Copyright Claim - Sounds Dodgy

Copyright Claim - Sounds Dodgy

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JulianPH

Original Poster:

8,361 posts

74 months

Saturday 3rd March 2018
quotequote all
Hi all, this is my first post on this forum.

I sourced some images for a website from google, trying to ensure they were not copyright protected.

However, I have now received an email from a German company called photograpy-defender.com claiming to be a partner of photoclaim.com and also claiming to be representing the photographer.

Now, if this is genuine and I have breached a photographer's copyright I will make immediate redress, but this sounds dodgy as I can't understand why an American who took a photo in Italy is using a German firm to pursue a British website.

They also made no attempt to enquire if I wanted to pay a royalty to use the image, just a bill for €1,698.74 and statements that I am legally obliged to pay their fees with some grand sounding legalese speak.

Obviously I took the photo down immediately, but I have no idea if this is a scam or not, nor if they are actually representing the photographer in question.

Any help appreciated, thanks.


FurtiveFreddy

8,430 posts

197 months

Saturday 3rd March 2018
quotequote all
Can you provide a link to the image on the site you got it from?

MockingJay

847 posts

89 months

Saturday 3rd March 2018
quotequote all
Depends where you lifted the image from without consent.

FurtiveFreddy

8,430 posts

197 months

Saturday 3rd March 2018
quotequote all
It is a genuine claim, by the way.

Whether it can be enforced is another discussion but it would help to see the images in question.

It would also help if you could post a scan of the letter (with your personal stuff redacted of course).

JulianPH

Original Poster:

8,361 posts

74 months

Saturday 3rd March 2018
quotequote all
FurtiveFreddy said:
Can you provide a link to the image on the site you got it from?
This is the photo, but it is not the site I found it on as it name checks the photographer and so it would have been easy for me to make contact. The site I found it on had no name linked to it.

JulianPH

Original Poster:

8,361 posts

74 months

Saturday 3rd March 2018
quotequote all
FurtiveFreddy said:
It is a genuine claim, by the way.

Whether it can be enforced is another discussion but it would help to see the images in question.

It would also help if you could post a scan of the letter (with your personal stuff redacted of course).
Here is the letter. There was no attached affidavit by the way:

In the attachments to this email, you will find an affidavit of my client, which confirms his authorship of the discussed photograph. The raw file of the photograph can be presented only in a court, since if we sent it to someone else, that person could claim ownership.

By the way of license analogy, you have to pay my client the usual licensing fee. To provide a high degree of transparency, my client applies the fees of the MFM-tables (Mittelstandsgemeinschaft Foto-Marketing) that represent an industry average fee and that are taken by the German courts to determine the fair compensation of a photographer. In your case this fee is:

Online Use, Subpage, 06.11.2015 – 23.01.2018 465.00€



Lack of indication of source (+100%) 465.00€

Total 930.00€

According to the law you also have to reimburse my client for the costs incurred by my involvement in this matter through the reimbursement of the business fee pursuant to no. 2300 of the remuneration schedule (VV) appended to the Lawyers’ Remuneration Act (RVG), as follows:


Value in dispute € 6,000




Business fee

Sections 2, 13, RVG, no. 2300 VV RVG (sentence 1.5)


€ 531.00

Flat rate expenses no. 7002 VV RVG


€ 20.00

VAT 19% , § 13 Abs.1 RVG, no. VV 7008


€ 104.69

Total legal costs


€ 655.69

You also have to pay for the cost of the documentation of the infringement, which is an amount of EUR 95.00. Our client has ordered the documentation service RightsPilot UG to secure evidence usable in court. The documentation costs adequately represent a causal and unavoidable loss for my client and therefore you must reimburse this sum. As our client is not entitled to deduct VAT, note that the number mentioned is merely a net-sum. The full amount is 113.05€.

Regarding the eligibility of copyright documentation costs, see those representative examples of the following judgments:

AG Hamburg, Entscheidung vom 13.03.2012, Az. 26a C 84/12, AG Hamburg, Entscheidung vom 14.06.2012, Az. 35a C 40/12, AG Hamburg, Urteil vom 17.10.2011, Az. 36A C 368/10, AG Berlin-Charlottenburg, Urteil vom 29.11.2012, Az. 210 C 63/12, AG Stuttgart, Urteil vom 26.09.2012, Az. 50 C 4382/11, AG Berlin-Charlottenburg, Urteil vom 20.11.2012, Az. 225 C 196/12, AG Berlin-Charlottenburg, Urteil vom 02.09.2014, Az. 225 C 34/14, AG Berlin-Charlottenburg, Urteil vom 05.02.2009, Az. 239 C 282/08, AG Berlin-Charlottenburg, Urteil vom 08.08.2013, Az. 210 C 6/13, AG Stuttgart, Urteil vom 10.7.2012, Az. 2 C 3327/11, AG München, Entscheidung vom 31.03.2010, Az. 161 C 15642/09, AG Charlottenburg, Entscheidung vom 29.11.2012, Az. 201 C 273/12, LG Hamburg, Entscheidung vom 17.04.2009, Az. 308 O 612/08.

You are therefore required to make a total payment of:

Damages

Documentation


€ 930.00

€ 113.05

Legal fees


€ 655.69

Grand total


€ 1,698.74

We expect receipt of this amount no later than 14 February 2018 to the bank account stated on the first page of this letter. Should you fail to make the above-mentioned payment by the specified deadline, my client instructed me to take further legal action.

In addition to that, you still have to declare to cease and desist, so that my clients copyright is protected in future. On the last page of the initial letter you can find a declaration that you can use.

Yours faithfully,

FurtiveFreddy

8,430 posts

197 months

Saturday 3rd March 2018
quotequote all
I can't see any photo or link to where you found it...

JulianPH

Original Poster:

8,361 posts

74 months

Saturday 3rd March 2018
quotequote all
FurtiveFreddy said:
I can't see any photo or link to where you found it...
http://onebigphoto.com/stairs-inside-vatican-museum/

Sorry, being an idiot! As I said, I have no idea now what site I took it from, but there was no reference to the photographer.

FurtiveFreddy

8,430 posts

197 months

Saturday 3rd March 2018
quotequote all
How long ago did you source the image and put it on your site?

What context was it used in on your site?

davepoth

29,395 posts

159 months

Saturday 3rd March 2018
quotequote all
JulianPH said:
trying to ensure they were not copyright protected.
https://www.copyrightservice.co.uk/copyright/p01_u...

In the UK, any creative work (including photographs) is automatically copyrighted. Unless there is something specific (e.g. "This work is in the public domain") appended to the work you should always assume something is copyrighted.

As to the current situation I did a reverse image search:

https://www.tineye.com/search/8846d7f1a5b28189f6b3...

And it seems that this is a not particularly uncommon shot. In addition to the few copies of it on dodgy Russian blogs, I counted three other photographers that had taken a similar enough shot for this search engine to consider them the same photo.

It might be worth checking the metadata of the image file to see if there are any clues as to who took the original photo? You may be in breach of copyright, just not the copyright of the person who is suing you.

FurtiveFreddy

8,430 posts

197 months

Saturday 3rd March 2018
quotequote all
The letter mentions these dates - 06.11.2015 – 23.01.2018 so I'm assuming that's the period you had the photo on your site?

I agree with the above comment that there are plenty of similar, almost identical, photos out there so you need to check the actual photo you used to see if it's the same one.

JulianPH

Original Poster:

8,361 posts

74 months

Saturday 3rd March 2018
quotequote all
davepoth said:
https://www.copyrightservice.co.uk/copyright/p01_u...

In the UK, any creative work (including photographs) is automatically copyrighted. Unless there is something specific (e.g. "This work is in the public domain") appended to the work you should always assume something is copyrighted.

As to the current situation I did a reverse image search:

https://www.tineye.com/search/8846d7f1a5b28189f6b3...

And it seems that this is a not particularly uncommon shot. In addition to the few copies of it on dodgy Russian blogs, I counted three other photographers that had taken a similar enough shot for this search engine to consider them the same photo.

It might be worth checking the metadata of the image file to see if there are any clues as to who took the original photo? You may be in breach of copyright, just not the copyright of the person who is suing you.
I think my request may be coming across badly. If I am in breach of copyright then I take full responsibility and will make full redress.

My concern is that the company pursuing this have provided no proof that they represent the photographer claiming to own the rights to the photo and so I have no idea if the claim is genuine and the photographer will receive any funds due.

This is why I wondered why an American photographer taking a photo in Italy would use a German company to pursue a British website.

If it is genuine I will deal with it, it just sounds dodgy.

In any event I will contact the photographer regarding the matter now.

ReverendCounter

4,143 posts

136 months

Saturday 3rd March 2018
quotequote all
OP, do you do google image reverse searches using the camera icon in the search bar?

You should be able to get google to provide all similar results which are held in google-crawled sites instead of results for 'vatican stairs' or similar.

FurtiveFreddy

8,430 posts

197 months

Saturday 3rd March 2018
quotequote all
You only need to check out http://photoclaim.com/en/ to see it's genuine.

It's a fairly heavy-handed way of handling something which could be sorted out with an email or phone call, but if the photographer is earning his/her living taking pictures, they may want to use a service like this to handle infringements and accept they'll pay a large percentage of the settlement.

The letter you have essentially tells you to stop using the image and pay for the time you have used it. So it is asking you for the royalty that is due (plus some additional fees).

Looking at their court cases page, most of them have gone to court in Germany and Austria where they probably act directly. They may find it difficult to try and enforce the settlement in the UK, but you may not want to test this.

If you feel the amount of money they are asking for is fair then it's probably best for everyone if you pay it, but obviously you need to be happy it's above board first.

I'd still check to make sure the image you used was the actual one they are claiming it is.

JulianPH

Original Poster:

8,361 posts

74 months

Saturday 3rd March 2018
quotequote all
davepoth said:
And it seems that this is a not particularly uncommon shot. In addition to the few copies of it on dodgy Russian blogs,
Highly likely that is where it came from, my wife was helping me to find an image - and she is a dodgy Russian! rolleyes

(Ironically she was also a lawyer and did her MBA in Germany!).



JulianPH

Original Poster:

8,361 posts

74 months

Saturday 3rd March 2018
quotequote all
FurtiveFreddy said:
You only need to check out http://photoclaim.com/en/ to see it's genuine.

It's a fairly heavy-handed way of handling something which could be sorted out with an email or phone call, but if the photographer is earning his/her living taking pictures, they may want to use a service like this to handle infringements and accept they'll pay a large percentage of the settlement.

The letter you have essentially tells you to stop using the image and pay for the time you have used it. So it is asking you for the royalty that is due (plus some additional fees).

Looking at their court cases page, most of them have gone to court in Germany and Austria where they probably act directly. They may find it difficult to try and enforce the settlement in the UK, but you may not want to test this.

If you feel the amount of money they are asking for is fair then it's probably best for everyone if you pay it, but obviously you need to be happy it's above board first.

I'd still check to make sure the image you used was the actual one they are claiming it is.
I'm going to ask them for proof they actually represent the photographer and also contact the photographer directly. I pay for all the images I use and have no problem paying for this one.

I was just concerned that this was a scam as I have no evidence any money I sent would actually get to the right person (given the tedious geographical relationships and the missing affidavit).

Also, under UK law, only a court can award legal costs. I am still, therefore, reluctant to pay these (but it is probably not worth the time debating to be honest).

Thanks for your input, Julian

JulianPH

Original Poster:

8,361 posts

74 months

Saturday 3rd March 2018
quotequote all
This was the latest email by the way. You can see from this my suspicions:

Dear Sir or Madam,

In the case Locardi / XXX I refer to the previous correspondence.

Also on our second reminder, we did not receive any payment from your side. Therefore, we were now forced to prepare a lawsuit. This will be filed in the District Court of Berlin (Landgericht Berlin, Littenstraße 12-17, 10179 Berlin) since this court is also locally responsible for the case.

If you assume that in United Kingdom you don’t have to worry about a lawsuit in Germany, I strongly suggest you take a look at the judgment of the European Court of Justice from October 3rd, 2013: http://photoclaim.com/en/verdicts-and-orders/. According to the law, my client has the opportunity to file a lawsuit claiming his damages in any EU member state.

Should you suspect that we cannot enforce a verdict in United Kingdom even in the event of a successful trial, I would like to draw your attention to the European Order for Payment procedure. It is no longer a problem to enforce payments within the European Union; borders do not stop the process. However, the costs occurring in such event will be much higher for you, in case we have to involve one of our international partners.

Bear in mind that since my previous letter, you are being in default and additional costs in the amount of 5% above the basic interest rate published in the German Federal Gazette by the German Central Bank have been arising daily.

We offer you one last chance to settle out of court. We may within two weeks, that is until 20 March 2018 withdraw the matter. If by that date the outstanding balance in the amount of € 1,698.74 is transferred to the account designated above, we will refrain from the lawsuit.

Should you not be able to pay this amount, my client is ready to offer you an instalment payment. Get in touch with us to arrange an instalment plan. Otherwise, should the court decide in our favour, you will be sentenced to process costs in the amount of € 2,648.90 in addition to the outstanding balance.

Should you decide to settle out of court, please include the case number in the title of the transfer for us to identify the payment. This will also allow us to send you a confirmation of settlement as soon as possible.

We hope that a lawsuit can be prevented at the last minute and we will help you with any questions you may have.

Yours faithfully,

paul.deitch

1,590 posts

217 months

Saturday 3rd March 2018
quotequote all
Take a look at this then contact your lawyer. This article suggests that their claim "may be" invalid and that their costs are inflated but contact your lawyer before doing anything

JulianPH

Original Poster:

8,361 posts

74 months

Saturday 3rd March 2018
quotequote all
paul.deitch said:
Take a look at this then contact your lawyer. This article suggests that their claim "may be" invalid and that their costs are inflated but contact your lawyer before doing anything
Hi Paul, no link to look at..! Cheers smile

FurtiveFreddy

8,430 posts

197 months

Saturday 3rd March 2018
quotequote all
This is a bit like a speeding fine you might pick up when in another country.

My view is if I know I had been speeding and the fine is reasonable, I should probably just pay it to avoid potential hassle in the future.

If it's unreasonable or comes from a country which has no agreement with the UK then I ignore it knowing they can't come after me for the money.

In this case, as it's EU countries involved, there is the possibility you could be chased for payment but I'm not an expert in that field. Engage a lawyer here and all you'll probably do is end up paying even more money out for something you already admit to having done i.e. used a copyrighted image on your website.

If they were demanding, say, 200 Euros it would be an easy decision for me to make but for 1600 Euros I'd be looking at alternatives just like you.