How to answer image copyright infringement letter/demand

[yanks]

Hi,
I received a letter that an image of a celebrity on my website is copyright protected and they are demanding its' removal and several thousand dollars for a retro-active license to use. I'm assuming it's from the photographer of the image. I thought I had permission to use the image by asking the owner of the website that I found it on if I could use it via e-mail and he responded "take whatever you need". I know that's not a license to use now, but then I thought I was good to go with that. I of course took down the image but don't know whether I should contact the attorney myself and discuss or if I need to hire my own attorney to do so for me. I have shut the site down completely until I can go through it with a fine tooth comb to make sure nothing else could be there that I am not aware of or have forgotten. When I started this site I was pretty clueless. The site is relatively small and with adsense ads about breaks even each year. Just for fun. (not so much fun after this)

So my questions are should I talk with this attorney and see what if anything we can work out? And if I do, I'd like to get something from him stating that this payment is IT. I don't want to make a payment then get another notice that they found another image and want more money even if I already took it down before they notified me of the infringement. Basically I don't want to open the flood gates if they know that have someone now who will pay up and not hire an attorney. Do you think if we can settle on a decent amount to settle this "case" that I can ask that any other images they may have found or find that was pre-dates the settlement that they have to allow me to take it down first and not sue me for it? Can you be sued if the site with the image is already taken down before they notify you of an infringement?

I really don't think it's more than this one image, but it's nerve wracking the amount of money they are looking for this time. No money was earned from this image. It wasn't used in an ad or anything like that. Just a picture of the person we were talking about.

Thanks so much,

 

[quincy]

Hi,
I received a letter that an image of a celebrity on my website is copyright protected and they are demanding its' removal and several thousand dollars for a retro-active license to use. I'm assuming it's from the photographer of the image. I thought I had permission to use the image by asking the owner of the website that I found it on if I could use it via e-mail and he responded "take whatever you need". I know that's not a license to use now, but then I thought I was good to go with that. I of course took down the image but don't know whether I should contact the attorney myself and discuss or if I need to hire my own attorney to do so for me. I have shut the site down completely until I can go through it with a fine tooth comb to make sure nothing else could be there that I am not aware of or have forgotten. When I started this site I was pretty clueless. The site is relatively small and with adsense ads about breaks even each year. Just for fun. (not so much fun after this)

So my questions are should I talk with this attorney and see what if anything we can work out? And if I do, I'd like to get something from him stating that this payment is IT. I don't want to make a payment then get another notice that they found another image and want more money even if I already took it down before they notified me of the infringement. Basically I don't want to open the flood gates if they know that have someone now who will pay up and not hire an attorney. Do you think if we can settle on a decent amount to settle this "case" that I can ask that any other images they may have found or find that was pre-dates the settlement that they have to allow me to take it down first and not sue me for it? Can you be sued if the site with the image is already taken down before they notify you of an infringement?

I really don't think it's more than this one image, but it's nerve wracking the amount of money they are looking for this time. No money was earned from this image. It wasn't used in an ad or anything like that. Just a picture of the person we were talking about.

Thanks so much,

In what state are you located or, if not in the US, what country?

Did you receive a DMCA takedown notice from the copyright holder and did you remove the images promptly upon demand?

Permission to use a copyrighted image must be granted by the copyright holder. It appears you received permission to use the copyrighted image from a copyright-infringer or the holder of a limited license which did not extend to permitting others to use the image. Either way, you appear to have infringed on the copyright holder's rights and, if so, the copyright holder is entitled to compensation for the unauthorized use (this depending on the specifics of your use*).

It is sometimes possible to negotiate with a copyright holder so that the amount originally demanded in the way of compensation can be lowered. A copyright holder who licenses their works will generally demand of an infringer their usual licensing fee and a court will often uphold an award of damages that reflect this usual fee (plus court costs and attorney fees).

I recommend a few things.

The first thing you will want to do is to make sure that the demand letter you received is from the actual copyright holder. You can ask for the copyright registration number - although, because copyrights do not need to be registered for copyright protection, this might not be available.

If the image is not federally registered, there will be no statutory damages that can be collected by the copyright holder. The copyright holder will be limited in any lawsuit to actual damages suffered (or any profits realized by you). The actual damages can, however, be the typical license fee charged by the rights-holder for use of the image.

If the image is registered or demonstrated to be owned by the one making the demands on you, you can either try to negotiate directly with the copyright owner to hopefully lower the amount needed to settle the infringement, or you can have an attorney negotiate with the copyright holder for you.

Yes, you can be sued even if you remove an infringed work from its place online. And any additional copyrighted images that are discovered to have been used without authorization from the copyright holders can lead to additional legal actions (e.g., injunctions, settlement demands, infringement suits).



*there are some uses of copyrighted images that can be judged a fair use - you might want an IP attorney in your area to personally review the image and your use of it to see if your use could fall within the fair use guidelines outlined in the Copyright Act

 

[yanks]

In what state are you located or, if not in the US, what country?

Did you receive a DMCA takedown notice from the copyright holder and did you remove the images promptly upon demand?

Permission to use a copyrighted image must be granted by the copyright holder. It appears you received permission to use the copyrighted image from a copyright-infringer or the holder of a limited license which did not extend to permitting others to use the image. Either way, you appear to have infringed on the copyright holder's rights and, if so, the copyright holder is entitled to compensation for the unauthorized use (this depending on the specifics of your use*).

It is sometimes possible to negotiate with a copyright holder so that the amount originally demanded in the way of compensation can be lowered. A copyright holder who licenses their works will generally demand of an infringer their usual licensing fee and a court will often uphold an award of damages that reflect this usual fee (plus court costs and attorney fees).

I recommend a few things.

The first thing you will want to do is to make sure that the demand letter you received is from the actual copyright holder. You can ask for the copyright registration number - although, because copyrights do not need to be registered for copyright protection, this might not be available.

If the image is not federally registered, there will be no statutory damages that can be collected by the copyright holder. The copyright holder will be limited in any lawsuit to actual damages suffered (or any profits realized by you). The actual damages can, however, be the typical license fee charged by the rights-holder for use of the image.

If the image is registered or demonstrated to be owned by the one making the demands on you, you can either try to negotiate directly with the copyright owner to hopefully lower the amount needed to settle the infringement, or you can have an attorney negotiate with the copyright holder for you.

Yes, you can be sued even if you remove an infringed work from its place online. And any additional copyrighted images that are discovered to have been used without authorization from the copyright holders can lead to additional legal actions (e.g., injunctions, settlement demands, infringement suits).



*there are some uses of copyrighted images that can be judged a fair use - you might want an IP attorney in your area to personally review the image and your use of it to see if your use could fall within the fair use guidelines outlined in the Copyright Act

thanks very much! I since spoke to an attorney who pretty much said the same. Like they the computer said at the end of the movie, War Games, "interesting game, the best move is not to play". I see both sides. No one wants to work for free and these laws can be a bit much for innocent mistakes like I believe mine was. It may be "fair use". But good points and I think I've got a direction to follow now. Thanks much

 

[quincy]

thanks very much! I since spoke to an attorney who pretty much said the same. Like they the computer said at the end of the movie, War Games, "interesting game, the best move is not to play". I see both sides. No one wants to work for free and these laws can be a bit much for innocent mistakes like I believe mine was. It may be "fair use". But good points and I think I've got a direction to follow now. Thanks much

You're welcome, yanks.

I hope you discover the copyright holder is not unreasonable and will see your use as an innocent infringement, so that you can escape without having to pay too much for the use of the copyrighted image on your site.

Good luck, and thanks for the thanks.