Intellectual Property Law

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I received the following email a few days ago: Dear Sir or…

Hi, I received the...

Hi, I received the following email a few days ago:

Lawyer's Assistant: What written documentation do you have?

Dear Sir or Madam,
I hereby notify you that the photographer xxxx xxxx, Berlin (www.xxxxxx.com) has entrusted me with the representation of its legal interests in this specific matter. In my capacity as attorney I hereby verify that I am duly authorized to act in this matter.
In the name and on the authority of my client I must inform you of the following state of affairs:
I.
My client was made aware by www.photoclaim.com that you have published a photograph taken by my client on the website under the URL:
https://xxxxxxxx.com
 
With this act of publication, you have violated the copyrights of my client.
The matter in dispute relates to the photograph reproduced in this letter which you are using in breach of the copyrights, with particular reference to the moral rights, of my client.  Your website has been secured by our firm to the extent necessary for use as evidence in court and will be produced by way of such evidence in the event that you should contest the claim.
No agency that my client works with confirmed a license purchase from your side. Should you have a valid license, please forward us the licensing agreement. Unfortunately, you didn’t identify my client as the copyright owner as it would be due to any agreement.
II.
With the publication of the photograph you have acted in violation of the copyrights due to my client as holder of the copyright, in particular the right of distribution pursuant to section 17 of the German Copyright Act (UrhG), as well as the right to make works publicly available pursuant to section 19 a UrhG. There can be no doubt that the photograph is a copyrighted work within the meaning of the Copyright Act.
You are not entitled to disseminate the photograph, as you have done in flagrant disregard of the copyrights and moral rights of my client. The appropriation of third-party photographs without the consent of the rights holder represents a violation of copyright law. At no time did my client agree to the publication of the contested photograph in its present form.
The deliberate act of incorporating the photograph into your website is sufficient cause for us to assert the contested use by you of the photograph in question. It has no bearing on the claims in the present matter whether the rights of my clients have been deliberately or merely accidentally violated. Instead, the sole focus of the present matter is on the fact that the photograph was used without consent in the manner described above.
III.
To effectively rule out the risk of any recurrence, it is necessary to issue a cease and desist declaration enforced by penalty for the future.  I therefore request that a declaration to cease and desist is submitted by
22nd August 2017.
On the last page of this letter you will find a pre-formulated declaration to cease and desist enforced by penalty, which you are at liberty to use.
A jurisdiction clause is common practice that goes beyond the infringement notified. The reimbursement of damages and legal fees is a legal obligation and the placement thereof in the declaration also goes beyond the infringement notified. The reimbursement of damages and legal costs and the declaration to cease and desist are two claims that are not connected to each other. You are, of course, also free to draft your own declaration to cease and desist. I would, however, draw your attention to the risk that an incorrectly or inadequately formulated declaration may not be sufficient to obviate the risk of reoffending.
If we do not receive a signed declaration to cease and desist from you by the stipulated deadline, we will assume that you have declined to accept this obligation. In this case I am instructed to take further legal action immediately.
We hope that a lawsuit won’t be necessary and we will help you with any questions you may have.
Yours faithfully,

Lawyer's Assistant: Have you talked to a local attorney? Has anything been filed in court?

Not yet nothing has been filed

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

I replied saying that I was not aware of any copyright issues and I had removed the photo in question in order to resolve the issue.

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Answered in 8 minutes by:
8/22/2017
Law Educator, Esq.
Category: Intellectual Property Law
Satisfied Customers: 125,908
Experience: Attorney practicing all aspects of copyright/trademark law
Verified
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
What is your question for us about this situation?
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Customer reply replied 11 months ago
The website that the photo was on is a business website, however it gets about 20 visitors per day and has not generated any clients or revenue. I created it almost 2 years ago and have not maintained it or anything since then.I don't mind paying a small fee ($100 or so?), but they are asking for over $2,600 which sounds rather high. They are in Germany, and I am in the USA. I don't think their photo was actually registered or copyrighted in the US or Germany. They are asking for $2,600+ or they will move forward with a lawsuit? How should I reply? I have seen this same attorney has sent other people similar messages, but I don't see any resolutions posted.
Thank you for your reply.
If you used the photo without proper licensing, then it is a violation of both German and US Copyright laws.
However, these companies are more in the business of seeking to scare people into paying licensing fees to them, as it would cost them more to sue than the $2600 they are seeking. Do not sign anything they ask you to sign and do not admit to not having license to use the photo. Because the German courts can really hammer foreigners and are known for doing so, you can inform them that you believe their demand is excessive and while you are not admitting any violations you would be willing to settle this for the typical $50 licensing fee, they will come back with a reduced demand. You will have to go back and forth with them several time usually.
Of course, sometimes they will not come down to less than $500-$800US and if that is too much for what you believe you did, your next step is hiring a law firm in Germany that deals with these issues all the time, but they too will cost you about $200-$500 to negotiate a resolution depending on the firm you use, but you need to use one if your own negotiation fails because if these cases go to court the judgments can end up in the tens to hundreds of thousands of dollars for just one photograph infringement because of the penalties imposed under the laws for violations.
Please do not forget to leave positive feedback by clicking on the 5 stars at the top of your page, as the experts are not employees of the site and get no credit for spending time with customers unless they leave positive feedback. Thank you.
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Customer reply replied 11 months ago
I have also heard some advice letting them know that I think this is a scam and if they would like to have any further communication that it would need to be done through mail. I do not know if they have access to my mailing address. Do you think this a good idea?

Thank you for your reply.

I would not make the allegations of scam right away. You need to respond to them via the same means they sent you the notice, you do not need to give them your mailing or residence address. Try the negotiation first. If you cannot negotiate them down, engage a German attorney to force them to reduce their demands. Accusing them of being a scam serves no real purpose.

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Customer reply replied 11 months ago
I was thinking that would force them to go through the trouble and try to find my actual address (which should be fairly hard to come by as my site is listed privately).Also, he wrote: "However, according to §97 UrhG you are also obliged to sign a penalty enforced Declaration to Cease and Desist so that my client can be sure that you do not illegally publish or make others to publish this photograph again. You can find such a declaration appended to my initial message (Abmahnung)."Why am I obligated to sign a "penalty enforced" declaration to Cease and Desist?? The declaration they sent me was a long legal document that basically said that I agree to all their terms and their costs/ fees... which I obviously didn't sign. I signed a simple piece of paper saying with a simple statement that I have removed the photo in question. Is that good enough or does it need to be more than that?

Thank you for your reply.

YOU ARE NOT REQUIRED TO SIGN ANYTHING, DO NOT SIGN IT. You signing saying the picture was removed is not an admission you violated the copyright law, so that is fine. Do not sign anything else, they are trying to intimidate you to admit to the violation, which would then give them evidence against you.

Like I said, make them an offer in settlement, denying you committed any such violation, and if they refuse to negotiate you need a German attorney to do battle with them and they will get them to drop the claim or take considerably less in settlement.

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Customer reply replied 11 months ago
Ok, thanks. I will try that
Thank you for your reply.
Please do not forget to leave positive feedback by clicking on the 5 stars at the top of your page, as the experts are not employees of the site and get no credit for spending time with customers unless they leave positive feedback. Thank you.
Ask Your Own Intellectual Property Law Question
Customer reply replied 11 months ago
What about something like this:I do not admit to any wrong doing. The website in question gets less than 20 visits per day and has never generated a client or revenue. Your suggested charges appear excessive. In the interest of a quick resolution to this matter, I'm willing to offer $200 for a settlement. If you choose not to accept this, I will move forward with obtaining an attorney to dispute any accusations made against me.

thank you for your reply.

That is a perfect response.

Law Educator, Esq.
Category: Intellectual Property Law
Satisfied Customers: 125,908
Experience: Attorney practicing all aspects of copyright/trademark law
Verified
Law Educator, Esq. and 87 other Intellectual Property Law Specialists are ready to help you
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Customer reply replied 10 months ago
Hi, I have received the following response:Dear Mr. xxx,
Thank you for your reply and settlement offer. Unfortunately, we cannot accept your offer of $ 200, which does not cover damages which incurred due to the infringement, not to mention legal costs.
The damages of the infringement are not calculated on a per view basis but on how much a legitimate licence for this use case would have cost (licence analogy). My client sells his licences only based on individual negotiations and orientates his licencing fees according to the recommendations of the MFM-tables. The MFM-tables represent the industry’s average licence fee, based on thousands of transactions during the period of one year differentiated for each specific use case.
Unless you imply an extraordinary lack of success of your business – for which I kindly demand corresponding proof – the industry average licence fee for use in the case in question. Only when I receive the evidence we can think of a solution that works for both sides.
Please proceed until 4th September 2017.
Customer reply replied 10 months ago
The website advertises a service for me to create apps for potential clients, it has never generated a client. I have only ever gotten 2 inquiries and neither of them worked out. I don't know how I prove this. I can screenshot my analytics for my website but I don't know if that would be enough.

Thank you for your reply.

Tell them that as you never even came close to 100 transactions, much less thousands they claim, your offer is $200 and since they have not made any reasonable counter offer, you consider further contact with you to be harassment and they are to cease and desist.

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Customer reply replied 10 months ago
I think they are saying that the MFM Tables came up with "reasonable" licensing fee's based on the average of "thousands" of transactions... not necessarily suggesting that my site has thousands of transactions. Would that change the response?

It still does not matter, that is wishful thinking on their part. Remember, they have to come to the US to try to sue you and it is going to cost them way more than they want from you now to do so.

Ask Your Own Intellectual Property Law Question
Customer reply replied 10 months ago
You think I should include a screenshot of my poor statistics of my views as the only "proof" I can provide? Otherwise I don't know how to prove a negative.

Thank you for your reply.

You can include a screenshot of the statistics, yes.

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