Illegal Image Use & Settlement Demand

I received this email yesterday from a photographer named Aaron Reed. I'm going to paste the email he sent me shortly. The email demands that I take down an image and pay $500 that was used by one of my authors on a small tech blog site I run (The site is called Techtronica.) The story is that my author was doing an original story about Windows 8 features. He was taking a screenshot of his desktop area where he was using a flickr app that was randomly rotating through images from the site. The image PARTIALLY seen in the screenshot. Here is the threatening email that was sent to me.

April 31, 2012

VIA E-Mail (xxxxxxxxxxxxxxxx (at) gmail (dot) com)


Re: Aaron Reed's Copyright Infringement Claim

Dear Landor Industries, TechTronica (dot) net & possible others as discovered,

If you are represented by an attorney, please forward this letter immediately to your attorney and provide the attorney's name and contact information to me.

Aaron Reed will be seeking representation in the matter of ("you" or "your") infringement of copyrights as you used our client's photograph shown below ("Photograph") without permission.

techtronica (dot) net/2012/02/06/windows-8-screenshots-for-a-glimpse-of-whats-to-come/





This image is not only being used as some kind of a screenshot of a new Software program without permission but it appears the image is even shown to be "by Dene' Miles on flickr (dot) com". Dene Miles does not own this photograph and is actually a known person to Mr. Reed. There has been no monitary compensation given to Mr. Reed for his work.

Aaron Reed's review of prior licenses does not include your use of the Photograph. Therefore, your use of the Photograph without authorization of Aaron Reed or the law constitutes copyright infringement. The infringement is clear; the only question is the extent of damages to be paid.

Aaron Reed Photography Rights Pursuant to U.S. Copyright Law

United States Copyright Law grants exclusive rights to the copyright owner of an image for use of that image, including the rights to:

- reproduce the copyrighted work;
- prepare derivative works based on the copyrighted work;
- distribute copies of the copyrighted work to the public; and/or
- display the image.

See 17 USC §§ 106 and 501. When those rights are infringed, the copyright owner is entitled to recover damages caused by and the profits earned from the infringement, regardless of whether you acted knowingly or intentionally. See 17 USC §504.

In this case the actual damages are calculated by the license fees lost by your use of the Photograph without authorization. Note that our client would also be entitled to any profits attributable to the infringing use.

You remain liable for this infringement until it is resolved.

Summary of Aaron Reed Photography's Claims and Demands

Thus, Aaron Reed (owner) demands that you:

1. Cease any further use of the Photograph;
2. Pay a licensing & settlement fee of $500.00 USD

Copyright infringement is a strict liability offense: you are responsible for any infringing act regardless of your intent. While you stopped using the Photograph, you remain liable for your past infringement.

Notice to Preserve Documents and Data

You are on notice that litigation is likely regarding your actions concerning the Photograph. You are now obligated and have a duty to preserve all evidence that may be relevant to the dispute discussed above and that may be the subject of pending litigation. This duty of preservation extends to, but is not limited to, data files, e‑mails, calendars, telephone logs, access lists, and logs that are located on your computer networks, e-mail servers, mainframes, individual computer workstations, and external drives, or are located on any of those devices within your control but not owned by you, such as your web host. Specifically, but not exclusively, you are on notice that you must preserve all evidence of all of your uses of the Photograph.

Sanctions for violating any of the foregoing duties can be severe and include substantial monetary sanctions, adverse inferences in evidentiary rulings, and the entry of judgments by default. We remain hopeful that we can resolve this dispute short of litigation. The above duties, however, must be satisfied during any settlement or other discussions that we may have.

Offer to Settle Aaron Reed Photography's Claims

Aaron Reed is willing to provide you an opportunity to settle claims against you and end this matter immediately if you send certified funds in the amount of $500.00USD within three (3) days of your receipt of this letter. Please note that this amount represents an offer of settlement but does not reflect the damages that Aaron Reed can and will seek in a court proceeding, including attorneys' fees pursuant to 17 USC 1203. Rather, this settlement offer reflects what our client will accept if no further actions against you are necessary. If you do not accept this offer, our client reserves the right to seek the maximum available damages under the law, which far exceed this amount.

Be advised that if you are unwilling to resolve this matter as noted above, our client may initiate formal litigation at any time without further notice to you. If you carry business insurance, now may be an appropriate time to contact your carrier to determine whether my client's claims are covered under your policy. This letter is without prejudice to our client's rights and claims, which are expressly reserved. We look forward to receiving your timely response.

Sincerely,

Aaron Reed
Phone: xxx-xxx-xxxx
Email: xxxxxxxxxx@comcast (dot) net

The email was obviously drafted by Mr. Reed. And I thought official legal documents were physically sent to people. Mr. Reed is not very pleasant to deal with through email as he only sees things his way. I've seen several other posts on this site concerning him and have read that he is a scammer according to those posts.

Personally, I would pay absolutely no attention whatsoever to any demand via email.
If you acknowledge it then you only give them reason to pursue you.

Your last paragraph sums it up. Treat it as a scam until you receive something legitimate.

Unfortunately I made the mistake of having a dialogue when I received the email (I'll be honest, this scared me a little.) But I quickly reached the point where there ws no pointing talking to this guy anymore. So now I have email filters in place that automatically delets emails from him. For kicks, I did leave him expecting to get paid. I told him no such thing by the way

The important point to make is that this is not a scam and I am not a Nigerian prince trying to scam someone out of their life savings. I am a real photographer, with real copyrighted work, that others really do use without permission and can REALLY be sued over. Will I take every case to court? No. Do I turn cases over to my attorney when it seems best? Absolutely.

When people make blanket statements on here as legal advice, they may help some individuals but may hurt others who really may end up getting sued. Maybe those who choose to share their opinions should offer both sides of the argument so that people can make an informed decision.

My work is valuable and it is important to me to protect it. Remember, I did not take anything from this person, they took from me. If the shoe had been on the other foot, I am sure they would have been defensive as well. I try my best to work with everyone to come to a mutually beneficial agreement. Those cases where I am unable to, are put on a short list where by law I have up to 3 years to file a case in court.

I wonder if the art was not put out all over the internet, if these violations would not occur. I guess you gotta make money somehow.

A photographer makes money when people see their work, appreciate it and then purchase it either directly through prints or through licensing for advertising. If I kept all of my images off the internet then yes, no one would be able to take them but I would also not be able to sell my work. People seem to know that music is copyrighted by artists and not free to use but for some reason many people do not feel the same way about artwork. I go to great lengths to place copyright symbols as well as my name, my website, "do not use" statements and everything else I can think of to attempt to keep people from using my work without compensating me but it still continues. The simple fact is that using a photographic image found on the web is against the law without permission directly from the photographer. If people choose to break the law, then they have to accept the possible consequences of their actions. I would much rather people did NOT use my images so that I wouldn't have to deal with these types of problems. I rather be out creating more images.

It doesn't matter whether they're on the Net or in a local gallery - Aaron has every right to control where his legally protected images are and are not used without his permission.

If he has not given that permission, he's got every right to either sue the offender or try to negotiate a fair deal.

AaronReed said:

The important point to make is that this is not a scam and I am not a Nigerian prince trying to scam someone out of their life savings. I am a real photographer, with real copyrighted work, that others really do use without permission and can REALLY be sued over. Will I take every case to court? No. Do I turn cases over to my attorney when it seems best? Absolutely.

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Aaron, I can understand your plight. There is a huge problem when people simply take what is not theirs and use for their private gains because it is easy to do so. There is a significant cost of enforcement in doing this and I can sympathize.

That said, the problem is in the fact that copyright law is now being used as a sword send "extortion letters" to those who innocently "infringe" upon the rights of the copyright holder. Copyright law is currently a strict liability statute and intent makes no difference. The alleged infringer may have no care to use someone else's property but, for some reason, incidentally this occurs. The question is whether someone taking a screen shot of a desktop that happened to have a partial view of your photo in a rotating desktop widget is really worth $500 in actual damages. Were there any damages caused by this inadvertent "use" in the manner stated, assuming all was true?

At the moment, Getty Images is the most well known exploiter of the law. A client had an image that a consultant left in a directory on a website that was not viewable by the public. Getty's search spider must have found it and the company demanded $1,000 or so for the unauthorized "use" of this picture. Is this fair in any way?

When people make blanket statements on here as legal advice, they may help some individuals but may hurt others who really may end up getting sued. Maybe those who choose to share their opinions should offer both sides of the argument so that people can make an informed decision.

My work is valuable and it is important to me to protect it. Remember, I did not take anything from this person, they took from me. If the shoe had been on the other foot, I am sure they would have been defensive as well. I try my best to work with everyone to come to a mutually beneficial agreement. Those cases where I am unable to, are put on a short list where by law I have up to 3 years to file a case in court.

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In many instances, the infringer may decide not to settle and force the copyright owner to sue them in court. This is not a good remedy when there is a significant wrong and I'm certainly sympathetic. From my perspective, a takedown should be the appropriate measure when it's clear that the alleged infringer had no intent to use a copyrighted work and when damages are de minimis at best. Just some thoughts.

That was an incredible post and I learned one whole heck of a lot - thank you!

Most reputable photographers don't exhibit their "work" on the internet.
A reputable photographer sells out of a gallery or his/her studio.
Or, they get paid for their work by a person or a firm.
Then there are others that hold themselves out to be photographers who make $2 or 43 for selling their "work", and try to SCAM thousands of dollars by intimidating unsuspecting dupes and dopes.
I'll say it again, I have yet to use email to alert anyone I'm suing that I'll be suing them or else.
When I send a letter on behalf of a client, its by an overnight delivery service or the US Postal Service.
The last I visited a bank, I didn't see money orders, cash, or credit cards strewn about to let potential customers examine it before buying.
Banks keep their assets under lock and key in vaults and/or secure cages.
Car dealers don't leave the keys in cars to make it convenient for prospective customers to take test drives.
Just saying...:blush

Thank you "thelawprofessor" for sharing your thoughts in a helpful and constructive way instead of making statements without fact as "ArmyJudge" seems to want to do. My main concern in THIS particular case is what started as an "innocent" screenshot by one website can (and will if left unchecked) turn into many websites having the same screenshot. I have seen SEO optimization companies grab an image like this, or a link from a blog for example, and shotgun it out to a ton of other sites who are clients of theirs. I don't exactly understand that process, but I have seen them take one blog post and turn it into 10 posts on 10 separate websites that don't have anything to do with the subject. When this happens, now my image is being spread out all over the internet without any controls by me and in many cases, my contact information or copyright information is stripped in the process. I have some images that this has happened to where the image is basically worthless now because it is in so many places, no one would ever pay for what they could get for free. The part of this story that wasn't told was that the screenshot that was used had my signature and copyright information cropped from it and in fact the image no longer had any connection to me at all. This is a problem and a serious violation as far as I am concerned. The $500 I was asking for is very little compared to what I can legally ask for when copyright information has been removed from the image. If I simply sent out take down notices to everyone who use my images I would spend all of my time doing that and it would rarely cause anyone to think twice before using someone's copyrighted work again. It would be an effective slap on the hand. Again, thank you for your thoughts. If everyone shared their knowledge and opinions with trying to talk trash maybe we could get somewhere.

Army Judge you don't know what you are talking about

Army Judge..... there are hundreds of thousands of professional photographers in this world that do not have galleries or studios. The emails I send are an attempt to settle these issues WITHOUT going to court. You obviously don't get it. ALL photographers put their work on the internet. 100% of them. Don't believe me? Google Peter Lik or Art Wolfe.. two of the most successful photographers of this day and age and you will see their work all over the internet. Try sharing fact instead of opinion or you are just hurting instead of helping and spreading your own ignorance.

AaronReed said:

Thank you "thelawprofessor" for sharing your thoughts in a helpful and constructive way instead of making statements without fact as "ArmyJudge" seems to want to do. My main concern in THIS particular case is what started as an "innocent" screenshot by one website can (and will if left unchecked) turn into many websites having the same screenshot.

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If the screenshot includes an item that is being rotated as part of a feed, who exactly is the guilty party? Shouldn't the person who uploaded the file have a significant responsibility for uploading it to a site that has an RSS feed which you know will be distributed to computers around the world and used as their desktop background picture. Do any of us actually believe for one minute that this person knew or should have suspected that content that is sent to his computer legally did not entitle him or her to take a screenshot of his or her own desktop?

I have seen SEO optimization companies grab an image like this, or a link from a blog for example, and shotgun it out to a ton of other sites who are clients of theirs. I don't exactly understand that process, but I have seen them take one blog post and turn it into 10 posts on 10 separate websites that don't have anything to do with the subject. When this happens, now my image is being spread out all over the internet without any controls by me and in many cases, my contact information or copyright information is stripped in the process.

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So here is another the question - did you upload the image to flickr or to the company that was distributing this image? If yes, then it's your responsibility to know how it "shotguns" that image to other sites or a person's PC. If not, who is actually the truly culpable party? The innocent person who had an image that he thought was legal on his desktop or (i) the actual uploader of the photo, or (ii) the company that unlawfully distributed the photo?

The problem is that there is no way any person can KNOW that an image is legally acquired. There is no identifying mark on the image. So let's take an example: A person in Brazil uploads your image to a site in Mexico. The site states that its images can be legally distributed royalty free and 100,000 unsuspecting people in the US download it and use it for their desktop. You now have $5,000,000 worth of potential revenue from 100,000 unsuspecting US residents. You won't bother to pursue the wrongdoers because doing so would be convenient - it's more convenient to nail unsuspecting people located in your proximity. Do you see the nature of the problem here? How could any of these people have known that the image wasn't legally acquired? Shouldn't that matter? Furthermore, if these people wanted a desktop image, could they not purchase a few dozen images for $20 or so? Why would they spend $500 for your image?

I have some images that this has happened to where the image is basically worthless now because it is in so many places, no one would ever pay for what they could get for free. The part of this story that wasn't told was that the screenshot that was used had my signature and copyright information cropped from it and in fact the image no longer had any connection to me at all. This is a problem and a serious violation as far as I am concerned. The $500 I was asking for is very little compared to what I can legally ask for when copyright information has been removed from the image. If I simply sent out take down notices to everyone who use my images I would spend all of my time doing that and it would rarely cause anyone to think twice before using someone's copyrighted work again. It would be an effective slap on the hand. Again, thank you for your thoughts. If everyone shared their knowledge and opinions with trying to talk trash maybe we could get somewhere.

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Again - I understand your plight completely. Copyright and theft is a serious problem. But I ask you - did this individual crop your signature and copyright information from the photo or did they think that this was a photo that was legally uploaded and their use was proper? This person seems to be saying (as is the typical case) that they had no idea. Someone else did the dirty work and they are being hit with a $500 bill.

You're right - you could pursue for more money under the law. I don't know what a judge will issue, especially if someone decided that you should pay the full costs to enforce. But this is inherently the problem. The law is requiring that innocent people pay you for all the enforcement you might have to do -- but you don't have to lift a finger to even pursue the people responsible for your actual problem.

As I mentioned, I had a legitimate, professional web builder mistakenly leave one image that was used to present a client with a proposal. That image was not used and the others that were used had licenses purchased. A web crawler found this sample image sitting in a directory that was not being used although technically, if someone knew the exact URL of the photo, it could be accessed. The owner wanted $1,000 for the same reason as you did - because it was there, could technically be accessed, the cost of enforcement was large and this was their "suggested retail price" for that object. Should my client have to pay this astronomical cost not even knowing the image was left there? Or shouldn't the plaintiff pursue the professional who left that sample image in a directory? The law, as currently written, allows the plaintiff to have a windfall and pursue every victim who didn't even know that the image was left in the directory.

I don't know anything about your specific case or the possible complications. In this case, I am not 100% sure where it began but from what I have been able to find out so far, it appears that there was a software presentation covering new features of windows 8 and during this presentation, someone took a screenshot (without permission) to use to write about the presentation and the software. Then, other websites began to use that same screenshot either by right clicking the image or by linking the original article to post their own stories and blogs about the software and/or presentation. This image was/may have been legitimately licensed for use in the presentation, to a group of individuals. It didn't become a copyright case until someone took a screenshot of that presentation without permission and then posted it to a website where they are using it (in part) to create traffic and generate ad revenue for their site either directly or indirectly. Now why should I have to track down the source and take this up with them only, while everyone else who has now piggybacked that original article is also using my image, and others continue to take it from them? It could go on and on. That first "offender" is not responsible for what every single person after them does. That is like saying that if I end up with a stolen car after it has been stolen by 4 people before me, that I am not responsible because only the original theft was a crime. I don't have any more desire to debate this issue back and fourth here on this website. Like I said in the beginning, I am only trying to protect my work from others who would choose to use it without permission. This will be my last post. Fire away......

AaronReed said:

I don't know anything about your specific case or the possible complications. In this case, I am not 100% sure where it began but from what I have been able to find out so far, it appears that there was a software presentation covering new features of windows 8 and during this presentation, someone took a screenshot (without permission) to use to write about the presentation and the software. Then, other websites began to use that same screenshot either by right clicking the image or by linking the original article to post their own stories and blogs about the software and/or presentation. This image was/may have been legitimately licensed for use in the presentation, to a group of individuals. It didn't become a copyright case until someone took a screenshot of that presentation without permission and then posted it to a website where they are using it (in part) to create traffic and generate ad revenue for their site either directly or indirectly. Now why should I have to track down the source and take this up with them only

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Why should you have to track down the source? (a) It's your image! (b) Why aren't you concerned about the person that caused the problem in the first place? Why aren't you prosecuting the person knew or should have known that they stole your lawnmower?!

It doesn't seem a good result to me that all that matters is that the copyright owner gets compensated but the people who are innocently duped are the ones who pay for it - and not the most culpable party, by far.

AaronReed said:

while everyone else who has now piggybacked that original article is also using my image, and others continue to take it from them? It could go on and on. That first "offender" is not responsible for what every single person after them does. That is like saying that if I end up with a stolen car after it has been stolen by 4 people before me, that I am not responsible because only the original theft was a crime. I don't have any more desire to debate this issue back and fourth here on this website. Like I said in the beginning, I am only trying to protect my work from others who would choose to use it without permission. This will be my last post. Fire away......

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Aaron - you are conveniently omitting the fact that these people who "piggybacked" on this original person did so WITHOUT KNOWLEDGE that they were doing anything wrong. You call what they did "stealing." But under the law, it's NOT stealing if someone used a car without any knowledge that the car was actually stolen. This is more like a thief stealing cars and giving the keys to other people telling them it's his car and they can rent the car. Each of these people had little reason to believe the car was ever stolen in the first place! Copyright law is strict liability unlike your example and it seems troubling when the comparison you made actually provides two very different results.

Aaron - you don't have to discuss the issue. You're right that the law states what it does. To me it seems that you're refusing to acknowledge that these people whom you're sending notices had no knowledge or intent of being an "offender." It's likely easier not to think about the fact that the people whom you're sending out demand notices for compensation might also be victims too.

I appreciate your participation and thank you for providing us with your opinion. You're welcome to discuss it here and hopefully this difficult issue will find an appropriate place that seems fair to all parties and protects artists whose images are being used without any compensation.

I didn't say why should I have to track down the source, I said the "source only" meaning if 1 person uses my image without my consent, and 20 others take it from them, why should I only go after the first person.

I'm not omitting that at all. Each case is different and I spend a lot of my time discussing the particulars on the situation with them before I try to work out a final agreement. I could just turn every case over to a lawyer willing to work on a commission who would them ask each of these people for thousands of dollars to settle, instead of $500. I don't do that though. I even call people on the phone when I can to discuss these cases with them. Many people are appreciative and pay my licensing fee without issue. Sometimes we negotiate a different deal. Often I allow them to keep using the image as a condition of the payment. I am being cautious in the replies I give to you because some cases are VERY different than this one and I don't want to further confuse situations due to a cross of information. If I am understanding the case you are referring to, it sounds like your client WAS completely unknowing in their use. Many of the cases I have to do with are people who used the image "because they thought if it was on the internet it was fair game" or "because their intern told them it was okay" or a number of other "reasons". All of these cases being ones where my name, copyright and do not use was all over the website they took it from and the image. Yes, there are innocent victims in some of these cases I agree. I am not saying the law is perfect and I am certainly not a lawyer like yourself but I will say that I am happy that the law is there to protect me in cases where I cannot otherwise defend myself and my work without it.

AaronReed said:

I didn't say why should I have to track down the source, I said the "source only" meaning if 1 person uses my image without my consent, and 20 others take it from them, why should I only go after the first person.

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I agreed with you in the other case - where at least one of the other 20 took it and also knew (or should have known) that there were rights attached to a photo. Having a blurred but still reasonably legible copyright means the user is on notice that they need to make reasonably sure that they have the rights to use that image. It's difficult to track down these people. I have little sympathy for them. I don't blame you for going after them with guns blazing.

I'm not omitting that at all. Each case is different and I spend a lot of my time discussing the particulars on the situation with them before I try to work out a final agreement. I could just turn every case over to a lawyer willing to work on a commission who would them ask each of these people for thousands of dollars to settle, instead of $500. I don't do that though. I even call people on the phone when I can to discuss these cases with them.

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That's commendable - truly - but there is still a perspective problem with the way copyright handles the matter. Take a look at the one above where the person has a partial desktop image in the background inadvertently. In that instance, even though the law might say there are "statutory damages" in the thousands of dollars, that doesn't make it right. It's similar to what happens with the health insurance system where a doctor charges $12 per Tylenol or acetaminophen tablet because the government allows them to charge that absurd rate and then tries to get a regular person to only pay $6 or a huge 50% off. The price is still far out of proportion what would be reasonable and that person wouldn't want to pay you anything close to $6 per tablet no matter how "generous" the offer is.

Many people are appreciative and pay my licensing fee without issue. Sometimes we negotiate a different deal. Often I allow them to keep using the image as a condition of the payment. I am being cautious in the replies I give to you because some cases are VERY different than this one and I don't want to further confuse situations due to a cross of information. If I am understanding the case you are referring to, it sounds like your client WAS completely unknowing in their use. Many of the cases I have to do with are people who used the image "because they thought if it was on the internet it was fair game" or "because their intern told them it was okay" or a number of other "reasons". All of these cases being ones where my name, copyright and do not use was all over the website they took it from and the image. Yes, there are innocent victims in some of these cases I agree. I am not saying the law is perfect and I am certainly not a lawyer like yourself but I will say that I am happy that the law is there to protect me in cases where I cannot otherwise defend myself and my work without it.

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Yes... this is a very complex problem. There really isn't a perfect solution. A challenge is that many of the distribution points have limited liability and act as enablers because government says that if the law was different then the Internet would cease to exist. That's great until you look at where the cost of enforcement is placed - upon a grandmother who commissions an Indian SEO firm for a website and gets hit with a $10,000 bill for all the images that she had no idea were taken from a photographer's website. Then she has to negotiate down for a website that should only cost $500 to build - which ends up costing her $2,500 if she is "fortunate."

I don't know of a solution to this problem that will be be completely satisfactory to all parties. I do think that the law should be changed quickly to address intentional and non-intentional copyright infringement but unfortunately that doesn't seem to be the priority of Congress. Sonny Bono extended copyright rights decades longer so that corporations could receive longer benefits. Was this really an essential need or self-interest? I think the sooner this matter is dealt with, the easier it should become for both you and the people who unwittingly become innocent copyright infringers.

What is there to fire away about? You have already proved that we are accurate about your moral character. You run around profiting off the ignorance of others, letting the criminals spread their work, while you make money off of it.