Hi, I received the following email a few days ago:
JA: What written documentation do you have?
Customer: 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:
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:
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.
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.
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.
JA: Have you talked to a local attorney? Has anything been filed in court?
Customer: Not yet nothing has been filed
JA: Anything else you want the lawyer to know before I connect you?
Customer: 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.