Hi everyone. Found this site thanks to my best friend Google. I have a very serious question involving copyright, C&D, and legal involvement. I was recently emailed by a freelance photog to 1) C&D using photos 2) remove all photos 3) pay him $500 per photo equaling $3000 ("If payment is not received within 30 days, this matter will be turned over to a Copyright Attorney and will seek damages, including copyright violation(s) and legal fee's pertaining to this matter.") I have informed said photog that I am quite unable to pay that fee without becoming destitute (I'm a grad student with no job) and that as I understood it, by complying with the C&D immediately that the issue is thereby resolved. I am bothered by this because of a few reasons. The photos in question are five years old. They are each no bigger than 350px. The photog has a flat rate for all and every image used without his permission as I can prove by an email from him that contained an email sent to another infringer with a photo no bigger than 200px, also demanding $500. He is also now demanding fees from two other fan sites of the same actor as mine, made known to me in an email, amounting to 22 violations which under his flat fee would pay him $11,000. Now, I have no lawyer nor can I afford to pay one, but a friend in PR and her lawyers did give me free advice. Due to circumstances they believe a lawyer will not bother sueing me. We also believe he is for whatever reason all the sudden dead set on collecting dues from anyone he can Google, as made apparent by his emails to me. It also quite obvious that what he is doing borders if not hits it right on extortion (considering my financial condition and young age.) About my fan site - it is non-profit, free membership, taking revenue only from commission sites such as Amazon, AllPosters, Google, etc. We are always in the red and can only afford to run the site via commissions and donations. (In fact, if it weren't for one of my referral commissions from one of those sites, the site would have had to be shut down due to lack of funding.) SO, after this novel-length post I want to ask opinions on this photographer's (and my) legal standpoint and if he can in fact charge me $3000, or, if he does have that right, if he could seriously wipe me out in court if I don't comply by the 30-day mark. Thanks.
Neither the size, quality, content of the photo, nor the status of your site as a not-for-profit site has anything to do with copyright violation. Having said that, ceasing use of the photos is the proper thing to do at this time. Resolving the problem moving forward, there are several items to consider. If the price he wants you to pay is unreasonable, do not pay. However, when considering how much you are willing to pay, consider several factors: What is the likelihood that he will pursue this matter legally? I would think that it would be very little considering he wrote the letter himself, and you have taken steps to stop the infringment. Dealing with legal problems is stressful. How much would you pay to not deal with the stress? Dealing with legal problems requires an attorney. That will cost money. Consider the amount that you will spend moving forward with an attorney. Damages are not always assessed in legal matters, although I don't know a lot about copyright laws myself. It would seem to me that the penalty awarded by a court in a worst case scenario would be limited to a reasonable usage fee, more than likely similar to what the copyright holder typically charges - and what the standard industry fee would be. You may want to look into those two items yourself and counter with something you deem more fair. Personally, I would hold off on offering to pay money until I heard from an attorney and potentially until a case was filed. If you consider that he's willing to take $500 now, and it will cost him say $100 for an attorney to write up a complaint and $100 in court fees just to get started, he may be willing to knock $200 just to get the matter resolved. Moving forward, he is out of pocket for expenses associated with the case - and court cases do not move along quickly. He could be out of pocket several thousand dollars before getting a judgement and then there's the matter of collecting the debt. It would seem unlikely that he would invest $3000 to get $3000 + some potential damages and some potential legal fees from you with him being completely in the dark as to your financial situation, and a lawyer would advise him the same before even filing a case. There are also several other matters to consider - figuring out proper jurisdiction and venue, obtaining evidence, scheduling court appearances, taking time from work to deal with the attorney, and those are things that cost time and money that will never be recovered. He may be willing to move forward regardless, to generate a reputation for being hard-nosed and victorious in order to more easily pressure future violators. You could also write back to him and ask him for a list of cases he has won (or alternatively search online), or at least a count of violators that have paid his fees so that you may consider the validity of his claim. You should at least ask for specific list of lawful violations that he is complaining about - so that a) you can research the law and verify the validity of the claims for yourself, b) begin to draft a release agreement that would clear you from any future claims, and c) you can assess the potential penalties associated with not agreeing to pay his fees now. At no time should you admit that you were in violation of the law. You don't know for sure that you are in violation of any laws right now. Taking down pictures is a courtesy action on your part because he obviously does not want you to use them. Do you even know for sure that he is the actual copyright owner of the photos? What evidence has he profferred you at this point? Is that evidence enough for you to believe that this isn't just a scam by some guy who visited your website?
This is a tactic I recommend to ev3ryone with regard the illegal use of copy/images. To be perfectly honest people are bad, and simply telling them you want the stuff removed isn't always going to work. Telling people they have a choice, of removing the stuff or paying a hefty charge, normally gets them to remove the stuff. If they don't then in law they have accepted the charge, it is their choice.
Remove the images, e-mail that you have complied - don't mention anything about fees. If he then contacts about paying fees, tell him that you are not in a financial position to pay any such fees. Don't tell a long sob story - the short simple fact of the matter is of only real importance. If he then tells you that he is going to sue you, tell him that you will seek legal advice upon receipt of a letter from his lawyer. It is unlikely that it would be in his interests to invest in significant legal costs if there is no way to reclaim those back, presuming your financial situation is as stated. If the guy then proceeds to get a lawyer to send a letter claiming damages from you, PAY to get a lawyer to provide professional legal advice on how to proveed. This does not constitute legal advice.
considering the only way he found our site is via googling his name, yeah, he knows we knew the photographer's name and I know he's the guy he says he is. he even shoved a screen cap of the gallery page in my face. since, I've taken offline (hidden not deleted) every single photoshoot image save magazine scans. but there are complications of blame still, in that I was not the person who put the photos online in the first place, I merely kept them online, and at the time of myself taking over the site I did not even know the photographer's name, it was only in the last few months that I became aware of it and tacked on the name to the photos, thinking I was giving due credit. apparently names aren't enough for the greedy who think we're costing them money. (since when do teens and twenty-somethings pay for agency-priced photos anyway?) my only safety net is that, at the time of the photos uploading to the site, I did not know the owner of said photos (their file names do not contain the photog's name) and in there lies the non-willful infringement safety net. now, fortunately or unfortunately, thanks to the internet and several GOV websites outlining copyright law, I am now educated. I wouldn't care so much about being brought to court if I weren't just starting out my post-grad program in another country. if I had all the time in the world I'd fight back with the fire of a thousand suns. and I'm dead set on getting some flat, clearly defined rules set out for fansites and other "common interest" websites. sites like this are only a starting point.
Thanks, everything you said above had been said to me by a paralegal friend with Entertainment lawyer friends, and everything has since been emailed to the photographer. However, if it comes to it, I do know where to go for an actual IP lawyer for professional advice. Love having friends with connections who also love defending the little guy.
The facts are that if he is the photographer, he has every right to seek a usage fee. It isn't extortion- your financial condition doesn't matter. The age of the photo, or the size doesn't matter. Photographers are able to set whatever usage fee they want. While $500 sounds like a like, there are usuage fees for photos that are a lot more. I was recently quoted $6,000 for unlimited usage on a similar size photo for a commercial website. Of course I declined usuage - but that was my choice. My guess is that the chances are better than 50% that he won't take you to court as long as you removed the photo, BUT he might. I have a neighbor who is a pretty well known photographer and takes action against everyone even knowing he isn't likely to collect. He considers himself an "artist" and considers unauthorized usage outright stealing. He has over a dozen books that have been published on his work and only sells limited edition prints and won't allow his images to be used on the web at any price. He's very wealthy and can afford to throw good money after bad- but he is certainly a minority. Most photographers are not wealthy, and would look at a risk/reward scenario before filing suit. There are several options: a) Do nothing and hope he doesn't sue. b) Pay him his requested fee and get a written release. c) Try to negotiate a lower fee - it will be important to prove to him you have limited finances. If you decide to do nothing, and he does sue you, his offer to settle will probably increase to cover his legal and filing fees. Those should be $1,000 or less. Ultimately, it is up to you to decide what risk you want to take. Winning a suit and collecting are two different things, however if he does win, it will go on your credit report and he can file a lien in the county you live in which will need to be taken care of before you buy or sell any type of real estate. There are many free or low cost stock image sources available (like istockphoto) and paying a couple of dollars is cheap when compared to the problems like you face. I think the biggest mistake people make is using celebrity photos from the web thinking that a millionaire celebrity will never take action - especially if your site is a fan or pro-celebrity site. Most people don't realize that the celebrity doesn't own the rights to the photo in most of the cases and it is the photographer who owns the rights - and often will take action against unauthorized usage. Good luck in whatever you decide to do.
Re: Copyright. There have been numerous cases in the USA concerning Copyright Midi files. Eventually people have been settling out of Court. I think everyone has to face the fact that Copyright is exactly what it says it is - Copyright. My more 'devious' side tells me that if you alter the file names on Copyright works they may become more difficult or even impossible for people to find, and thus prosecute you. But that is just a theory! As a musician I wanted to open an online Piano Bar (similar to Luciano's). I then came up against the PRS, ASCAP, Harry Fox, GEMA etc. No way could I afford the fees that these people wanted off me to perform Copyright works. One good point was that it made me start composing my own stuff, plus of course using Public Domain Music. If in doubt, I'd just say 'leave it' regarding Copyright stuff. Many pro. musicians NEED to demonstrate a few minutes of their playing on websites, - I guess they are running the gauntlet. I've had a word with both the British Equity and Musicians Union on this subject and neither were able to offer concrete advice. Best Wishes.
If I am in fact sued I will be hiring a lawyer to negotiate a reasonable fee. That's a given. Probably one from my home state. It's not that I don't think I should pay the photographer, it's obvious that he has a right, but the amount is my biggest annoyance and concern. Thanks for all the replies. I'm glad a site like this exists.
Good Luck fansite Since we are on the subject, does anyone have any links to sites that you can download images that are not copyrighted. Either low cost or free?
It's not they aren't copyrighted, it's that they allow you to basically do anything you want with them other than allow free downloads or use them for your own stock photo site a (perpetual, non-exclusive, usage rights subject to the above restriction) Istockphoto.com is probably the biggest and best, but they charge between $1 and $3 depending on resolution (they do choose one photo a week to allow to download for free. Here's a list: http://forums.digitalpoint.com/showthread.php?t=28545
Cheers mjewel, I'll check that one out - just found a good free stock photograph site for anyone interested; http://www.sxc.hu/index.phtml
Corbis allows for free registration to anyone but I'm not sure about the legality of using the pics elsewhere
I think this thread does indeed underline the importance of copyright - I had a false DMCA apparently filed at Yahoo! last year, so I tried to ensure that I was properly clean of copyright issues when I contested it - for example, I go to Yotophoto for copy-free images, and public release images from official sources. However, it is worth underlining that there's a case for claiming damages regardless of the corrective actions of the party. For example, I know of another internet company in my area who had their site scraped and then threatened with physical violence for raising the issue of copyright with the offender. The offender has now been billed £5,000 via Edinburgh solicitors for use of copyrighted material, and I'm led to believe the copyright holder sees persuing this action as worthwhile.
$500 for a professional photograph for commercial purposes is not a lot by any means. The fact is, you were using materials that did not belong to you and I find that deplorable. What is so hard to understand about using only material you own? I don't mean to get on your case (this happens all too often), but you are not the victim here, the photographer is. There is no excuse for using materials that you do not own. If I misinterpreted the post, I apologize.
I think they are both victims. If the owner of the site did not place the images there, and genuinely did not know them to be copyrighted material then, wheras normally ignorance is no defence, in this case it would help reduce the liability. The person who knowingly uploaded the images here is the main culprit. That sais, it appears that at some time you knew about the ownership, and from that point on you were liable.