In complete agreement with Space here and yes the US is without doubt the most litiginous country in the world.
It is correct to say that in the event that John Doe purchases a theme from Envato that was made by Jane Doe and later someone found that their copyrighted video, photo or content was a part of the theme they by all rights can sue Jane Doe and Envato. Jane Doe for producing a product that contains copyrighted material without written permission or paying a fee and Envato for promoting the product (30% is an agents fee rate) thus making them 30% liable for any damages so Envato will try to mitigate their responsibility in the terms of sale or purchase.
In the US from state to state this will vary in its affect but from my experience as a producer / photographer if one of my images or videos are used without payment of royalties or written permission I can sue the person who integrated my content, the person who sold it or represented it and in at least 20 states the person who bought it if they continue to use it on the website by installing “demo content”.
The damage award cannot be limited by anything in the Envato TOS in fact their TOS is superseded by Local, State or Federal law in that order and you can or I can sue you for actual damages and punitive damages which can be in the millions of dollars depending on what the judge or jury decides.
One thing that I came across with themes purchased that Envato solves on a case by case basis which is Guarantee of use. I buy a theme today and in 30 days a new update for wordpress comes out and now my theme is broken, you look for an update and there is none, the company who made the theme is not going to provide an update or has left envato or the business completely. Other companies like GPP and don’t remember the other guarantee updates for life thus for the $49 US that you spent on a theme you will always have an update, here we are saying well it should work for 6 months at least, if after that you want updates??? Right now I have a theme that I purchased 3 months ago and after one of their updates its broken, I rolled back to the previous version but although the company has tried to solve it once by sending a file, then modifying a file it is still not working so what to do?
I also am not a lawyer but speaking from experience with a copyright infringment and theft of creative property lawsuit that I had to file in the US against a record label for unauthorized use of a photo for a CD cover. US and most countries apply ownership of photographic material to the photographer unless a transfer of ownership has been signed and the ownership of the material has been reassigned.
This is an interesting topic since I am a photographer and filmaker (non US) but here is the law in most countries.
photographers are the copyright owners of their material and in general terms have the right to do what they want with that material including selling it
There are 2 exceptions to that rule.
First, photography for pay by a third party where the photographer assigns the copyright or use to a third person, persons or company for an exclusive purpose.
Second, the photographer or producer has paid a model for him or her to pose and be photographed perhaps for his personal book or a project and the contract between the model and photographer does not stipulate the “resale” of the photographs for profit.
For example in my standard model contract there is the stipulation of how much the model will be paid for how many hours as well as all of the standard declarations and copies of identification etc and there are 3 clauses that allow me to
use the photos for self promotion whether printed or digital.
use of the photos in development of current or future projects whether digital or printed.
the transfer of rights to use to third parties for the purpose of promoting a product, service or concept.
In the case of nude or erotic photography or productions there are additional clauses related to where the models information is stored and copies of the contracts etc. However, when I sell or am hired to shoot nudes or erotic material I am ALWAYS required to send copies of the contract between the model and myself as well as a copy of the signed 18 USC U2257 Compliant. The records required by Section 2257 of Title 18, United States Code.
Having material of under 18 models in your possesion without copies of or declaration of where those records are and who is the custodian of those records can open a legal can of worms especially in the US.
When I do street shooting or Street Photography since I am not in the US I always have a small supply of one page releases with me to be able to be free from problems but these I never have had to share with media outlets or anything.
I don’t know why Envato would NOT provide the model release unless they don’t have it but when you buy the image from photodune do you get a license with that? Does that license allow you to resell it or profit from the images? Obviously it is a nonexclusive license since they might sell the image to 10k different people.
I’d greatly appreciate it if an official rep of Envato rep could confirm the following licensing question.
Use Case: YOUTUBE/ FACEBOOK SHOW
This pertains to a “show” type of series of videos that I will post on Youtube and Facebook, regularly.
The video episodes will NOT be sold, but will be available for viewing on Youtube and Facebook, at any time.
I want to make use of the following After Effects “Elements”: the Ultimate Earth Zoom Toolkit and the Photo Projector.
When I look at the License FAQ and the nature of these elements I interpret these as being TOOLS that are subject to the Envato Tools Terms and Conditions. I can’t provide a link as I’m not allowed more than 2 links in one post.
So, for the following use of these specific “Elements” the Tools T&C would apply. So I would just need ONE REGULAR license copy for each of the 2 Elements, for both the use cases below, right?
Creating the INTRO part of EVERY episode, which WILL NOT CHANGE from one episode to another - what type and how many license copies will I need?
Using the AE element within EVERY episode, each with a DIFFERENT CUSTOMIZATION (for e.g., in each episode I will represent different places, with different coordinates when using the Earth Zoom Toolkit).
Man, you should write “Terms and Conditions” for money. If all the regulations were written like this, people would always read them from cover to cover.
Comment and concerns by @velocityco have validity. As a video producer, using images provided by sites such as Envato (e.g. Photodune, Videohive, etc.) should include model releases (as other sites provide paying customers). Personally, as a video producer, I do both (i.e. buy and sell). As an author (seller), being we practice good ethics, and are careful about the images we use for our clients, as an author, I personally would not oppose Envato having me provide a model release to whoever buys the image(s) because sensitive information can be omitted from the buyers. With the proper (Envato) system in place, all three parties can benefit (i.e. seller, buyer, Envato), to the point where each seller can review the model releases before having them “uploaded” to the site (Envato) for paying customers. Envato’s legal team can sign-off on the system to ensure it protects Envato’s interests. The current license provided by Envato (and its authors) offers little protection to its customers (buyers) and Envato’s terms simply pass liability on to buyers, rather than creating an environment that promotes good ethics (by its authors), and in the big picture, even risks its own assets in the process.
problem is when on video there is actual cat, but buyer never seen a cat before and because he stopped liking what he bought he can still get his money back - read: customer buying simple html template and don’t know the basics and rattling around that 1. theme is broken, 2. no support 3. etc.
That’s always been the case though. People will have been requesting refunds since Envato started, for one of a million different reasons, probably cats and dogs included… and in each case Envato assesses the validity of the refund and issues them or doesn’t issue them on a case by case basis. Nothing is changing when it comes to refunds as far as I know.
Envato have just added a liability clause, which I’m assuming will provide an added layer of protection to them and to authors.
Sorry, but the Tools License isn’t applicable to items under “Element” category, even though there is the “Tool” word in the title.
A Regular License will be just fine.
Well, if the episodes will be connected with each other, or if they can be considered as a “series”, then you can make some minor modifications on each episode. But I’m not sure if those “minor modifications” can cover your modifications. (From the FAQs)
If I were you, I would double-check this one with the Help Team.
Keep in mind also that USA “Free trade agreements” between Australia, various other countries and the USA are a total scam on behalf of the USA. An American company can sue for copyright infringement where none exists effectively destroying Australia’s software industry. Along with numerous other clauses favoring the US at the cost of Australian industry. I moved my software sales to Ireland where thousands of US companies (PayPal being one) have moved their primary place of business to.
If that’s related to some kind of theme or plugin that you bought from Envato, then you need to speak to the author of the item in question. There will be a support tab on the item page or you can contact them through the contact box on their profile page.
I live in America. The buyer should never be held responsible for work they purchased on Envato. If a third-party contacts a buyer claiming to be the legal owner of the work. The author who said the work was theirs should be held responsible, and the third-party should sue the author for copyright infringement. That’s my thoughts. With the current terms on Envato, I might have to start making my own works. This will be one added assignment that I will charge to the client. As a previous seller of stock footage, I would inform my buyers that they could not sell my footage as their own, but they could use the footage forever. I always wanted happy clients.
Agree.
Products with unlimited lifetime updates bought before this change, should be granted full lifetime updates.
Otherwise It would be very difficult to trust the company and buy again here.
It never changed. What you are suggesting is still the case.
Previously it was between author and buyer and envato had no control over it. This remains the same except now envato can enforce it for the first 6 months.
Other than this new additional benefit nothing is different
If all the regulations were written like this, people would always read them from cover to cover.