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Being pursued by Otto Archive, LLC for copyright infringement?

Posted by Steve Vondran | May 23, 2023

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

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Photo infringement is becoming a HUGE BUSINESS.  Our firm is on the forefront of the explosion of unauthorized sharing of copyrighted content including photos, architect plans, computer fonts, fashion design, jewelry, videos, and other protected content.  When it comes to photo infringement, Plaintiff counsel have an elaborate legal network setup to pursue claims of unauthorized use. 

This blog discusses some things you should know if you are approached by Otto Archive, LLC and other companies such as SRIP Law, Higbee and Associates, Doniger Burroughs 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.

We represent both Plaintiff (image rights holders) and Defendants accused of photo infringement.

The law firm setup according to Pacer

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 formal or informal photo compliance network in place to handle infringements. 

Per their LinkedIn page :

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

Anatomy of a Photo Infringement Demand

Typically, a photo infringement pursuit against a company proceeds as follows (results may vary depending upon your case and jursidiction):

  1.  Rights companies scour the internet for infringement on the internet including social media platforms like Facebook, and Instagram.
  2. Once a copyright claim is detected, a demand letter will usually be sent to the company (or sometimes, an individual).
  3. Depending upon the case, this can be the best time to settle the case.
  4. If the demand letter is ignored, the case file may be sent to a copyright enforcement law firm in California (ex. Doniger or Higbee), and the demand can increase, and often will.
  5. Again, another opportunity for settlement may present itself.
  6. If the case cannot be settled a federal (public) lawsuit can be filed against the infringing individual or company.

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

Sample Lawsuit Allegations

Here is what you might find in a Otto Archive, LLC lawsuit:

  • OTTO is a New York limited liability company 5. Plaintiff is informed and believes and thereon alleges that Defendant Quadrille Wallpapers and Fabrics, Inc. (“Quadrille”), is a New York corporation with a principal place of business located at 52 Corporate Circle, Suite 207, Albany, NY, 12203, and maintains a showroom within this District located at 8687 Melrose Avenue Suite B629 Los Angeles, CA 90069. Quadrille is the owner, operator, and/or controller of the website and its related/affiliated subdomains, mobile websites, social media pages (including Quadrille's Facebook, Instagram, and Twitter pages), and applications (collectively, “Quadrille's Platform”)

  • 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 that suffered a concrete injury).  In these cases, I would check to see if OTTO really has the standing to file these lawsuits.  Are they the registered owner of the copyright?  Can they send you proof of this?  Were they assigned all rights, title and interest?  If not, a 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. 12. 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. 15. 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. 

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 Otto company itself.  It is not clear if they have standing to file the lawsuit or not and it appeared most cases had settled early on.  In these lawsuits, I noted the following legal representation:

  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)

If you received a demand letter, notice of infringement, subpoena or lawsuit (summons and complaint), call us to discuss.

Top 5 Content Infringed

In years of handling photo infringement cases, I have learned that the following seem to be amongst the most infringed types of photos:

  1. Landscape (for example, many real estate agents and brokers are routinely pursued)
  2. Architect (interior designs, architectural plans)
  3. Common products (ex. Beer cans, tools, things people sell on their e-commerce websites)
  4. Photos of celebrities (these carry both copyright and right of publicity problems)
  5. Animals (nothing warms up a webpage like a sweet looking animal)

If you are not sure if your website and social media posts are licensed, you should discuss immediately as these cases can be expensive.  Call us below.

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.

What to do if you have received an infringement letter

Don't start talking to everyone.  Call a firm like ours to discuss.  We will review the allegations,  evidence, and determine a proper course of action in responding.  Many cases will settle out of court due to the costs of litigation.  Do not waste time so that if you have no legal rights to use the image, drawing, chart, map or illustration, you can be advised to IMMEDIATELY TAKE DOWN THE IMAGE so you are not accused of "willful copyright infringement ."  Learn more about what constitutes willful copyright infringement here.

Contact Vondran Legal®

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, law firms, realtors and brokers, movie producers, architects 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 image counsel (ex. you are an insurance company) in California or Arizona, we are happy to discuss.

About the Author

Steve Vondran

Thank you for viewing our blogs, videos and podcasts. As noted, all information on this website is Attorney Advertising. Decisions to hire an attorney should never be based on advertising alone. Any past results discussed herein do not guarantee or predict any future results. All blogs are written by Steve Vondran, Esq. unless otherwise indicated. Our firm handles a wide variety of intellectual property and entertainment law cases from music and video law, Youtube disputes, DMCA litigation, copyright infringement cases involving software licensing disputes (ex. BSA, SIIA, Siemens, Autodesk, Vero, CNC, VB Conversion and others), torrent internet file-sharing (Strike 3 and Malibu Media), California right of publicity, TV Signal Piracy, and many other types of IP, piracy, technology, and social media disputes. Call us at (877) 276-5084. AZ Bar Lic. #025911 CA. Bar Lic. #232337

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