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Fleur and we spoke a few weeks back about a copyright

Hello,My name is***** and we...
Hello,My name is***** and we spoke a few weeks back about a copyright infringement I received from a German lawyer (Filipp Bickel). I would like to speak with you again to see if you can create a cease and desist for me against the lawyer from Germany. He is treating me with a lawsuit on the behalf of his client for copyright infringement if I do not pay for the photo I mentioned during our call. At first, I agreed to pay this lawyer for so-called "damages" however, now knowing that I was using the photo under the fair use act, I want to recant my agreement. I believe I should not have to buy anything to this lawyer. Not only does my use of the photo fall under fair use because my website is an educational site but at the time I posted the image, my website was (and still is to this current moment) a non-commercial website. So, no money was made therefore I do not owe his client any "loss wages" Also, the image was altered before I posted the article, and the image was taken down imminently after the lawyer accused me of copyright infringement. Will you be able to help me with this?Thank You For Your Time
Franz Saint-Fleur(###) ###-####**@******.***
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Answered in 7 hours by:
3/9/2018
Robert McEwen, Esq.
Category: Intellectual Property Law
Satisfied Customers: 18,161
Experience: Licensed Texas General Practice Attorney
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Thank you for using JustAnswer and for requesting me to answer this.

I believe the last time we spoke I suggested that you determine if this copyright was registered in the US prior to your use. Did you find that out?

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Customer reply replied 5 months ago
I did email the lawyer asking to see proof of registration in the US. This is what he emailed me back.Dear Mr. Saint-Fleur,Thank you for your email.In Europe photographs do not have to be registered - copyright attaches in the moment of creation. I will point out to the Berne Convention. As both the US and Germany signed this convention, the rights of the German photographer are protected in the US no matter if he registered his works in the Copyright Office or not. Further Information you will find here: http://www.wipo.int/treaties/en/text.jsp?file_id=2836980.Unfortunately, I have to ask you again to initiate the payment of 804.80€ latest until 20 February 2018.Kind regards,

This attorney either doesn't know what he's talking about, or does (and is bluffing).

The Berne Convention is a treaty that the US has signed on to, but US law still requires that foreign unregistered works be registered with the US Copyright Office to have any statutory damages or attorney fees and costs if there were to be a case brought against you in the US. Section 412 of the Copyright Law is the law that says that registration is required if they want to get statutory damage and attorney fees. Otherwise they have to prove their actual damages as a result of the infringement and can't get any attorney fees and costs. Given what you've told me about what happened, it's unlikely that they'll be able to prove any actual damages.

In Elsevier B.V. v. UnitedHealth Group, Inc., 2010 U.S. Dist. LEXIS 3261 (S.D.N.Y. Jan. 14, 2010), the Southern District of New York addressed the question whether, by virtue of the Supremacy Clause, the Berne Convention supersedes Section 412 with respect to unregistered foreign works. In other words, may plaintiffs suing to enforce copyrights in unregistered foreign works recover statutory damages and attorney’s fees? The answer hinged on whether Berne was a “self-executing” treaty under U.S. law – that is, a treaty which becomes law upon ratification. By contrast, Congress must affirmatively enact treaties which are not self-executing in order for their provisions to take effect under domestic law.

The court concluded that the Berne Convention was not self-executing. In adopting the Berne Convention Implementation Act, Congress explicitly stated that the treaty was “not self-executing under the Constitution and the laws of the United States”; that U.S. obligations under Berne “may be performed only pursuant to appropriate domestic law”; and that U.S. copyright law, as amended by the Implementation Act, satisfied U.S. obligations under Berne. Moreover, Article 36 of Berne itself states that the treaty is not self-executing:

“(1) Any country party to this Convention undertakes to adopt, in accordance with its constitution, the measures necessary to ensure the application of this convention.

(2) It is understood that, at the time a country becomes bound by this Convention, it will be in a position under its domestic law to give effect to the provisions of this Convention.”

Congress passed the Implementation Act specifically to revise U.S. law to comply with the Berne Convention. Though the Implementation Act amended other sections of the Copyright Act, it deliberately left Section 412 unchanged. For instance, Congress eliminated the requirement in Section 411(a) that foreign works be registered as a prerequisite to maintain an infringement action, finding the requirement to constitute a prohibited formality. On the other hand, Congress concluded that the statutory incentives for registration in Section 412 “are not preconditions for the ‘enjoyment and exercise’ of copyright” because “they do not condition the availability of all meaningful relief on registration, and therefore are not inconsistent with Berne.”

Because the Berne Convention was not self-executing, the court concluded that it could not preempt Section 412 of the Copyright Act. Owners of foreign works who might seek to enforce their copyrights in the United States would thus be well advised to register their works in order to maximize the tools and remedies available to them in the event of infringement.

Now they can try to sue in Germany, but likely don't have any jurisdiction over you simply by virtue of you using the image. Rather, to have a valid enforceable judgment they'd have to sue in the US, claiming violations of US copyright law, but as I said before, without registration they don't have much of a claim of anything.

As far as a "cease and desist" letter is concerned, that's not something that I can help with, as it would be considered legal representation (drafting would mean that I'm acting on your behalf as your attorney) and that's not allowed under the terms of service of this site.

Furthermore, a cease and desist letter would probably be useless anyway. A cease and desist letter is to tell someone to stop doing something that they have no right to do in the first place, otherwise you will sue. But an attorney does have a right to seek a settlement or demand for infringement. So if the attorney does not cease and desist his activities, you still have no case to sue him for. So there's no "bite" to the "bark" of the cease and desist letter. Does that make sense?

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable.

Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it positively (3 or more stars). Look for the stars on your screen (★★★★★). You may need to scroll left/right/up/down to see these stars, but note that the rating is what closes out this question, so it is necessary that you do so.

Thank you, ***** ***** luck to you!

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Customer reply replied 5 months ago
thank you, ***** ***** want him to stop bothering me. I plan on emailing him stating that I recant my agreement to pay basic on the following.- Fair use as my site is for educational purposes at the time I posted it.
- No profit where made on behalf of the image due to the fact that my site is a Noncommercial site.
- The image was altered before posting
- Him never show proof that the image was registered in the US.What do you think and yes I will make sure to give you an excellent review and share on Facebook.

Fair use is a defense, not a primary strategy, but that makes it less likely that they will sue. No profit combined with no registration means that they can't show economic loss, so that's good. As far as altering, that's not as strong of an argument, because if it's still essentially the same image, then it's still infringement. Only if you can look at the second image and not be able to tell that it's a copy of the first one would that not be infringement.

If there's nothing else, please rate this answer.

Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it positively (3 or more stars). Look for the stars on your screen (★★★★★). You may need to scroll left/right/up/down to see these stars, but note that the rating is what closes out this question, so it is necessary that you do so.

If you feel that I have gone above and beyond in this answer (my average answer is about 10 minutes) bonuses are greatly appreciated. Thank you, ***** ***** luck to you!

▼ RATING REQUIRED! ▼ Please don't forget to Rate my service positively. It's only after you rate that I am credited.

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Robert McEwen, Esq.
Category: Intellectual Property Law
Satisfied Customers: 18,161
Experience: Licensed Texas General Practice Attorney
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