Copyright Claim - Sounds Dodgy
Discussion
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.
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 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: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).
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,
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.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.
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.
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! 
(Ironically she was also a lawyer and did her MBA in Germany!).
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.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 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
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,
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,
I've just received a PM that has alerted me to this thread being resurrected, so I though I would add an update:
After receiving proof that the legal firm was acting on behalf of the copyright holder I negotiated a settlement.
There was no dispute regarding the source of the image not stating it was copyrighted, but it was nevertheless copyrighted. Basically no malicious intent was involved, but copyright was still breached.
My advice to anyone else who finds themselves in this position is to act fairly and honourably upon receiving such a notice, remove the image immediately and come to a fair settlement for inadvertently using such image. This is the case regardless of whether you (like I) used an image in good faith.
At the end of the day, in my circumstances, the barrage of emails meant that it was (in any event) cheaper for me to pay rather than defend the innocence of the breach.
I started this thread as it originally appeared to be a scam email. TBH I am still not 100% sure as my offers to pay for ongoing use of the image were completely ignored. That didn't resonate with me as being the stance a legal representative would take when acting on behalf of a client.
Anyway, the lessons learnt from this brief encounter were;
Cheers
After receiving proof that the legal firm was acting on behalf of the copyright holder I negotiated a settlement.
There was no dispute regarding the source of the image not stating it was copyrighted, but it was nevertheless copyrighted. Basically no malicious intent was involved, but copyright was still breached.
My advice to anyone else who finds themselves in this position is to act fairly and honourably upon receiving such a notice, remove the image immediately and come to a fair settlement for inadvertently using such image. This is the case regardless of whether you (like I) used an image in good faith.
At the end of the day, in my circumstances, the barrage of emails meant that it was (in any event) cheaper for me to pay rather than defend the innocence of the breach.
I started this thread as it originally appeared to be a scam email. TBH I am still not 100% sure as my offers to pay for ongoing use of the image were completely ignored. That didn't resonate with me as being the stance a legal representative would take when acting on behalf of a client.
Anyway, the lessons learnt from this brief encounter were;
- Never, without fail, assume any image is copyright free
- Always have a contractual agreement in place between you and the copyright holder that enables you to use the image for all purposes you may require it for (website, brochure, advertising, etc.)
- Do not assume that because you have a licence to use the image for one of the above you are able to use it for any other purpose
- If you use a third party for any design element, require the same as above
- Ensure your licensed usage is not time frame restricted
- Once again, when using a third party to design and source images, ensure they are contractually responsible for the copyright clearance both now and 30 years after they no longer exist - but you still want to use the image (I know that is repetition, but it is important)
Cheers
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