Copyright Infringement: Received Cease and Desist Letter, now what?

[Powka]

Hello to everybody,

I run an ultra-small news blog and I used a photographer's pic in one of the posts (I found it on Google Images, and removed part of the photo to fit into a thumbnail, unfortunately, that part of the photo also contained photographer's watermark). I got a Cease and Desist letter from the photographer's attorney, pointing out the fact that that particular photo was copyrighted, so I immediately took down the pic, and wrote back to them stating so (I don't have any legal experience). My blog is small, nobody almost visits (less than 20-30 visits a day), and it's not monetized (non-commercial; I don't earn anything from it). It's also very new, launched just a month ago. They want $10,000 in damages.

To my knowledge, I thought the image was used in Fair Use because it was for News Reporting website, which is what Fair Use is for. But since I have no legal experience, I assume I'm just an idiot.

What are my current options, and how should I proceed? I'm in California, LA.

If I should get an attorney immediately, how much would that cost?

Thanks! Your help is much appreciated!

 

[justalayman]

To my knowledge, I thought the image was used in Fair Use because it was for News Reporting website, which is what Fair Use is for

.you need to educate yourself before you ended up broke and living under a bridge. That is not fair use.

http://www.copyright.gov/fls/fl102.html

If I should get an attorney immediately, how much would that cost?

I would definitely look for an attorney. You need one for this but obviously need one that you can ask questions of so as to not do this again. I have no idea what it is going to cost. Hopefully the lawyers fees and what you end up paying the owner of the rights is less than $10k.

and the fact you trimmed it and removed the watermark really shows you knew it was copyrighted work and were attempting to hide that fact. You can reduce the size of an image. You don't have to trim it.

 

[Powka]

Thanks a lot for your input.

Their party is under the impression that my blog is based under some sort of company, but the truth is, there's no company. It's just me and some volunteer contributors who post occasionally, for about a month now. I'm not even based in the US, I'm just visiting.

At this point, would it be a good idea to contact the photographer (not the attorney) and explain the situation to them, as I didn't really mean to make any money from his photo or even gave it any significance whatsoever? Or would contacting the photographer be a stupid move?

Thank you.

 

[quincy]

Hello to everybody,

I run an ultra-small news blog and I used a photographer's pic in one of the posts (I found it on Google Images, and removed part of the photo to fit into a thumbnail, unfortunately, that part of the photo also contained photographer's watermark). I got a Cease and Desist letter from the photographer's attorney, pointing out the fact that that particular photo was copyrighted, so I immediately took down the pic, and wrote back to them stating so (I don't have any legal experience). My blog is small, nobody almost visits (less than 20-30 visits a day), and it's not monetized (non-commercial; I don't earn anything from it). It's also very new, launched just a month ago. They want $10,000 in damages.

To my knowledge, I thought the image was used in Fair Use because it was for News Reporting website, which is what Fair Use is for. But since I have no legal experience, I assume I'm just an idiot.

What are my current options, and how should I proceed? I'm in California, LA.

If I should get an attorney immediately, how much would that cost?

Thanks! Your help is much appreciated!

It is possible that your use of a thumbnail reproduction of the photographer's photo could be a fair use of the photo - if your use did not generate any income for you and you used it in one of your news blogs - or a court could potentially consider your use de minimis. It would require a review of your site and the way in which the photo was used with your blog post.

It would be important to know if the photograph - even though automatically protected under copyright laws once it was fixed in tangible form - was registered by the photographer prior to publication of the photo online. The date of registration can be used to determine if the photographer is entitled to collect statutory damages (which can be as low as $200 at the discretion of the judge but generally will range from $750 to $30,000 per infringement - and up to $150,000 should the infringement be especially egregious).

If there was no registration prior to the infringement or within three months of the photo's publication online, then the photographer would be limited to demonstrated losses and/or any profits generated by your publication (or, seemingly from what you say here, potentially a grand total of $0 unless the photographer can show a loss).

As to use of another's copyrighted material on a news site, there are some circumstances which will allow for a fair use defense - but it does not sound from the little you have posted that your use falls under the news-use exception.

I think your best option is to have all facts reviewed personally by an attorney in your area. Even if all other factors that need to be considered in a copyright infringement claim seem to lean in the photographer's favor, the $10,000 amount demanded seems awfully high. You should, at the very least, try to negotiate a reasonable settlement before you even think to pay the full amount demanded. And this would ONLY be if the personal review shows that the odds are against a successful "fair use" defense.

I will try to return shortly with a link to a case out of the Ninth Circuit for you to review (after I go over it once again myself to make sure it says what I think it says ). A read-through of it might help you (again, if I remember the decision correctly).

As to attorney costs, they vary widely but, because the amount of compensation being demanded by the copyright holder appears high, I believe the costs of an attorney review will be worth it to you.


edit to add: I just noticed you said you are not "based" in the U.S. Where do you live? The copyright laws can be far different in your home country than they are in the U.S. You plan to be visiting the U.S. for how long?

 

[Powka]

quincy, wow, thank you GREATLY for this awesome response. This is the most constructive response I received so far anywhere. I really appreciate your assistance in this matter, and I'm really impressed with your knowledge of the case.

To make things clearer:

- It seems the photograph HAS been registered/copyrighted, as the attorney included two registration codes/numbers as an attachment to C&D letter. When was the registration made, I have no idea - it doesn't say.

- They think that my website is registered as a company, but that's not true. I'm just one person, with no money, and no visitors on that website. Website is 1 month old, there's literally 20-30 visitors on a GOOD day, and that particular article has been seen by probably only 40-50 people overall (half of which are just probably bots, not real people). I have no clue how it could've caused such damages when nobody has even seen it there. I had no intention to capitalize on that photograph, the blog is non-commercial, and I didn't earn a single cent from that post or even the whole blog altogether. It's a hobby for now - to post news and critique - that got me into trouble.

- The attorney also got back to me saying they appreciate that I have removed the image, but they still want the money due to the damages (?) it caused. So it seems they are willing to pursue this.

- I've contacted a few attorneys, and the prices range from $800 to $1,500 for dealing with the case until/if it gets any more serious (lawsuit).

- I personally think, after doing some research, that Fair Use would not apply in my case since I removed the watermark, but then I'm also an idiot who removed a watermark, so what do I know.

- Also, should I close the website altogether? At this point, I don't want to have anything to do with it anymore, but I'm not sure if it's legal to do so.

My apologies for not being able to disclose the website or any names, this way making it harder for you to grasp the situation, but I'm sure you understand the reasons.

 

[justalayman]

Powka;3256801quincy, wow, thank you GREATLY for this awesome response. This is the most constructive response I received so far anywhere. I really appreciate your assistance in this matter, and I'm really impressed with your knowledge of the case.

quincy is "the man" when it comes to this area of law.

- It seems the photograph HAS been registered/copyrighted, as the attorney included two registration codes/numbers as an attachment to C&D letter. When was the registration made, I have no idea - it doesn't say.

http://www.copyright.gov/records/

- They think that my website is registered as a company, but that's not true. I'm just one person, with no money, and no visitors on that website. Website is 1 month old, there's literally 20-30 visitors on a GOOD day, and that particular article has been seen by probably only 40-50 people overall (half of which are just probably bots, not real people). I have no clue how it could've caused such damages when nobody has even seen it there. I had no intention to capitalize on that photograph, the blog is non-commercial, and I didn't earn a single cent from that post or even the whole blog altogether. It's a hobby for now - to post news and critique - that got me into trouble.

so they should excuse infringement?

- The attorney also got back to me saying they appreciate that I have removed the image, but they still want the money due to the damages (?) it caused. So it seems they are willing to pursue this.

unlikely they can support actual damages of that amount but since it is registered, statutory damages come into play.

- I've contacted a few attorneys, and the prices range from $800 to $1,500 for dealing with the case until/if it gets any more serious (lawsuit).

cheap help/ Find one you believe in. Make sure they actually practice in copyright law.

- I personally think, after doing some research, that Fair Use would not apply in my case since I removed the watermark, but then I'm also an idiot who removed a watermark, so what do I know.

if the owner does not agree, it is irrelevant since a fair use defense is an affirmative defense that you use once sued. By the time you get to that point, you have already spent several thousand dollars with no guarantee of winning.

My apologies for not being able to disclose the website or any names, this way making it harder for you to grasp the situation, but I'm sure you understand the reasons.

the additional info wouldn't really add anything to the situation. You have described the situation quite clearly.

 

[Powka]

Thank you, justalayman, that was certainly helpful!

 

[justalayman]

You're welcome.

to the matter of shutting down the site: no advantage I can think of as long as you do not have any other possibly infringing material on it.

 

[TigerD]

- I've contacted a few attorneys, and the prices range from $800 to $1,500 for dealing with the case until/if it gets any more serious (lawsuit).

Be ready to add at least one zero to those estimates.

DC

 

[Zigner]

Be ready to add at least one zero to those estimates.

DC

My jr. high school math teacher was quick to point out that one does not add a zero, one appends a zero

(That is the only thing I specifically remember learning in jr. high school math)

 

[quincy]

- It seems the photograph HAS been registered/copyrighted, as the attorney included two registration codes/numbers as an attachment to C&D letter. When was the registration made, I have no idea - it doesn't say.

- They think that my website is registered as a company, but that's not true. I'm just one person, with no money, and no visitors on that website. Website is 1 month old, there's literally 20-30 visitors on a GOOD day, and that particular article has been seen by probably only 40-50 people overall (half of which are just probably bots, not real people). I have no clue how it could've caused such damages when nobody has even seen it there. I had no intention to capitalize on that photograph, the blog is non-commercial, and I didn't earn a single cent from that post or even the whole blog altogether. It's a hobby for now - to post news and critique - that got me into trouble.

- The attorney also got back to me saying they appreciate that I have removed the image, but they still want the money due to the damages (?) it caused. So it seems they are willing to pursue this.

- I've contacted a few attorneys, and the prices range from $800 to $1,500 for dealing with the case until/if it gets any more serious (lawsuit).

- I personally think, after doing some research, that Fair Use would not apply in my case since I removed the watermark, but then I'm also an idiot who removed a watermark, so what do I know.

- Also, should I close the website altogether? At this point, I don't want to have anything to do with it anymore, but I'm not sure if it's legal to do so.

My apologies for not being able to disclose the website or any names, this way making it harder for you to grasp the situation, but I'm sure you understand the reasons.

First, following is a link to the case I mentioned earlier. The case is Kelly v Arriba Soft Corp, 336 F.3d 811 (9th Cir 2003): http://homepages.law.asu.edu/~dkarjala/cyberlaw/KelllyvArriba(9C2003).htm

Kelly v Arriba has a good discussion by the court on thumbnail reproductions. The decision, and the references to other cases, shows why a personal review of facts can be important. There are several factors a court considers in making a decision in a copyright infringement case, and how these factors are weighed by the court determines whether the use of another's copyrighted material will be "excused" as a fair use of the material.

I can't tell you whether to close your website. I am of the same mind as justalayman, however - I do not see any advantage to closing it, unless the experience with the Cease and Desist letter has scared you a bit about online publishing.

To continue with your website, though, you might want to read through the "Top Ten Rules for Limiting Legal Risk," available on the Knight Community News Network website (http://www.kcnn.org). This site is designed for website owners and bloggers and has a wealth of information and resources. When you get to the home page, click on the "Learning Modules" link in the banner on the home page, then scroll through the modules until you reach the "Top Ten Rules."

You can use the Copyright Office link justalayman provided to find out the date the photograph was registered. Again, this date can be important in knowing whether statutory damages can be collected.

If your site is limited to posting news, and critiques of the news, this can also play into how the copyrighted photo is viewed by a court.

Fair use could be a legitimate defense for you to use to combat the photographer's claims of infringement, but it is impossible for anyone here to tell you for sure. But, even if there is no legitimate defense to the infringement, the $10,000 is a figure that seems unreasonable to me, based solely on what you have posted here. The attorney you see will give you a better idea.

What country are you from, Powka, and when do you intend to return? I know the copyright laws in other countries could provide better defenses to infringement for your type of use than the U.S. does (for example, to name one country, the Copy Act of Finland would be friendlier).

Thanks for the nice words.

 

[TigerD]

My jr. high school math teacher was quick to point out that one does not add a zero, one appends a zero

(That is the only thing I specifically remember learning in jr. high school math)

My Jr. High School math teacher had a SuperBowl ring that he earned with the 1963 Bears. We spent some time that year watching game films.

DC

 

[Powka]

Thanks a million quincy for looking up that case and responding to my questions! You truly are the man.

I can't tell you whether to close your website. I am of the same mind as justalayman, however - I do not see any advantage to closing it, unless the experience with the Cease and Desist letter has scared you a bit about online publishing.

It scared me enough to never do any online publishing ever again. I don't have the money.

So if closing the website wouldn't be illegal for me to do, I'll probably just go ahead and close it.

By the way, does anybody know how to search that Copyright Catalog by the copyright registration code or whatever it is? I have something like this: VA 1-773-441

 

[justalayman]

Registration Number
- Omit spaces and hyphens
- Registration numbers must be 12 characters long. Type 2 letters followed by 10 digits, or 3 letters followed by 9 digits; add zeroes before the number:
VAu-598-764 is typed VAU000598764,
SR-320-918 is typed SR0000320918

Document Number
- Omit spaces and hyphens
- The number after the "v" is always 4 digits; the number after the "p" or "d" is always 3 digits
- V2606 P87 is typed V2606P087


from:

http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?Search_Arg=v1773441&Search_Code=REGS&PID=XSn75MkEM1tiez4MJOg8VmyVlnuVF&SEQ=20140408202307&CNT=25&HIST=1

 

[quincy]

Thanks a million quincy for looking up that case and responding to my questions! You truly are the man.



It scared me enough to never do any online publishing ever again. I don't have the money.

So if closing the website wouldn't be illegal for me to do, I'll probably just go ahead and close it.

By the way, does anybody know how to search that Copyright Catalog by the copyright registration code or whatever it is? I have something like this: VA 1-773-441

You're welcome, Powka.

It is too bad that you are considering closing your website, if you otherwise enjoy blogging, but it would not be "illegal" for you to do so, if you have not made firm commitments to anyone to keep it up and running.

VA stands for Visual Arts and the numbers that follow would be the registration number. You can search by using the registration number or you can search by using the photographer's name (which might be more complicated if the photographer has registered several works). With the name and registration number, you should be able to locate the month, the day and the year the registration for the photograph in question became effective.

Good luck.