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Originally Posted by naskies
From the information provided, it sounds like a fairly clear and cut case? If a Lowes employee downloaded the photo from her Flickr stream, made the T-shirt, and started selling it etc - then I would think it's a fairly cut and dry case. She'd be able to win back her legal costs, royalties, and possibly penalty costs (designed to discourage infringement).
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Yes, If Lowes cannot prove they have permission to use the image. If the complainant cannot prove copyright then Lowes and all others involved are in the clear.
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On the other hand, what if some stock photo company took her photo from Flickr, posted it on their site, resold it to a fashion designer, the fashion design made the T shirt under good faith, sold it to Lowes who then produced the TV ad all in good faith? Clearly, the photographer's rights have been infringed, but I'd imagine that it would take a lot more legal untangling to sort out the mess...
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It's only clear if she can prove copyright and those accused of infringing copyright cannot prove they had permission from the copyright holder to use the image, or cannot prove that the image is public domain.