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How to handle a photography infringement demand letter

Posted by Steve Vondran | Jul 14, 2017 | 0 Comments

Photo Infringement Basics – Negotiation tips from Attorney Steve® The Photo Lawyer™

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Introduction

This blog is for companies and their webmasters and social media marketing companies.  It deals with a general strategy for handling photo infringement letters.  This blog is not legal advice or a substitute for legal advice.  This is general information only.  If you are nervous about being sued, read this blog and call us at the number below for a no cost initial consultation.  These cases can be settled without a lawyer but sometimes legal assistance is required especially where the photographer or law firm you received a cease and desist letter from likes to file lawsuits.  We have seen legal demand for over $8,000 for use of just one photo on facebook, so these cases can be very stressful for business owners.

Case example

Company hires a webmaster company (ex. “Unique Social Media”) to handle their internet marketing campaigns.  The advertising firm makes routine daily posts on the companies facebook fan page, twitter account, tumblr, pinterest, and youtube account.  Company accidentally (or sometimes intentionally or “willfully“) uses a photograph that they did not license from a commercial licensing photo company such as Getty images, Big Stock Photo, Fotolia, iStock,

The Demand letter – background / due diligence before responding

1. Know who you are dealing with.  Knowledge is power. Lack of knowledge is ignorance and can lead to bad results.

A.  Lookup the law firm – do they handle intellectual property cases or is this a “uncle joe” case (i.e. the photographer has a friend in family law that is helping them try to recover money)?  This can be important.  Look up the attorney's website and read about them.  Do they talk about photo infringement?  Copyright law?  Intellectual property law?

B.  Look up the photographer on the Federal Pacer case lookup – do they file lawsuits?  Click here to watch my video on how to research a copyright troll.  If the photographer or artist has a history of filing lawsuits, you can expect them, typically, to hold out for a larger settlement amount (especially if the photo is registered with the copyright office – see below).

C.  What does the photographer charge for their commercial licensing fee?  If the photographer has online pricing (or reviews) which indicate how much their photos sell for (or license for) then this can be a gauge as to what the photo is actually worth and what your settlement amount might have to be.  Of course, if a photo attorney is involved, they will normally want to get paid as well which can jack up the settlement amount.

2.  Is the copyright actually registered with the U.S. Copyright Office?  This is a critical question, because if it is not, they may not really be that interested in pursuing the matter in federal district court.  If they did not invest in their photo, they may just be posturing to see if they can get a quick settlement.  Also, if the photo, image, gif, jpeg is not registered, this may prevent Plaintiff from being able to recover their attorney fees in federal court, which would reduce their leverage they are purporting to have over you or your company.

3.  Do they have any actual evidence of infringement?  The proof is in the pudding as they say.  If they have any evidence against you, I would always request to see it.  In order to proceed in court the proof must be available to show infringement by a preponderance of the evidence.  Yes, there are defenses to copyright infringement that we can help you explore.  Also make sure to check out our popular affirmative defenses list.

These are the main things I would look into before ever responding to a lawyer's demand letter.  There may be other things depending upon the type of case and your case facts.

Podcast – Listen to Attorney Steve® explain his top 11 tips.

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Reasons not to ignore the cease and desist letter

Some of the main reasons not to ignore a copyright demand letter are the following:

1. You could be sued (the lawsuit becomes a public record and this could hurt your business image if someone searches your company name online).  Not only that, but you could be liable for serious damages up to $150,000 per copyrighted work infringed.  I know that sounds crazy, but that's what the law says.  Bear in mind the law is the product of lobbying by major movie, music, software, literary and other content creator organizations.

2.  You could be held personally liable (copyright law allows a Plaintiff to sue officers and directors of the company who have a financial interest in infringing conduct)

3.  By ignoring the demand letter you could be making this a bigger issue than it needs to be.

Attorney Steve explains Copyright Infringement Damages

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Handling negotiations

People often ask me “how much do these cases settle for.”  As you can probably imagine, the answer is “it depends.”  It depends on a lot of factors such as:

  1. How many photos did you infringe?
  2. Was the infringement innocent or in bad faith (willful / intentional)
  3. Did you immediately take down the photo (or product) when notified of the infringement?
  4. Is there any realistic argument for “fair use” (ex. a totally “transformative” use of the photo)
  5. Does the commercial photographer make a lot of money off the photos at issue (large licensing fees)?
  6. What is the financial situation of the company, including officers and directors?  (is there incentive to pursue the case in Court)?
  7. Were the photos registered with the United States Copyright Office?
  8. Did the alleged infringer make money off the infringement?  If so, how much (a photographer may want that “disgorged”)
  9. Other factors.

Generally you always want to start low in every negotiation, and raise your offer begrudgingly.  Go up in small increments, and the timing of your responses can be important.  Raising financial hardship and good faith mitigating factors can also be important.  To me, negotiation (and handling the settlement agreement) are why you would pay a lawyer to handle this.  There is an art to it.  Generally speaking, I would say minor infringements may go from a couple hundred bucks to a five thousand or more, but serious infringements (such as willfully using a photo on a “derivative” product (such as putting a photo on a book cover, wall art, mural, outdoor furniture, cornhole or other game, wallpaper, or other items being sold on Etsy, Amazon, eBay, Zazzle or other online stores) can go for much more, including potentially up to the $150,000 maximum amount provided for under the copyright statute.  See this video for copyright infringement damages.

Sample photo infringement lawsuit filed in New York

Here is one photographer that we came across that has sued for his infringing work.  The case was filed in New York District Court.  This case was brought by Bresser Law PLLC.  We have also received a demand letter from Gafni & Levine.

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Sample allegations in the complaint above

Here is some language from the photo complaint:

“Plaintiff Tenney is a professional photographer. He operates his business to promote his creative endeavors, and Plaintiff's livelihood is based on his ability to receive revenue as a result of his creative endeavors. Plaintiff is a Professional Member with the American Society of Media Photographers (ASMP) and has been actively and consistently engaged in his professional practice since 1991. 10. Plaintiff creates unique, original, and insightful photographs related to industrial machines and technology, with example subject matter including spacecraft, defense, exotic cars, fire safety, and heavy construction.

Plaintiff provides professional photography services via his photography business George Tenney Photography, LLC, and may be contacted via information provided at his website located at http://www.georgetenney.com.

Without Tenney's authorization or consent, the Defendants reproduced, distributed, publicly displayed, transmitted and otherwise used the Photographs on the Website, all in violation of the Copyright Act, 17 U.S.C. §§ 106 and 501.

On information and belief, Defendants knew, or should have known, that they do not possess any rights to use the Photographs on the Website or otherwise.

As a direct and proximate result of Defendants' copyright infringement, Tenney has suffered injuries and damages, and is entitled to his actual damages and Defendants' additional profits, direct or indirect, attributable to Defendants' infringement of the Photographs, pursuant to 17 U.S.C. § 504(b), or if and as Tenney opts in his sole discretion, statutory damages in an amount of up to $30,000 per work infringed, or $150,000 per work infringed willfully, pursuant to 17 U.S.C. §504(c).

Tenney further is entitled to recover a reasonable attorney's fee and his full costs pursuant to 17 U.S.C. § 505.”

As you can see, when a copyright complaint is filed, Plaintiff's can get pretty aggressive over one or more photos used without their consent.  Note that Defendant may also seek attorney fees if they can prevail.

Contact a Photo Infringement Law Firm

We offer no cost initial consultations to companies and individuals (including webmasters, marketing and advertising companies) who received a cease and desist letter, subpoena, notice of a federal court lawsuit or legal demand letter.  Call (877) 276-5084.  We offer low flat rate fees for most non-litigation cases.  We can help you explore your options, negotiate settlements, and ensure the copyright release agreement has favorable terms that protect you and don't leave you exposed to future litigation.

We also represent artists and photographers who have used reverse image search tools to find infringement online, subject to certain criteria listed on this blog.  Call us to discuss your case or email me at the address on the right side of this page.

About the Author

Steve Vondran

Welcome to the SHORT BIO page for Attorney Steve®  (Yes, I was able to get a trademark for Attorney Steve®) Click here to go to a more COMPLETE BIO. AZ Bar Lic. #025911 CA. Bar Lic. #232337 Introduction I have done a lot of things in my 15 years of law practice and in my life in general.  ...

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