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    Online use of photographs- copyright infringement

    Jurisdiction / State: Ontario

    Need expert advice [like thelawprofessor] on an issue that my company [proprietorship] is facing. Please help.

    I have a website for my start-up for the last couple of years. I have a used some pictures, available online, on this website, but I have used only pictures that are available for free use and not from any image bank that sells pictures or from any professional.

    My company has now received [thro' email to my id with attached notice] a Cease & Desist Demand and an Offer to Settle Copyright Infringement Claim, to settle in 14 business days from a law firm in Canada.

    The letter states that the firm represents a company [from Hawaii] that runs two websites that sells images and also represents a photographer [California]. The letter states that I have used one of the photographer's images without authorisation and that copyright subsists for this in Canada under Section 5 of the Canadian Copyright Act & the Berne Convention.

    Some of the other key points mentioned are:
    - even if your use was innocent you could be liable for damages upto $20000 plus legal costs
    - have evidence of your use
    - immediately remove
    - if you have a license for use, show us the document
    - REMOVAL does not relieve you from liability for past infringement
    - client prefers to settle claims amicably whenever possible and without recourse to lengthy and expensive litigation. For settlement purposes, the COMPANY [not photographer] offers settlement for a fee of $1,674.00 including legal fees
    - any further legal fees that the company or photographer is forced to incur will be added

    I have never visited the said sites before and did not download this picture from any photographer's collectionand it is against my code of ethics and certainly not the professional ethics that my consultancy company should follow. I had downloaded the said picture from a free wallpaper site, cropped and used a part of it that seemed relevant, purely for a thematic visual appeal. I had the original jpeg and found a website marking on it. This url took me back to the free wallpaper site that I had used and the same poster was still there. They even have a provision for displaying the wallpaper on any website of our choice. I have now saved these two pages.

    [NOTE: I now notice that there is a small line at the bottom of that website which says "If any wallpaper belongs to you or your company, please tell us and we will remove it". No other terms. I saw this only now]

    So, now I can prove without any doubt my source and that it was said to be free. But will they say that that isnot a 'license' to use.

    Will this make them drop the claim? I am, of course, going to remove that image, irrespective of the outcome.

    Also my start-up management consultancy is still struggling and I cannot afford the amount demanded. I am trying to deal with this myself, with some expert advice from this forum and not get a lawyer for that reason.

    Is it OKAY TO WRITE to them with all these facts proving that it was not a wrongful infringement, including mycompany's financial position and request them to drop it. I will, of course remove the image before emailing back my response.

    Is there a better course of action?

    If they disagree, will they still demand payment within the 14 days?
    Is there room for them to agree to a lesser figure [I see that a 20" by 10" image in one of those sites available from $ 10 to 320$, but I guess this is just for an image and not USE??]
    Will people actually take legal action for this $ 1674?



    My need is urgent. So any expert guidance in the next couple of days will help.

    Many thanks for your attention and time.

    /livtawk/

  2. Super Moderator Samaritan & Scholar
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    The unsolicited letter you received (via email, no less) is meaningless.

    It possesses no legal significance.

    It is useless.

    It is a demand for tribute.

    What if I sent you such a letter?

    Are you starting to see the letter's insignificance?

    I hope so.

    The Law Professor will, no doubt, offer a precise legal opinion on letters of this type.

    He will also expound on this area of the law.

    As I always say, he is our preeminent legal expert on this area of the law.

    But, litigation is my bailiwick.

    I know that reputable law firms (and lawyers) don't send out threats.

    And, those few that do, don't do it via email.

    Email is not a widely accepted form of legal notice.

    Legitimate lawyers initiate litigation by lawful service methods.

    That is often a deputy, constable, marshal, or process server effecting service upon you.

    This is nothing more than a slimy and illegitimate attempt to get you to give them your money.

    If you've done nothing, you need not do anything.

    And, even if you have done something untoward, the plaintiff bears the burden of proving their allegations!

    That proof is not established via the internet.

    That proof is established in a court room.

    If the plaintiff resides in Hawaii, they couldn't sue in Canada for many reasons that I need not dictate here.

    Your residency insulates you from this type of lawsuit.

    But, fear not friend, these creeps won't sue you.

    These felonious con-artists want to scare your money from your possession into theirs.

    I suggest you do not communicate with them.

    You are under no legal obligation to explain your actions to anyone.

    Silence is your ally in this case.

    Ignore these silly con-artists.

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  4. #3
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    There is new law being made everyday against these bottom feeding, ripoff artists.



    Newspaper copyright infringement lawsuit filer Righthaven LLC of Las Vegas was hit Wednesday with an order to pay $119,488 in attorney's fees and costs in its failed lawsuit against former federal prosecutor Thomas DiBiase.

    This was by far the largest fee award against Righthaven, but likely will be dwarfed by an upcoming award in Righthaven's failed suit against the Democratic Underground. Before Wednesday the largest fee award against Righthaven was for $34,045 an amount Righthaven says it's having trouble paying or even posting a bond to cover.

    DiBiase has a website covering no-body murder cases, or cases where a murder is suspected but the victim's remains have not been located. He was sued by Righthaven last year over allegations he posted without authorization a story on such a murder case by the Las Vegas Review-Journal.

    U.S. District Judge Roger Hunt in Las Vegas dismissed Righthaven's suit against DiBiase this summer because Righthaven lacked standing to sue him under its flawed lawsuit contract with R-J owner Stephens Media LLC.

    The DiBiase case was noteworthy because his attorneys at the Electronic Frontier Foundation in San Francisco said DiBiase's nonprofit website performed a public service assisting law enforcement officials in bringing justice to crime victims and that his post was protected by the fair use concept of copyright law.






    livtawk, take a gander at this: http://m.lvsun.com/news/2011/oct/26/...nearly-120000/

  5. #4
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    As usual, army judge hits the nail on the head. There is the law and then there is real life.

    The most famous examples of what you are describing are both Righthaven (as mentioned by army judge) and Getty Images. Both send demand letters such as the one you describe. Righthaven was a deliberate attempt to litigate a case in order to take advantage of an overly harsh copyright law as exists. Getty Images sends out probably more cease and desist and demand for payment letters than anyone else but supposedly they have not as of yet taken anyone to court for the few hundred to few thousand dollars they are claiming to be owed.

    I am not going to ask you why you thought the image(s) you used were free. Still it is possible that you could have hired a consultant who left a placed image in your work and you found out, as an innocent party, of a potential claim. It's also possible that the consultant paid for the image but used the wrong copy and the company believes that you are an infringer when, in fact, you are not.

    So what's the bottom line? This is just a demand. Do you think they will take you to court over an allegation of $1,674 when the cost of enforcing it is likely much more? Do you think that if you just took down the image and didn't bother responding that you might not hear anything from this law firm again? It is certainly possible. A high amount of statutory damages would be awarded as a result of willful infringement, which isn't the case. Innocent infringement could reduce the amount to $200. There is no guarantee of attorneys fees. So ask yourself, do you really think that this is a good way to scare an innocent person into settling for an amount much higher than they would probably actually pay if this case went to court?

    I can't tell you what to do but I think you can understand my analysis here and make a good decision. Best of luck to you and be careful with images!
    Forum posts are not legal advice, are for educational purposes only & are not substitutes for proper consultation with legal counsel.

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    Dear army judge,

    Thank you for that very 'real life' interpretation to my problem. I took a look at the article on DiBase vs. Righthaven- very illuminating. There are bodies like Righthaven that are going around suing innocent people wrongfully, for seedy commercial gain?!
    Though in my case, I don't think a boutique law firm from Toronto is going to go this length on a concocted case, don't you think? Maybe there is surely a client, who has noticed that his photograph has been used and wants a lawyer to get into the act to get paid for what is his.
    Only, in this case, my act was not a cyber theft but a misled, thought-to-be-free usage.
    From your advice, I guess I should just not reply, remove the picture from my website and sit tight. Right.

    Thank again for taking the trouble.

    /livtawk/

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    thelawprofessor's Avatar
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    It doesn't sound like you're getting a very good "settlement offer" from this law firm regarding a copyright infringement claim that isn't established at this point as being anything more than an allegation. Replacing the image in question should be simple and is probably worth seeing where things go - or don't go - at this point. Best of luck to you.
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    Thank you thelawprofessor. I found your earlier replies to be the 'voice of the expert'. Thanks for reaching out and sharing your knowledge.
    Your answers have been to-the-point and clear.
    Your observations and those of army judge leave me in a quandary though.

    To take down image is clear.
    To reply or not is the question.

    If I just take down the image, without explaining how I came about to possess that image may actually tantamount to guilt, in their eyes. So I should reply to this lawyer, [and copy their clients, because they are copied on the Cease & Desist] explaining where I got it from and proving it by giving the links to those pages etc.? Would you endorse this 'decision'?

    Thanks once again. I really appreciate it.

    /livtawk/

  10. #8
    thelawprofessor's Avatar
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    Quote Originally Posted by livtawk View Post
    To take down image is clear.
    To reply or not is the question.

    If I just take down the image, without explaining how I came about to possess that image may actually tantamount to guilt, in their eyes. So I should reply to this lawyer, [and copy their clients, because they are copied on the Cease & Desist] explaining where I got it from and proving it by giving the links to those pages etc.? Would you endorse this 'decision'?
    I can't tell you what to do without a professional relationship. I can say that anything you say in the manner you mention can be used against you in a court of law. Some things can be said with good and honest intentions and, with a crafty lawyer, can be made to appear as a different shade. My experience tells me that if something is a major concern to someone, they will return. I also ask myself, what does an explanation buy me? One can always provide an explanation at an appropriate point in time when and if necessary. Just my thoughts. You're welcome and I'm glad to have the army judge around too as he's very insightful.
    Forum posts are not legal advice, are for educational purposes only & are not substitutes for proper consultation with legal counsel.

    Need a lawyer? Use TheLaw.com's FREE Case Review now!

  11. #9
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    Thank you for your wisdom and kind words, Professor.

    OP, silence is golden.

    What happens to that big old bass when he opens his mouth to snag that tasty worm? Yeah, he gets caught.

    Nothing you can say is going to satisfy these bullying grifters.

    They want tribute from you.

    These are cyber-pirates.

    You'd be smart to say nothing.

    You don't owe anyone an explanation.

    Even in a court of law, you aren't required to explain yourself or prove your innocence.

    You're NOT in a court of law.

    You have the right to remain silent.

    You have the right not to incriminate or exonerate yourself.

    You have the right to remain mute.

    Choose wisely.

    Quote Originally Posted by thelawprofessor View Post
    I can't tell you what to do without a professional relationship. I can say that anything you say in the manner you mention can be used against you in a court of law. Some things can be said with good and honest intentions and, with a crafty lawyer, can be made to appear as a different shade. My experience tells me that if something is a major concern to someone, they will return. I also ask myself, what does an explanation buy me? One can always provide an explanation at an appropriate point in time when and if necessary. Just my thoughts. You're welcome and I'm glad to have the army judge around too as he's very insightful.

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