Flickr Photo in Copyright Claim

A user of the photo-sharing website Flickr could stand to gain significant compensation after one of his photos was allegedly used without permission by the clothing retailer Gap.

Chris Devers took a photo of an E-Type Jaguar sportscar, reproduced with permission above, in early 2009. A few days ago, however, he spotted a strikingly similar image on a number of Gap products.

The photo was shared online using a Creative Commons licence that permits some forms of sharing, but not commercial use of the image.

He posted a comparison of the two online, noting a pattern of reflected phone lines present in both his photo and the Gap image, and adding that "some unknown factory in southeast Asia somewhere is cranking out thousands of $16.95 t-shirts with my photo on them on behalf of the Gap, and yet [the company] never attempted to contact me about their use of my work".

Another user superimposed the two images into one, highlighting the similarities between the two.

Mr Devers confirmed to Computeractive that he has now been contacted by Gap, but can make no further comment for legal reasons. Gap did not respond to our requests for comment.

Charles Swan, of intellectual property lawyers Swan Turton, said that anyone finding their rights-protected images appropriated without permission might be able to seek one of two kinds of recompense from the clothing manufacturer: damages or a so-called 'account of profit'.

Mr Swan said damages "are based on compensation for the amount they would reasonably charge for licence fees, and can be increased if the infringement is deemed flagrant", while "an account of profit is based on how much profit the company made from the image – they can ask in court for an account, then claim for the profit made from the infringing product".

He said that claims of misappropriated copyright "go on all the time, especially in the fashion industry."

"You don't normally hear about them because they are normally settled out of court."