Attorney Steve® Photo Infringement Lawyer - Otto Archive, LLC overview.  Call us to discuss your matter at (877) 276-5084.  We represent Plaintiff and Defendants in photo/image cases.

Introduction

Photo infringement recovery is becoming a HUGE BUSINESS.  Our firm is on the frontlines of the explosion of unauthorized sharing of digital copyrighted content including photos, architect plans, computer fonts, fashion designs, jewelry, videos, and other protected content.  When it comes to photo infringement, this is becoming a highly specialized area of law requiring a deep understanding of copyright law, defenses and damages.

This blog discusses some of the important things you should know if you are approached by Otto Archive, LLC and other companies such as SRIP Law, Higbee and Associates, Doniger Burroughs, Peppercorn Law and others (there are many).  If you need immediate representation (i.e. you were served with a lawsuit or legal demand letter) contact us at (877) 276-5084.

Who is Otto Archive?

Otto Archive notes on its website:

"We take copyright protection of our artists' work seriously. We work with the following partners to enforce those rights:

• Global Rights Control
• Rights Control (UK, France, Germany)
• ImageRights
• Rechtsanwaltskanzlei Fuß & Jankord
• Frommer Legal
• Peppercorn Partners.'

While it is not clear what they mean by "partners," it appears there is a formal or informal photo compliance network in place to handle infringements across various jurisdictions. 

Per their LinkedIn page :

"OTTO represents elite photographers of design, architecture and interiors for editorial and commercial licensing."

PODCAST:  Quick overview of OTTO Archive, LLC cases by Attorney Steve®

Anatomy of a Photo Infringement Demand

Typically, a photo infringement pursuit against a company proceeds as follows (results may vary depending upon your case, the company/photographer you are dealing with, and your jurisdiction):

1. The image rights company will scour the internet often looking for infringement. This can include social media platforms like Facebook, and Instagram.
2. Once a copyright "match" or infringement is detected, a demand letter will usually be sent to a company (or sometimes, to an individual).
3. Depending upon the circumstances, it can make sense to try to settle fairly early on if you can get a fair deal.
4. If the demand letter is ignored, the case file may be sent to a copyright enforcement law firm in California, for example (ex. Doniger, SRIP law, or Higbee & Associates) or Peppercorn, and the demand can increase, and often will increase if the case goes to court since you now have a law firm involved.
5. Again, another opportunity for settlement may present itself even if the federal court website is filed.
6. If not, the case can be litigated, but this only makes sense usually if the demand was to high (unjustified) or you have a good defense to litigate, such as the fair use defense.

Here is another blog I wrote similar to this (although based on software infringement if you are interested): what happens if you cannot get your case settled , which would be a good read if you are in this position.  

Also, sometimes a statute of limitations case may be raised, and for these cases, make sure to check out my article about The Professional Copyright Plaintiff.

Sample Otto Archive Lawsuit Allegations

Here is what you might find in an Otto Archive, LLC lawsuit (I have only detected a handful of federal cases filed, and most appeared to wind up in default):

• OTTO is a New York limited liability company
  
  
• By virtue of contractual assignments with the respective photographers, Plaintiff is the sole and exclusive agent and representative for the licensing and use of certain original photographs (the “Subject Photographs”). Pursuant to that assignment, Plaintiff has standing to maintain this action under 17 U.S.C. § 501(b).

Attorney Steve® Tip:  A Plaintiff must have "standing" to file a lawsuit (meaning, they have to be the real party in interest that suffered a concrete injury).  In these cases, I would check closely to see if OTTO really has the standing to file these lawsuits as they claim.  Are they the registered owner of the copyright?  Can they send you proof of this?  Were they assigned all rights, title and interest?  What rights do they actually have?  If not, filing a 12(b) motion to dismiss might be something you want to discuss with your legal counsel.

• Following the publication and display of the Subject Photographs, Quadrille copied, published, displayed, created derivative works of, distributed, and/or otherwise used the Subject Photographs on Quadrille's Platform without a license, authorization, or consent (collectively, the “Accused Posts”). Screen captures of the Accused Posts are set forth in Exhibit 2.
  
  
• Upon information and belief, Defendants, and each of them, had access to the Subject Photographs, including through viewing the Subject Photographs on OTTO's or the Photographers' websites, social media pages, galleries, or exhibitions; or on Internet search engines or third-party websites.
  
  
• Upon information and belief, Defendants, and each of them, displayed, published, reproduced, distributed, created derivative works of, and/or otherwise used copies of the Subject Photographs on Quadrille's Platform without a license, authorization, or consent from OTTO.
  
  
• The Subject Photographs are registered with the U.S. Copyright Office. The Subject Photographs and their corresponding titles, photographers, and registration numbers are set forth in Exhibit 1.
  
  
• Due to Defendants' acts of copyright infringement, Defendants have obtained profits they would not have realized but for their infringement of the copyrights in the Subject Photographs. As such, OTTO is entitled to disgorgement of Defendants' profits attributable to the infringement of the copyrights in the Subject Photographs in an amount to be established at trial.
  
  
• Upon information and belief, Defendants, and each of them, have committed acts of copyright infringement with actual or constructive knowledge of, or in reckless disregard of, the Photographers' and/or OTTO's rights in the Subject Photographs, which renders those actions willful, intentional, or malicious. 

NOTE:  Make sure to brush up on the law of copyright damages.  To make it simple, I made this video on copyright remedies.

Does Otto have standing to file a lawsuit for its photographers?

My review of the Pacer Federal system , I learned that Otto Archive, LLC had filed (8) federal court lawsuits on their own behalf.  It was not clear if they were representing their photographers or the company OTTO Archive itself.  It is not clear either, if challenged, would they have standing to file the lawsuit or not as it appeared this challenge has never been made and most cases had settled early on.  In these lawsuits, I noted the following legal representatives:

1. Law Office of Scott Radcliff (California case)
2. Donniger Burroughs (California)
3. DeSouza law (Colorado)
4. Peppercorn law firm
5. Robert Terry Parker Law offices (Massachusetts/New York)
6. SRIP (Tennessee)

Top 5 types of content I see infringed

In years of handling photo infringement cases, I have learned that the following types of Works of authorship continue to be among the most infringed photos:

1. Landscape photos (for example, many real estate agents and brokers are routinely pursued for using unlicensed landscape images on their company websites);
2. Architectural (interior designs photos, staging photos, and architectural plans);
3. Common consumer products (ex. beer cans, tools, things people sell on their e-commerce websites);
4. Photos of celebrities (these carry the risk of both copyright and right of publicity legal problems);
5. Animals (nothing warms up people like a webpage or social media post with a cute fury-looking animal).

ATTORNEY STEVE® TIP:  When I am looking to find content to use for social media marketing, I first ask if I can create it myself.  If not, I look to see if something is in the public domain.  Their are some good places to find public domain content.  Next, I will either license what I need from a stock image or video website, and finally, if all that doesn't get me what I need, I can hire someone (ex. on Fiverr) to create the content I am looking for.  In these later circumstances, make sure you are getting the proper copyrights and assignments you may need.

Potential defenses to photo infringement

While there are some copyright infringement affirmative defenses, such as license, fair use , lack of copyright registration, parody , de minimis use, and others, it is best not to have to rely on these since copyright infringement is known as a "strict liability" offense.  Meaning, you can be held liable even if you didn't "mean too."  Watch this video by Attorney Steve® for more insights.

IMPORTANT THINGS:  Make sure the rights holder has registered the copyrights with the United States Copyright Office ("USCO").  Many times, you cannot actually see the specimen they submitted for registration, but there is a way to get that information.  Make sure you know who the Plaintiff is and who they represent.  Do they have a signed power of attorney?  Make sure to look at the value of the images at issue.  Do they have proof of past prior licensing, or are they trying to rely on "comps," as I have seen them do?

What to do if you have received an infringement letter

First off, don't panic, and don't start talking to everyone.  Contact an experienced copyright counsel to discuss.  A firm like Vondran Legal® can review the allegations, evidence, and potential defenses and determine the proper course of action in responding.  Many times it makes sense to quickly take down the infringing photo if you don't have a firm belief that you have copyright fair use rights.  Do not waste time, especially if you have no legal rights to use the image, drawing, chart, map or illustration.  Many times, you will want to consider an immediate TAKE DOWN so you are not accused of "willful copyright infringement ."  

Contact Vondran Legal® United States Copyright Law Firm

We are a boutique copyright infringement law firm that has handled approximately 1,000 copyright infringement matters since our founding in 2004.  We have represented photographers, media companies, musicians, software and music professionals, law firms, realtors and brokers, movie producers, architects, font foundries, and others in a wide variety of copyright infringement matters. 

Typically, we represent defendants accused of piracy, misappropriation, or infringement.  However, we have a growing presence in representing rights holders in contingency fee photo recovery matters

For more information, call us at (877) 276-5084 or email us through our contact form. 

If you are seeking local photo litigation counsel (ex. you are an insurance company that needs to defend claims) drop us a line.