Intellectual Property Law

Intellectual Property Law Questions? Ask a Lawyer

Ask a Lawyer,
Get an Answer ASAP!

Intellectual Property Law
This answer was rated:

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

Hi, I received the following...
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:
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,
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.
Show More
Show Less
Ask Your Own Intellectual Property Law Question
Answered in 8 minutes by:
8/22/2017
Law Educator, Esq.
Category: Intellectual Property Law
Satisfied Customers: 120,998
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?
Ask Your Own Intellectual Property Law Question
Customer reply replied 4 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.
Ask Your Own Intellectual Property Law Question
Customer reply replied 4 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.

Ask Your Own Intellectual Property Law Question
Customer reply replied 4 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.

Ask Your Own Intellectual Property Law Question
Customer reply replied 4 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 4 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: 120,998
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
Ask your own question now
Customer reply replied 4 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 4 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.

Ask Your Own Intellectual Property Law Question
Customer reply replied 4 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 4 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.

Ask Your Own Intellectual Property Law Question
Ask Law Educator, Esq. Your Own Question
Law Educator, Esq.
Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Intellectual Property Law
Satisfied Customers: 120,998
120,998 Satisfied Customers
Experience: Attorney practicing all aspects of copyright/trademark law

Law Educator, Esq. is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem.

TonyApopka, FL

Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help.

Mary C.Freshfield, Liverpool, UK

< Previous | Next >

Meet the Experts:

Alex Reese

Alex Reese

Lawyer

3,106 satisfied customers

Experienced in intellectual property law

Robert McEwen, Esq.

Robert McEwen, Esq.

Lawyer

859 satisfied customers

Licensed Texas General Practice Attorney

Dimitry K., Esq.

Dimitry K., Esq.

Attorney

561 satisfied customers

I assist my clients with IP questions that arise in their daily course of doing business.

Thomas Swartz

Thomas Swartz

Lawyer

461 satisfied customers

Twenty one years experience as a lawyer in New York and New Jersey. Former Appellate Law Clerk.

Ely

Ely

Counselor at Law

455 satisfied customers

Licensed attorney in private practice.

Wilton A. Person

Wilton A. Person

Lawyer

352 satisfied customers

MBA, Experienced and Knowledgeable in Intellectual Property Law

BartEsq

BartEsq

Researcher

192 satisfied customers

Juris Doctor

< Previous | Next >

Related Intellectual Property Law Questions
My question is about U.S. copyright law. My father, who
My question is about U.S. copyright law. My father, who passed away in July of 2017, owns copyrights on a number of plays that he wrote. I am the executor and sole beneficiary of his estate. Is there … read more
Robert McEwen, Esq.
Robert McEwen, Esq.
Lawyer
Doctoral Degree
859 satisfied customers
I need a copyright lawyer. I wrote a book. "Los ojos de
I wrote a book. "Los ojos de Carmen." It's a novella for Spanish learners. Two other companies that sell my book created workbooks to go with my book. "Los ojos de Carmen Workbook." I think they should pay me royalties, right? I have the rights. "Los ojos de Carmen" is my original creation. … read more
Lori
Lori
Juris Doctor
256 satisfied customers
I am looking for someone to look for a copyright owner to
I am looking for someone to look for a copyright owner to get permission for photos to present in my boook and someone to cite the documents … read more
Kendell Kelly, Esq
Kendell Kelly, Esq
Kendell R Kelly, Esq
Doctoral Degree
588 satisfied customers
I want to obtain copyrights for a group of songs that I will
I want to obtain copyrights for a group of songs that I will be recording and preforming with my band. Do I need to obtain a separate copyright for each song, or can I accomplish the same thing by cop… read more
INFOLAWYER
INFOLAWYER
Partner
Doctoral Degree
56,244 satisfied customers
I recently received a letter about copyright infringement
Hello, I recently received a letter about copyright infringement regarding a photo I had posted on my blog 2 years ago. … read more
INFOLAWYER
INFOLAWYER
Partner
Doctoral Degree
56,244 satisfied customers
I need someone with copyright, trademark law. I am creating
Hi, I need someone with copyright, trademark law. I am creating posters, political in nature as well as single scene comic strips. They are very patriotic content, images, (e.g. images of Mt. Rushmore… read more
Robert McEwen, Esq.
Robert McEwen, Esq.
Lawyer
Doctoral Degree
859 satisfied customers
I need help with music things. Copyrights and trademarks. If
I need help with music things. Copyrights and trademarks … read more
Gerald, Esq
Gerald, Esq
Juris Doctor
3,182 satisfied customers
I just made my own website and put a 2017 copyright symbol
I just made my own website and put a 2017 copyright symbol at the bottom of the page is that sufficient or do I have to register the website. If so, how much does it cost? … read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
7,307 satisfied customers
I'm a copyrighted artist, and my art has been used by
Hi, My name is*****'m a copyrighted artist, and my art has been used by Univision TV for aprox 5 years, on their version of "saturday night live" show, called Estrellas Dos, and i have not been paid. … read more
INFOLAWYER
INFOLAWYER
Partner
Doctoral Degree
56,244 satisfied customers
I have a copyright on "let there be light" can the new movie
I have a copyright on "let there be light" can the new movie use my title? Book and movie are about religion … read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
7,307 satisfied customers
Copyright lawyer. I am giving a talk and preparing a
This question is for a copyright lawyer. I am giving a talk and preparing a powerpoint presentation. I found an image on the internet I want to use to illustrate a point. When searching for the image,… read more
Roy Hadavi
Roy Hadavi
Attorney
Juris Doctorate
980 satisfied customers
I'm actually asking a copyright/trademark question. I am a
Hi...I'm actually asking a copyright/trademark question. I am a writer and small, independent publisher. I wrote a series that was published in 2005, 2006, 2007 and is actively available and selling n… read more
Robert McEwen, Esq.
Robert McEwen, Esq.
Lawyer
Doctoral Degree
859 satisfied customers
I authored a novel in 1982. I own the copyright. There was
I authored a novel in 1982. I own the copyright. There was some trouble with the publisher, which bankrupted one division. My copyright attorney at that time negotiated an agreement that they would no… read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
7,307 satisfied customers
I am an international in America. I wish to copyright my
I am an international in America. I wish to copyright my material. What is the safest site to do it on? … read more
N Cal Atty
N Cal Atty
Doctoral Degree
59 satisfied customers
Need copyright 21 words and small sketch cost? It is a tech
need copyright 21 words and small sketch cost ? JA: What written documentation do you have? Customer: It is a tech document JA: Have you talked to a local attorney? Has anything been filed in court? C… read more
Thomas Swartz
Thomas Swartz
Lawyer
Juris Doctor
461 satisfied customers
I went through Legal Zoom for copyright and Trademark
Hello, I went through Legal Zoom for copyright and Trademark protection on my patent pending product. The U,S,P.T.O. approved "Life" on my submission for "Life Head Gear". … read more
Robert McEwen, Esq.
Robert McEwen, Esq.
Lawyer
Doctoral Degree
859 satisfied customers
Do you handles the copyright violation case in the little
Hi Pearl, do you handles the copyright violation case in the little rock, AR … read more
N Cal Atty
N Cal Atty
Doctoral Degree
59 satisfied customers
This question concerns trademark/copyright of street
This question concerns trademark/copyright of street photography. Hello. I live in Austin, TX. I have been working on a street photography project in which I shoot recognizable local businesses and si… read more
Gerald, Esq
Gerald, Esq
Juris Doctor
3,182 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x