Copyright Claim - Sounds Dodgy

Copyright Claim - Sounds Dodgy

Author
Discussion

paul.deitch

1,590 posts

217 months

Saturday 16th May
quotequote all
This guy has set himself up specifically to assist people to fight Fechner Legal!
https://sos-recht.de/abmahnung/robert-fechner/

How often does that happen?

Saj7

5 posts

8 months

Saturday 16th May
quotequote all
paul.deitch said:
This guy has set himself up specifically to assist people to fight Fechner Legal!
https://sos-recht.de/abmahnung/robert-fechner/

How often does that happen?
hmmm so this guy has found a way to make money from this. either way its going to be mounting costs?

Saj7

5 posts

8 months

Wednesday 3rd June
quotequote all
anyone else? I got another threat saying he will start court proceedings.... its such a bogus letter.

apcsilver

1 posts

4 months

Sunday 9th August
quotequote all
The cases seem to go to court in Germany. Would anyone know if they have also gone to court in the USA or anywhere in the Far East.? Or can the demand payments in the USA or the Far East based on a German court orders? Thanks for any help.

librarygirl75

5 posts

4 months

Friday 14th August
quotequote all
apcsilver said:
The cases seem to go to court in Germany. Would anyone know if they have also gone to court in the USA or anywhere in the Far East.? Or can the demand payments in the USA or the Far East based on a German court orders? Thanks for any help.
Hello-Yes, I am curious, anything about this?

My backstory (which is basically like so many others, I have just spent the last 30 minutes pouring over this thread).

Last Wednesday I was contacted by a Marcin Zieliński who works for Photography Defender regarding an image (anyone dealt with this scum?) I had used four years ago in a very obscure, random, small post. I have a small travel and food blog that is purely for hobby pursuits as I make nothing off of it in terms of monetary compensation (and never have in all the years I've had it). it's not a commercial site, I don't reproduce anything. I immediately took down the image, let him know, and just said I didn't want any further issue.

I got this image from Flickr. Currently the photographer has downloading disabled. When I got it back in 2016, I WAS able to download it otherwise I wouldn't have been able to upload it to WordPress. I also properly cited the photographer-having the text link "image source" and then linking back directly to this photographer's image on Flickr.

I was told by this scum Mr. Zieliński that I needed to sign a cease and desist letter and then I would be charged based on the mfm fees which after reading all these threads, I have many issues with. The deadline to respond with the cease and desist was this past Wednesday. Well, that came and went and nothing. But today (Friday, August 14) I receive a new email from Zieliński telling me about the funds I am to pay.

Last week I had contacted an American attorney who specializes in copyright. Like many of you have said here, Photoclaim is such a crooked company, a predatory company to do what they do and then enact their fear mongering and harassing tactics.

I have so many issues with this-wiring money to a foreign bank, thus starting a string of, you need to pay more, just being blackmailed. The fact that I got this (like others) via email and certified mail. Since when are important legal matters sent via email?The rushed and harried deadline (the American lawyer said that with cease and desist matters, you don't get 4 days to comply which is how much time I was given). The photographer whose image I had included in a blog post, I went onto his website, I can't see anything even about licensing fees (nor find that image with his other licensed images too). I know it's the EU, but the photographer. I remember one of the previous threads saying that if the image isn't licensed in Germany, it's a moot point. Can anyone advise me on this fact?

And, one of the fees is "lack of indication source" I properly said image source and linked to his site. How is that not indicating the image source?

Here is the image from Flickr in question:
https://www.flickr.com/photos/loic80l/19317057739/...

Thank you to everyone who took the time to read this book. This has just caused me so much angst and worry since last week.

[b]Thank you for your timely reply.

However, apart from removing the photograph from your website, this infringement of my client’s copyrights obliges you to pay compensation in pursuance of § 97 UrhG.

I.

By the way of license analogy, you have to pay my client the usual licensing fee. To provide 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:

Subpage, 16.02.2016 - 02.08.2020

130.00 EUR

Subtotal

130.00 EUR

Lack of indication of source 100%

130.00 EUR

Total

260.00 EUR

Interest





48.13 EUR

Total + interest





308.13 EUR



Since you should have paid my client the due licensing fee already from the date on which you have started to use the photograph, based on the Bürgerliches Gesetzbuch (BGB) § 288 (1) you are requested to cover as well the interest fee in the amount of 5% above the basic interest rate published in the German Federal Gazette by the German Central Bank.



The total damage is therefore set to the amount of 308.13 EUR.

















II.


According to the German 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 6,260.00 EUR
Value in dispute 6,000.00EUR (Order to Cease and Desist) and Value in dispute 260.00 EUR (Damage)

Business fee

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

607.50 EUR

Flat rate expenses no. 7002 VV RVG

20.00 EUR

VAT 16% , § 13 Abs.1 RVG, no. VV 7008

100.40 EUR

Total legal costs

727.90 EUR





III.

Further, you have to pay for the cost of the documentation of the infringement, which is an amount of 95.00 EUR. Our client has ordered the documentation service RightsPilot UG (haftungsbeschränkt) 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 110.20 EUR.

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

308.13 EUR

Documentation

110.20 EUR

Legal fees

Grand total net





727.90 EUR

1,146.23 EUR

Sales tax not applicable





0.00 EUR

Grand total

1,146.23 EUR



We expect receipt of this amount no later than 20.08.2020 to the bank account below:

Rechtsanwalt Marcin Zieliński
Deutsche Bank AG
IBAN: DE93 1007 0124 0299 4085 00
BIC: DEUTDEDB101

-

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.



Should you fail to make the above-mentioned payment by the specified deadline, my client instructed me to take further legal action.
[b/]

bad company

13,177 posts

226 months

Friday 14th August
quotequote all
Very similar to this thread a few years ago. I asked Getty (who were threatening me) for proof that they had ownership or exclusive rights to the image. Eventually they went away.

https://www.pistonheads.com/gassing/topic.asp?h=0&...

librarygirl75

5 posts

4 months

Friday 14th August
quotequote all
bad company said:
Very similar to this thread a few years ago. I asked Getty (who were threatening me) for proof that they had ownership or exclusive rights to the image. Eventually they went away.

https://www.pistonheads.com/gassing/topic.asp?h=0&...
Sorry, I should have included the original email I received. He did list the photographer. When I go to that photographer's website (where I guess he does licensing through), I can't find the image I had used and determine what country his images are licensed in (he's French). I remember reading in the thread that the German claim wouldn't hold up if his images weren't licensed there.

And maybe I'm reading into it, but he mentions Paris as if Paris is the country, his nationality, and not just city of residence. Know what I mean?

Here's the original email:

hereby notify you that I was entrusted to represent the legal interest of the photographer Loïc Lagarde, Paris in this specific matter. In my capacity as an attorney, I hereby verify that I am duly authorized to act in this matter.

In the name and on the authority of my client I must inform you of the following state of affairs:

I.

My client was made aware by www.photoclaim.com that you have published a photograph taken by my client on the website under the URL

https://www.theredheadedtraveler.com/tag/european-...

With this act of publication, you have violated the copyrights of my client.

The matter in dispute relates to the photograph reproduced in this letter which you are using in breach of the copyrights, with particular emphasis on the moral rights of my client.

Your website has been secured by the company RightsPilot UG to the extent necessary for use as evidence in court and will be produced by way of such evidence in the event that you should contest the claim.

No agency that my client works with confirmed a license purchase from your side. Should you have a valid license, please forward us the licensing agreement. Unfortunately, you did not identify my client as the copyright owner as it would be due to an agreement.

II.

With the publication of the photograph, you have acted in violation of the copyrights due to my client as the holder of the copyright, in particular, the right to make works publicly available pursuant to section 19 a UrhG. There can be no doubt that the photograph is a copyrighted work within the meaning of the Copyright Act.

You are not entitled to disseminate the photograph, as you have done in flagrant disregard of the copyrights and moral rights of my client. The appropriation of third-party photographs without the consent of the rights holder represents a violation of copyright law. At no time did my client agree to the publication of the contested photograph in its present form.

The deliberate act of incorporating the photograph into your website is sufficient reason for us to assert the contested use by you of the photograph in question. It has no bearing on the claims in the present matter whether the rights of my clients have been deliberately or merely accidentally violated. Instead, the sole focus of the present matter is on the fact that the photograph was used without consent in the manner described above.

III.

To effectively rule out the risk of any recurrence, it is necessary to issue a cease and desist declaration enforced by a penalty for the future.

I therefore request that a declaration to cease and desist is submitted by

12.08.2020.

On the last page of this letter, you will find a pre-formulated declaration to cease and desist enforced by a penalty, which you are at liberty to use. A jurisdiction clause is common practice that goes beyond the infringement notified. The reimbursement of damages and legal fees is a legal obligation and the placement thereof in the declaration also goes beyond the infringement notified. The reimbursement of damages and legal costs and the declaration to cease and desist are two claims that are not connected to each other. You are, of course, also free to draft your own declaration to cease and desist. I would, however, draw your attention to the risk that an incorrectly or inadequately formulated declaration may not be sufficient to obviate the risk of reoffending.

If we do not receive a signed declaration to cease and desist from you by the stipulated deadline, we will assume that you have declined to accept this obligation. In this case, I am instructed to take further legal action immediately.

IV.

Due to the unlawful use of photography by your party, we request you to pay damages. The amount of compensation depends, among other factors, on the duration of illegal use. For this reason, based on § 101 UrhG, we ask you to provide information. Please state for how long the subject of infringement was publicly available on your website.

In addition, in accordance with § 101 UhrG, you are also obliged to provide full information on a possible larger extent of the use of the photograph in question. Claims related to such extensive use are explicitly reserved.

Should you wish to claim that your party is not responsible for the copyright infringement, according to § 101 UhrG we claim for information in that regard. In such case, please provide all data at your disposal within the stipulated deadline as to who made the photograph in question publicly available.

We hope that a lawsuit will not be necessary and we will help you with any questions you may have.

Yours faithfully,

bad company

13,177 posts

226 months

Friday 14th August
quotequote all
librarygirl75 said:
Sorry, I should have included the original email I received. He did list the photographer. When I go to that photographer's website (where I guess he does licensing through), I can't find the image I had used and determine what country his images are licensed in (he's French). I remember reading in the thread that the German claim wouldn't hold up if his images weren't licensed there.

And maybe I'm reading into it, but he mentions Paris as if Paris is the country, his nationality, and not just city of residence. Know what I mean?

Here's the original email:

hereby notify you that I was entrusted to represent the legal interest of the photographer Loïc Lagarde, Paris in this specific matter. In my capacity as an attorney, I hereby verify that I am duly authorized to act in this matter.

In the name and on the authority of my client I must inform you of the following state of affairs:

I.

My client was made aware by www.photoclaim.com that you have published a photograph taken by my client on the website under the URL

https://www.theredheadedtraveler.com/tag/european-...

With this act of publication, you have violated the copyrights of my client.

The matter in dispute relates to the photograph reproduced in this letter which you are using in breach of the copyrights, with particular emphasis on the moral rights of my client.

Your website has been secured by the company RightsPilot UG to the extent necessary for use as evidence in court and will be produced by way of such evidence in the event that you should contest the claim.

No agency that my client works with confirmed a license purchase from your side. Should you have a valid license, please forward us the licensing agreement. Unfortunately, you did not identify my client as the copyright owner as it would be due to an agreement.

II.

With the publication of the photograph, you have acted in violation of the copyrights due to my client as the holder of the copyright, in particular, the right to make works publicly available pursuant to section 19 a UrhG. There can be no doubt that the photograph is a copyrighted work within the meaning of the Copyright Act.

You are not entitled to disseminate the photograph, as you have done in flagrant disregard of the copyrights and moral rights of my client. The appropriation of third-party photographs without the consent of the rights holder represents a violation of copyright law. At no time did my client agree to the publication of the contested photograph in its present form.

The deliberate act of incorporating the photograph into your website is sufficient reason for us to assert the contested use by you of the photograph in question. It has no bearing on the claims in the present matter whether the rights of my clients have been deliberately or merely accidentally violated. Instead, the sole focus of the present matter is on the fact that the photograph was used without consent in the manner described above.

III.

To effectively rule out the risk of any recurrence, it is necessary to issue a cease and desist declaration enforced by a penalty for the future.

I therefore request that a declaration to cease and desist is submitted by

12.08.2020.

On the last page of this letter, you will find a pre-formulated declaration to cease and desist enforced by a penalty, which you are at liberty to use. A jurisdiction clause is common practice that goes beyond the infringement notified. The reimbursement of damages and legal fees is a legal obligation and the placement thereof in the declaration also goes beyond the infringement notified. The reimbursement of damages and legal costs and the declaration to cease and desist are two claims that are not connected to each other. You are, of course, also free to draft your own declaration to cease and desist. I would, however, draw your attention to the risk that an incorrectly or inadequately formulated declaration may not be sufficient to obviate the risk of reoffending.

If we do not receive a signed declaration to cease and desist from you by the stipulated deadline, we will assume that you have declined to accept this obligation. In this case, I am instructed to take further legal action immediately.

IV.

Due to the unlawful use of photography by your party, we request you to pay damages. The amount of compensation depends, among other factors, on the duration of illegal use. For this reason, based on § 101 UrhG, we ask you to provide information. Please state for how long the subject of infringement was publicly available on your website.

In addition, in accordance with § 101 UhrG, you are also obliged to provide full information on a possible larger extent of the use of the photograph in question. Claims related to such extensive use are explicitly reserved.

Should you wish to claim that your party is not responsible for the copyright infringement, according to § 101 UhrG we claim for information in that regard. In such case, please provide all data at your disposal within the stipulated deadline as to who made the photograph in question publicly available.

We hope that a lawsuit will not be necessary and we will help you with any questions you may have.

Yours faithfully,
Stressful for you. It’s been some years since I was in a similar position. From memory (fairly sure this’ll still be the case). Under U.K. law they can’t claim damages. They can only claim for the amount it would have cost you had you bought a license at the start.

I’d take down the image and not respond to their letter.

bad company

13,177 posts

226 months

librarygirl75

5 posts

4 months

Friday 14th August
quotequote all
bad company said:
Thanks very much for your responses! Oh, I did. I received the email (which by the way had been put in my junk folder) on August 7 and applied immediately saying I had taken down the image.

I don't know if anyone would know this but on Flickr-if I had been able to download the image at one time (which I had back in 2016 when I first wrote that blog post), does downloading images mean they're all under Flickr's Creative Commons category? Or is it just more, the photographer decides if they want downloading enabling or not. As I said in an earlier thread, the picture HAD been able to be downloaded back in 2016, otherwise I couldn't have uploaded it to WordPress. It's disabled now, the downloading capability I mean.

bad company

13,177 posts

226 months

Friday 14th August
quotequote all
librarygirl75 said:
Thanks very much for your responses! Oh, I did. I received the email (which by the way had been put in my junk folder) on August 7 and applied immediately saying I had taken down the image.

I don't know if anyone would know this but on Flickr-if I had been able to download the image at one time (which I had back in 2016 when I first wrote that blog post), does downloading images mean they're all under Flickr's Creative Commons category? Or is it just more, the photographer decides if they want downloading enabling or not. As I said in an earlier thread, the picture HAD been able to be downloaded back in 2016, otherwise I couldn't have uploaded it to WordPress. It's disabled now, the downloading capability I mean.
Then do no more. They’ll probably write again with more threats but I doubt they’ll actually start a legal case.

Europa1

10,923 posts

148 months

Friday 14th August
quotequote all
OP,

You have my sympathies: an organisation I have worked for has been on the receiving end of the same law firm. It looks like a niche practice specialising in these claims, at a monetary value that for most is not worth defending.

I'm confused by your reference to whether the image is "licensed" in certain countries. The starting point is of course it belongs to the creator, and it belongs to them absolutely - to use it, you need a licence from the creator. In your case you downloaded it from Flickr. I'm not convinced that automatically you can use it with a simple attribution. Flickr seems to offer a number of CC licence options - do you know which you relied on?


librarygirl75

5 posts

4 months

Friday 14th August
quotequote all
Europa1 said:
OP,

You have my sympathies: an organisation I have worked for has been on the receiving end of the same law firm. It looks like a niche practice specialising in these claims, at a monetary value that for most is not worth defending.

I'm confused by your reference to whether the image is "licensed" in certain countries. The starting point is of course it belongs to the creator, and it belongs to them absolutely - to use it, you need a licence from the creator. In your case you downloaded it from Flickr. I'm not convinced that automatically you can use it with a simple attribution. Flickr seems to offer a number of CC licence options - do you know which you relied on?
Thank you for responding. My apologies for being unclear by what I meant-I am so emotionally spent from all of this and typing faster than coherent thought is coming together. I saw this on this German lawfirm's website and so my statement was in regards to this (in my case the photographer is French, based in Paris. This is a German claim, the ones pursuing it I mean. So far I have been unable to find out where the photographer licenses his images-I'm assuming France since he's French).

International Jurisdiction of German courts?
In summary, this matter is about a photo from Dubai, owned by a Dutch photographer, who hired a German law firm in order to seek compensation from a US business. According to Bickel, the Berlin courts have jurisdiction over this case.

The first legal issues already arise at this point. The law is well-settled on the issue of when foreign courts have jurisdiction. The law does not allow plaintiffs to simply choose any jurisdiction world-wide that is favourable to them. As always, the individual circumstances specific to each case hold greater importance.

In the course of researching about the Dutch photographer we stumbled across his personal website. There the photographer clearly explains that the applicable terms and conditions that govern his photos and their usage are those found on DuPho (a Dutch association of professional photographers) and Dutch copyright law. No references whatsoever to Germany or German courts can be found.

The mere fact that photographer applies Dutch law in his work as a photograher, gives rise to grave concerns about the jurisdiction of a German court.

It was from this website-
https://hoesmann.eu/bickel-copyright-infringement-...

Unfortunately, I don't. I tried using the Internet Archive's Wayback Machine but the URL in Flickr has not been saved so I can't see the option that would have been the case in 2016.

librarygirl75

5 posts

4 months

Friday 14th August
quotequote all
Europa1 said:
OP,

You have my sympathies: an organisation I have worked for has been on the receiving end of the same law firm. It looks like a niche practice specialising in these claims, at a monetary value that for most is not worth defending.

I'm confused by your reference to whether the image is "licensed" in certain countries. The starting point is of course it belongs to the creator, and it belongs to them absolutely - to use it, you need a licence from the creator. In your case you downloaded it from Flickr. I'm not convinced that automatically you can use it with a simple attribution. Flickr seems to offer a number of CC licence options - do you know which you relied on?
Thank you for responding. My apologies for being unclear by what I meant-I am so emotionally spent from all of this and typing faster than coherent thought is coming together. I saw this on this German lawfirm's website and so my statement was in regards to this (in my case the photographer is French, based in Paris. This is a German claim, the ones pursuing it I mean. So far I have been unable to find out where the photographer licenses his images-I'm assuming France since he's French).

International Jurisdiction of German courts?
In summary, this matter is about a photo from Dubai, owned by a Dutch photographer, who hired a German law firm in order to seek compensation from a US business. According to Bickel, the Berlin courts have jurisdiction over this case.

The first legal issues already arise at this point. The law is well-settled on the issue of when foreign courts have jurisdiction. The law does not allow plaintiffs to simply choose any jurisdiction world-wide that is favourable to them. As always, the individual circumstances specific to each case hold greater importance.

In the course of researching about the Dutch photographer we stumbled across his personal website. There the photographer clearly explains that the applicable terms and conditions that govern his photos and their usage are those found on DuPho (a Dutch association of professional photographers) and Dutch copyright law. No references whatsoever to Germany or German courts can be found.

The mere fact that photographer applies Dutch law in his work as a photograher, gives rise to grave concerns about the jurisdiction of a German court.

It was from this website-
https://hoesmann.eu/bickel-copyright-infringement-...

Unfortunately, I don't. I tried using the Internet Archive's Wayback Machine but the URL in Flickr has not been saved so I can't see the option that would have been the case in 2016.

Europa1

10,923 posts

148 months

Friday 14th August
quotequote all
librarygirl75 said:
Thank you for responding. My apologies for being unclear by what I meant-I am so emotionally spent from all of this and typing faster than coherent thought is coming together. I saw this on this German lawfirm's website and so my statement was in regards to this (in my case the photographer is French, based in Paris. This is a German claim, the ones pursuing it I mean. So far I have been unable to find out where the photographer licenses his images-I'm assuming France since he's French).

International Jurisdiction of German courts?
In summary, this matter is about a photo from Dubai, owned by a Dutch photographer, who hired a German law firm in order to seek compensation from a US business. According to Bickel, the Berlin courts have jurisdiction over this case.

The first legal issues already arise at this point. The law is well-settled on the issue of when foreign courts have jurisdiction. The law does not allow plaintiffs to simply choose any jurisdiction world-wide that is favourable to them. As always, the individual circumstances specific to each case hold greater importance.

In the course of researching about the Dutch photographer we stumbled across his personal website. There the photographer clearly explains that the applicable terms and conditions that govern his photos and their usage are those found on DuPho (a Dutch association of professional photographers) and Dutch copyright law. No references whatsoever to Germany or German courts can be found.

The mere fact that photographer applies Dutch law in his work as a photograher, gives rise to grave concerns about the jurisdiction of a German court.

It was from this website-
https://hoesmann.eu/bickel-copyright-infringement-...

Unfortunately, I don't. I tried using the Internet Archive's Wayback Machine but the URL in Flickr has not been saved so I can't see the option that would have been the case in 2016.
You may be on a sticky wicket then, I'm afraid. I'm not sure an image being on Flickr automatically makes it subject to a CC licence - that is just one option.

There is EU cae law about the jurisdiction of a German court - I wouldn't recommend that as a challenge: it will bankrupt you in legal costs.

Did you comply with the Dupho Ts&Cs?

criss74

1 posts

2 months

Friday 16th October
quotequote all
Any update on this? @librarygirl75?

I got this email too.

m.r

1 posts

1 month

Thursday 12th November
quotequote all
Hello everyone,
We are facing a very similar situation, same name and surname of the lawyer, same kind of clame and threats. Any updates on how you got rid of these emails and any news if it was really a scam?

Thank you in advance.

IP

1 posts

Hi there,

I'm in the exact same situation as many of you on here. Can anyone tell me what happened when you failed to pay up? Thanks. (I reside in Europe btw.)

Edited by IP on Saturday 5th December 14:51


Edited by IP on Saturday 5th December 15:52