as they bought the product from my website where the most recent terms and conditions were in place - prior to purchase - are they applicable despite the buyer purchasing based on the old terms and conditions displayed for the same product on a different platform?
  3. Can you recommend what language I should use for my Terms and Conditions if it is not covering me?
Please note, Buyers are international and therefore I'm seeking something that isnt locked to my own country.