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Image On A Website Used - Threatened With Legal Action Copyright

Discussion in 'Copyright, Trademark, Patent Law' started by valeri, Dec 3, 2011.

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  1. valeri

    valeri Law Topic Starter New Member

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    Hello Everyone,

    I am wondering what should I do in this case,

    There was a tiny image posted on my site as part of a blog post, the image was harvested and placed on my site using software and there is no way for me to tell if the image had copyright or not, it was harvested from a tinypic site.

    I removed the image immediately from my site.

    I live in Australia....

    The url of the image that my site got it from is:
    Code:
    i55.tinypic.com/2mmfd1_m.jpg
    Any advice on this would be greatly appreciated

    Here is the email i received:

    Unauthorized Use of ############ Image

    Reference Number 2011-1129

    It has come to my attention that you are using an image (or images) copy written by ######### for online promotional purposes without a valid license for use of the image(s).

    As you may know, use of an image without a valid license is considered copyright infringement in violation of Title 17 U.S.C.S., the Copyright Act of 1976. Included in this notice is a demand representing a settlement that I, (Aaron Reed) would expect to receive for unauthorized use of the image(s) when no license exists as in this case.

    The following action must be taken within 7 days of the date of this notice:

    · You must cease & desist use of the image(s). In addition, payment for the attached demand amount must be received within 7 days of the date of this letter. Ceasing use of the image(s) does not eliminate liability for payment of fees due.

    · If you desire continued use of the image(s) an additional license fee must be

    paid in addition to this settlement demand.

    I (####) am committed to investigating licensing infractions in order to protect my interests in my copy written work. I must enforce these licensing conditions rigorously and feel that your cooperation regarding this matter should be promptly forthcoming. This letter is without prejudice to the rights of Aaron Reed and Aaron Reed Photography, all of which are expressly reserved.

    The total amount due for this copyright infringement is $100.00 USD

    I (######) understand that a third party designer, former employee or intern may have been contracted to design your website, however the liability of any infringement ultimately falls on the person or company (end user) who did business with this third party. Claiming that you were unaware that an image license was needed does not excuse you from unauthorized use, nor does it relieve you from the obligation to pay the demand amount to settle this claim of copyright infringement.

    As the end user of my imagery, you are ultimately responsible for insuring that you (or your company) has obtained the appropriate rights to use said imagery.

    A screenshot of this violation and the image in question has been attached to this email and will be held on record should failure to pay this demand result in further legal action being required.

    Payment of this settlement can be made via PayPal either directly by using the send money feature and my PayPal email address, (#####@comcast.net) by cashier’s check, money order or through direct billing should you require or request an invoice in order to make payment.

    Failure to meet this settlement demand to rectify the violation as described above will result in this matter being turned over to the attorney representing ##########and more substantial damages will be sought should this be necessary along with any and all legal fees compiled during this process.

    Reference Number 2011-1129

    Case Number 4359

    Total Due upon Receipt: Image Price: $100.00 USD
     
  2. army judge

    army judge Super Moderator

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    First of all, think about this letter.

    You live in Australia.

    As an Australian citizen or resident, does some alleged violation of a purported US copyright violation affect you?

    Are you obligated to even be aware of US copyright law as an Australian denizen?

    You KNOW the answers to those queries without too much thought.

    Then consider how many legitimate lawyers notify anyone via email?

    What would you do if you received one of the infamous Nigerian prince or princess letters?

    You'd ignore it, right?

    I suggest you do the same thing here.

    You're under no obligation to respond to some unsolicited email demand for tribute.

    This could have been planted on your site.

    In fact, I'm certain it was.

    Once you're tagged, the insignificant $100 demands begin.

    Ignore this scammer and his idle, useless, empty threats.

    No harm will come to you, unless you begin corresponding with this grifter.
     
  3. AaronReed

    AaronReed New Member

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    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.
     
  4. disagreeable

    disagreeable Well-Known Member

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    If your work is so valuable, why is it posted on these share sites. One must wonder whether you intentionally had it put there, to make a business out of demand letters.
     
  5. AaronReed

    AaronReed New Member

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    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. Demand letters are not a worthwhile business or one I appreciate having to participate in. It's amazing how people try to turn this around like it is a photographers fault for trying to protect their copyright.
     
  6. Gened

    Gened New Member

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    Aaron, I looked at your website and at your images they are nice, but other than that I’m thinking that you are a scam artist or, I’m sorry, an idiot…

    If you are posting photos like these on the web and expecting that nobody would copy and paste them without your permission – you are… - just read above…
    However, if you are posting photos like these and scanning the web in order to find out who copied and pasted them without your permission – you are … - well, just read above…

    This all is telling me that you are not very successful in your business and instead of combing the web and threatening innocent people ($100 - LMAO) find a better way of marketing your stuff and make money from what you have rather than from you have not…
     
  7. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    Gened - I don't know Aaron's motives but he did only ask for $100. He could have been most unreasonable and demanded more. Now while I know it seems silly on the surface but there really is a larger issue going on here.

    (1) While I agree that people should protect themselves online (such as having some watermark), people should assume that any picture is owned by someone the same way they would finding an unlocked car. If you take it, you do so at your own risk.

    (2) The cost to police your images is very high. Overall, which actual usage fees might be $5 (let's say) or probably $30 for nicer images (professional photographers may charge more), the cost of enforcing against infringers is very high (the time to track people down, the effort, etc.) $100 is extremely reasonable.

    (3) The problem in this example is that someone placed the image on the original poster's website. Copyright is strict liability - it doesn't care if a person didn't know. That itself is troubling and, to me, the law doesn't appropriately address the real copyright problem that publishers hope to remedy. Perhaps it is designed right now to make people more aware of the issue in point #1.

    There are some people who are exploiting this law and its strict liability as a business (see "Righthaven" and "Getty Images" among others.) Righthaven has been allegedly going after publishers in questionably bad faith (some of the cases are very questionable, IMHO.) Should the law be changed? Probably. But should we completely blame artists for taking a hard line when they find others not caring a whit about using images they know or should know don't belong to them.

    I'm sympathetic to the original poster. He shouldn't be stuck with a $100 bill because he didn't realize that what he thought was a reliable method resulted in someone else's image being used in his post. The reality of his remedy is exactly what Army Judge described and suggested. This is a very difficult issue and I don't think it's as cut and dry as it seems.
     
  8. Gened

    Gened New Member

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    As the law professor you are looking very deep into this issue, but I think that nothing should be taking out of the context.

    As I have recently heard, someone took images from the web, printed and painted them and sold them for millions of dollars – this is one case. However, if someone took a copyrighted image and posted it on his/her website to make that site looks better and this person should pay for a statutory damage $130,000.00 plus legal fees – this is a completely different issue…

    If that person above asking for $100 – he isn’t serious, he’s just looking for easy money, or he has some kind of personal/business problems…

    If I would be in his place, instead of asking for the money, I would ask that publisher to make a link to my site and maybe provided even more free images (of small resolution) to promote my site even further – but it’s just my opinion…
     
    Last edited: Jun 11, 2012
  9. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    Don't know what case you're referring to and not sure it makes sense. Statutory damages are set at a few thousand dollars. Then there is the issue of actual damages.

    I disagree. Have you looked at market rates of stock photo images? I've occasionally scanned the web to see who is using my work. If I found something that I should result in my deserving compensation, why not try a reasonable settlement? No need to go for the jugular all the time.

    Links back to my site doesn't pay the rent/mortgage. If everyone bargains with links after getting caught, I'm stuck with few purchases and too many worthless backlinks. Most of these link offers will not result in any substantial returns. For example, if one of my images are used on a doctor's website, how many patients are going to click on a link back to my site to purchase my images? Probably none. Most of the time people who have no money try to bargain with worthless backlinks or other assets they have instead of hard currency.

    The above situation was unusual in that the original poster claims he didn't even know the image would appear on his site. That's different than the usual situation I see here - someone uses an image that they should know belongs to someone else. In such an instance I'm far less sympathetic.
     
  10. Gened

    Gened New Member

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    “Don't know what case you're referring to and not sure it makes sense. Statutory damages are set at a few thousand dollars. Then there is the issue of actual damages.”
    You can Google this to find the story on NPR: 'Canal Zone' Collages Test The Meaning Of 'Fair Use'

    “I disagree. Have you looked at market rates of stock photo images? I've occasionally scanned the web to see who is using my work. If I found something that I should result in my deserving compensation, why not try a reasonable settlement? No need to go for the jugular all the time.”
    In the law they said if you can prove that you didn’t know that image was copyrighted you will pay $200 – it’s where these $100 came from. But it’s silly to pursue such a small sum of money in the federal court and it’s even more stupid to pay…
    “Links back to my site doesn't pay the rent/mortgage. If everyone bargains with links after getting caught, I'm stuck with few purchases and too many worthless backlinks. Most of these link offers will not result in any substantial returns. For example, if one of my images are used on a doctor's website, how many patients are going to click on a link back to my site to purchase my images? Probably none. Most of the time people who have no money try to bargain with worthless backlinks or other assets they have instead of hard currency.”

    Well, it’s difficult to sell anything on the web if it’s not of course shoes, clothes or phones. However people unpredictable in their purchases and you never know what and why they can buy on your site…

    If you would Google “Aaron Reed” and then “A collection of nature photography images by professional landscape photographer” his website has nowhere to be found!
    This is his real problem. Someone must know his name to find his site online. At the same time backlines are important because they improve site’s rating in any search…
    So instead of running after innocent people, threatening them with legal action that he never intended to pursue, he should improve his site and stop whining…
     
  11. christopher

    christopher Banned

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    First, in Aaron's defense, A quick search of the image Valeri shared turned up a lot of data.
    In 5 minutes, This is what I found out:

    Google Image Search (drop the image into the Google search bar) returned 50 results, with the the largest resolution and first posting pointing to the image on Flickr /photos/sicalufakiss/4848734196

    The photo was taken by Aaron Reed on July 30, 2010 in Glacier, Washington, US, using a Canon EOS 5D Mark II.
    The details are stored in the photographs EXIF DATA embedded in the photo at the time the photo was taken.
    In this case, Aaron is the true owner of the image. It was posted online at Flickr shortly after he took and processed the photo.

    Aaron does this for a living. His web site documents workshops since 2010.
    Aaron maintains a web site here: aaronreedphotography dot com (TheLAw.com won't let me post links yet)
    Aaron's Images are licensed through Getty Images and Getty enforces their right to license the photos:
    Search GettyImges for artist=Aaron+Reed+Photography

    Whether Aaron has his own web site or note does not matter, he has the original photo in raw format with the embedded details from the time and date the image was taken. The page also bears the following " All Rights Reserved, Request to license ~ Aaron Reed ~'s photos via Getty Images"
    Aaron has been a member and sharing photos of this caliber since 2007.
    Search for user sicalufakiss on Flickr

    Valeri had better have proof she purchased the image for web use from Getty, or she will lose.

    For Valeri, I posted the following earlier on this site...
    ----
    As a photographer who has encountered illegal use of my own copyrighted materials online, I have sent cease and desist letters for the images in the past. Organizations that refuse to remove the image often get an invoice for the full rate cost of using my stock images online in addition to administrative fees. If they still refuse to pay the invoice, I take them to court or leverage my rights under the Digital Millenium Copyright Act to have the site taken offline until my costs are recovered.

    Any legit photographer of stock photo service will be reachable by phone, email and mail. Contact your lawyer and have them contact the person sending the letter. Research the organization. Ask for details like original date of publication, date of image capture, or any legal details to prove they are the original owner of the images. A large organization will have the Copyright Registration record or other identification from the US Copyright Offices to back up their claim. Small shops, like myself, still have legal action under the current laws and if they can prove they own the original rights to the image in court will be able to claim larger sums plus damages and court costs.

    If you have artwork on your website, you are responsible for the content. When I ran a web design business, we purchased all art work from services like Getty Images. We provided he customer with invoices for the art work. Unless the image was a royalty-free piece of art, which we provided proof for as well, we did not use the art work or photos without a signed license from the artist or service offering the image.

    The down side for you, if the copyright owner feels that you will not cooperate, they can contact your Internet service provider to have your site removed under current copyright laws. The Digital Millennium Copyright Act gives content owners far greater reach and power. Search Wikipedia for DMCA (I cannot post links yet)

    Be smart, do your homework, investigate the photo and the service claiming copyright. Remove the image when in doubt and be prepared for legal action in the event the copyright holder is a legitimate business.
    ------

    In this case, Valeri should have documentation detailing where her images came from. Without it, she will loose regardless of how much content the other party has online.

    I make money by selling photos. People find my photos on services like Flickr or my own personal websites. I hope people respect my copyrights. For my images that are frequently stolen, I resort to watermarking across the image to prevent theft and illegal use. When that fails, I ask the party to remove the image. Only once have I had to threaten legal action and a few time the party is willing to pay for the photos license costs.

    If you want a great example of illegal use of a copyrighted image taken from the web, look no further than the Barack Obama Hope posters. In this case, the judge made it very clear that the Associated Press would win the case if Shepard Fairey did not settle. The settlement was not disclosed. Search Wikipedia for Barack Obama Hope Poster for details (TheLaw.com won't let me post links yet)

    Moral: Do your home work. Request proof or history of the photo being used by the party claiming ownership dating to before your date of usage as well as other cited referenced to the same image to that single party. The Internet may be your strongest ally if you can show that the image has an owner, and the person claiming the image is not it. (Try Google Image Search)

    For Valeri, $100 is getting off easy. Obviously Aaron does not do this as a primary form of income.
     
  12. christopher

    christopher Banned

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    Also, GettyImage, the party who Aaron used to license the photo, does have an office in Australia and enforces their rights to sell and license the photo there as well.

    Getty Images Australia
    Level 6, 182 Blues Point Road
    McMahons Point NSW 2060
    Australia
    Free service line: 1800 500 141
    Fax: +612 9439 0476

    My advice, ignore ArmyJudge. Reach out to Aaron Reed via his own web site to confirm he is indeed the party claiming rights to the image (since we can establish that it is indeed his image) and be prepared to settle with Aaron or his designated party.

    One last note, I do not condone the tactics used by Getty Image, but they are in the business of licensing photos. Illegal use is revenue they will not recoup. They are a little too strong handed in my opinion. A simple "Please remove the image or agree to pay a license fee " should have been the first letter you received.
     
  13. Unregistered

    Unregistered Guest

    Hello, you used to write wonderful, but the last servael posts have been kinda boring… I miss your great writings. Past servael posts are just a little bit out of track! come on! Partake of some of life's sweet pleasures. And yes, get comfortable with yourself. by Oprah Winfrey.
     
  14. Unregistered

    Unregistered Guest

    Sharion Goodhand - Kendra the pictures that I have seen so far of Liam and Patty's wednidg are fabulous. You did an awesome job. Thank you for capturing their day so beautifully.Sharion GoodhandMother of the Groom
     
  15. Unregistered

    Unregistered Guest

    What a great resuocre this text is.
     

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