Dr. Elliot McGucken Demand Letters - Photo Infringement [What you need to know to avoid a lawsuit being filed against your company and potentially its officers and directors for personal liability]
Sample of the Copyrighted Work (this is just one photo there are many others).
Did you receive a Legal Demand from our IP law firm dealing with Elliot McGucken Photography? Here is what you need to know. We are willing to work this out amicably, but only if you come forward promptly and take responsibility for your actions. This page will address many of the questions we have received in regard to infringing my client's photographs. We do these these cases fairly and promptly but not when you or your company is not being realistic. In these instances, you will face a federal copyright infringement lawsuit.
Another example of the fine art of Dr. Elliot McGucken. All his works are copyright protected. Any unlawful use is subject to an infringement action.
Artist Credentials and Accolades
My Client is an accomplished scholar, photographer and educator. He is well known across the United States. He does not sell stock photos.
Here are some of his highlights over many years earning a doctorate degree, teaching, educations and traveling:
"Elliott McGucken caught fall in all its glory on Friday at North Lake near Bishop, Calif. Colors at the high-elevation lake are now past peak, but many other places have yet to pop."
2. CaliforniaFallColor.com - Used with permission and proper licensing
3. McGucken Flickr photos - copyrighted - no use without a license.
4. Published author (Amazon.com)
6. Featured in BusinessWeek (Professor and Artist) -
"Elliot McGucken, a professor of entrepreneurship at Pepperdine University, bemoans that "a lot of schools have dismissed the idea of teaching the great books." In a recent lecture at Pepperdine, McGucken points out that that one lesson of the classics is, "Chance favors the prepared mind. Instead of viewing risk as a bad thing, we can also view it as a good thing." The classics inspired America's Declaration of Independence, which McGucken sees as an entrepreneurial document. Life has a way of "calling us to adventure," he concludes." --BusinessWeek
7. Taught a class is Art entrepreneurship -
"Photography is quite an investment, and there's "risk" in every outing. In all too many ways modern technology has allowed the photography to be separated from the photographer, whence other folks--oft large corporations/real estate companies/publishers--are able to profit off the photography without compensating the photographer."
This is just a sample list of achievements and accomplishments. As can be easily seen, this is NOT a stock artist photo looking to capitalize on run-of-the-mill images. This is true art and fine photography using the latest equipment, and risking time and capital in every shoot.
Top 10 Frequently Asked Questions
Here are some of the main questions people have when we seek to amicably resolve these claims (out of court if possible).
Please review these closely. If you want to discuss settling your case, send us an email through our contact form. We do not want to get into an argument, but if our client is not compensated you face a real risk of a federal court lawsuit against officers and directors of the company.
Potential personal liability for officers and directors explained
1. I did not use the photo(s) intentionally!
You don't have to. The law recognizes "willful" vs. "non-willful' infringement. Either can lead to copyright infringement claims. Even "innocent" infringement can be actionable. The copyright laws in the United States provide for "statutory damages" of $750 to $150,000 per infringement PLUS attorney fees to incentive protection of the artists rights. While this may seem like a lot, the law is designed to protect the hard working artist who creates beautiful art and photography with their own financial risk and the "sweat of their brow."
2. I thought maybe this was a "fair use" of his work
If you believe the use of Dr. Elliot McGuckens work is a "fair use" under the copyright laws, please prepare a detailed analysis of the four factors so that we can review. Cases are routinely commercial in nature, and typically involve a wholesale theft of my clients photos and images for commercial purposes. However, if you believe you are an exception to this rule please provide your detailed analysis, or have your copyright attorney provide same so we can review and discuss.
3. How much will this cost me to settle?
We are willing to be reasonable, but we will not be ignored and we will not entertain any offer under $1,000 for the simple fact that it does not take into account statutory infringement numbers, attorney fees (enforcement or pursuit fees), and does not compensate us for our enforcement efforts. Each case is evaluated on it merits, and we will review any financial hardships and any honest, good faith mitigating factors.
4. The business never made money, I will just close it down.
While you may never had made a penny on the photo, or received no page views, or very little financial monetization, this does not mean you cannot be held liable as an infringer. If willful infringement can be shown and properly alleged, we will seek to hold officers and directors of the company PERSONALLY LIABLE for the infringement, meaning, your personal assets are on the line. The law is designed to protect artists who are being pilfered by small companies that will "wave the white flag" when busted for photo infringement.
5. I feel like this is extortion or entrapment
Where is the extortion or entrapment? You are the one that posted the photo (without seeking a license which you could have easily paid for to compensate the artist) but for whatever reason, you did not. It's like stealing a CD from BestBuy because you didn't want to pay the fee and then using that on your commercial website (which is generally the scenario we deal with). So no, there is no extortion, and you were not entrapped. You brought this upon yourself so the best bet is to OWN UP and TAKE ACCOUNTABILITY and RESOLVE YOUR LEGAL ISSUE. If not, we may be forced to resolve it through the federal court system. We have appeared in over 110+ federal copyright infringement cases.
6. Are you really going to file a lawsuit?
Yes. Where cases "check all the boxes" we will be forced to sue your company and/or its officers and directors. Once this happens, we will be forced to resolve this in federal court before a judge or jury.
7. I immediately took down the image so what's the problem?
Thank you. That is certainly ONE MITIGATING factor, but this does not RESOLVE THE ISSUE or CLOSE THE BOOK on the liability of the company and/or its officers and directors. Your best bet is to contact us to discuss a formal resolution and payment of past licensing fees, infringement and enforcement fees, etc.
8. I have never heard about "statutory damages" in copyright photo infringement cases, what is this?
A copyright infringement Plaintiff (who has a registered copyright photo - as we normally do) is allowed to "elect their remedies" (either seek statutory or "actual damages"). Watch these two videos to understand these legal concepts - general legal information only.
A. Overview of Federal Copyright Infringement Damages
B. Specific video on "Actual Damages" option for copyright photo holders
It's either-or, whatever is the BEST CASE for the photographer.
9. Are you willing to make a deal to get this case settled and avoid a legal appearance?
Yes, but you have to act fast. We consider people who pretend (to themselves) that this is a "SCAM" and who ignore our legal demand letters and refuse to accept legal accountability, we consider them to be dodgers who "hope the situation will just go away." However, if your case meets our criteria, you will be named as a Defendant in a federal court lawsuit. Once we are forced to file suit we may not be so eager to be nice and amicably resolve the situation that could have been easily resolved by coming forward in good faith.
10. What forms of payment do you take?
Certified checks and wire transfers.
Contact our Copyright Claims Department to discuss settling your case.
We appreciate the fact that this case may be a nuisance in your life, but it is a nuisance to my client as well who simply wants to be compensated for his work. If you have a license or paid to use his photographs or artwork, please send us proof. If you want to discuss settling your case and avoiding a federal court lawsuit against your company, and potentially officers and directors, please email us through the contact form.
"AVOIDING PROBLEMS RARELY MAKES THEM GO AWAY AND IGNORANCE OF THE LAW HAS NEVER BEEN A VALID DEFENSE."