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Receive a demand letter from Pixel IP for alleged use of copyrighted Photo?

Posted by Steve Vondran | Jun 20, 2017 | 0 Comments

Unlawful use of copyrighted pictures, images, graphics, and logos on your website can lead to demand letters

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Introduction

If you received a legal demand letter from Pixel IP law firm in Atlanta Georgia, this blog may be helpful to you.  More and more companies are sending out legal demand letters (many of our clients refer to them as “legal extortion letters”) alleging improper commercial use of photographs, images, art, and other digital content on corporate websites.  The letters may demand thousands of dollars to settle the case while not offering any release of claims (written release of liability for copyright infringement).  When companies get these letters, they often don't know what to do, and sometimes they even think the letter is a form of Nigerian scam.

Photographs and images subject to copyright protection

As we have talked about on other blogs, copyright law protects any “creative works of authorship fixed in a tangible medium of expression.”  This could be many many different things such as:

  • Picture
  • Photo
  • Art work
  • Painting
  • Illustration
  • Cartoon character
  • Company logo
  • Creative text
  • Movie clip
  • Sound clip
  • Song
  • Lyrics
  • Jewelry
  • Poetry
  • Many other things

What's more is, the creator of the work does NOT have to register the copyright (which is usually inexpensive to do) in order to seek to enforce their rights.  That means, you may not see a copyright symbol (©) on a particular work, but that DOES NOT mean that it is not protected by federal copyright law.  This is a common misconception.  So when you receive a demand or cease and desist letter, you have to take a close look at the work at issue, and see if there was a copyright symbol or not (if the work was NOT registered this could affect the remedies available to the Plaintiff).

Demand letter from Pixel IP law firm

Your letter may try to intimidate you by quoting the federal copyright law and DMCA act.  For example, it might read:

            A.  RIGHTS UNDER FEDERAL COPYRIGHT LAW

United States Copyright Law grants exclusive rights to the copyright owner of an image for use of that image, including the rights to:

  • Reproduce the copyrighted work;
  • Prepare derivative works based on the copyrighted work;
  • Distribute copies of the copyrighted work to the public; and/or
  • Display the image.

    See 17 USC §§ 106 and 501. When those rights are infringed, the copyright owner is entitled to recover damages suffered as a result of the infringement, regardless of whether you acted knowingly or intentionally. See 17 USC §504. Your company, its officers, and third parties performing work for you remain liable for this infringement until it is resolved.  Since PLaintiff timely registered the copyright to the Photograph with the U.S. Copyright Office under registration number XXXX, our client may elect either to receive the actual damages caused by and the profits earned from the infringement or statutory damages of up to $150,000 for willful infringement for each copyrighted work. See 17 USC §504(b) and (c).  “Willfulness” has a particular meaning under copyright law. Specifically, “willfulness” means that the infringer either had actual knowledge that it was infringing the owner's copyrights or acted in reckless disregard of those rights. Brown v. McCormick, 87 F.Supp.2d 467, 482 (D.Md.2000).

    B.  RIGHTS UNDER THE DIGITAL MILLENNIUM COPYRIGHT ACT

    If someone believes you took the copyright symbol off (removed it, or cropped it out of the photo, got rid of the attribution) and reproduced the image, photo, or art without the symbol attribution the letter might also seek additional damages and remedies under the Digital Millennium Copyright Act (“DMCA”), 17 USC §1202(b), which states that:

    “No person shall, without the authority of the copyright owner or the law, intentionally remove or alter any copyright management information knowing, or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.”

    The letter may thus seek combined damages – actual or statutory damages for copyright infringement, and statutory damages for the removal of his copyright management information.

The demand letter might also request that you preserve all documents or evidence (a tactic to scare you into believing a litigation will be filed if you do not settle the case).  We wrote a blog about spoliation of evidence and the risks of deleting infringing software, movies, photos and other digital content during a dispute.

Things to consider if you receive a letter alleging infringement of copyrights

Here are some things to think about if you receive what we jokingly refer to as “the love letter.”

1.  You need to decide if you can handle this yourself, or need a copyright lawyer

2.  You should think about the pros and cons of ignoring the letter (if that is on your mind)

We offer a free initial consultation to persons who have received a letter so contact us below to take advantage of that.

Contact a copyright infringement law firm

Our intellectual property law firm can help both Plaintiff (copyright right's holders) and those accused of illegally using the copyrighted content on a website, blog, piece of art, music mixing, theft of software code, movie infringement or other types of infringement cases.  In many cases (such as responding to legal demand letters) we can fix a low flat rate legal fee to help take the matter off your plate (so you can run your business) while we seek to settle your case, or otherwise make it go away with a confidential copyright release in most cases.  For more information, call us at (877) 276-5084.

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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