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/
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/