Copyright Infringement - Images

[ChefV]

What is the name of your state (only U.S. law)? PA

I had a web designer do some blog posts for me and apparently he used an image in a post he shouldn't have. I just received a letter from an attorney telling me his client is going to sure me unless I settle out of court for $15k. Now, I realize I am responsible for the content on my website, and have removed the post in question, along with the image, but isn't he supposed to ask me to remove the image first before demanding compensation and threatening to sue?

Any advice would be greatly appreciated.

 

[FlyingRon]

They're not obliged to do anything first. The first you could have heard of it was the lawsuit being served on you. Frankly, I'd point out that it was done without my knowledge and it has been removed and not pay them anything. Write back if they actually sue you.

 

[ChefV]

Thanks so much, I will do that!

 

[ChefV]

They're not obliged to do anything first. The first you could have heard of it was the lawsuit being served on you. Frankly, I'd point out that it was done without my knowledge and it has been removed and not pay them anything. Write back if they actually sue you.

My response to the attorney:

Good afternoon,

I am in receipt of your correspondence regarding the claim of copyright infringement. As we do acknowledge ownership of the website, we do not manage the site or its content. All content is created and managed by our IT contractor and we were unaware that this contractor had used your client’s image without acquiring the proper licensing. We take the issue of copyright infringement very seriously and have performed our own investigation into the matter.

We have reviewed the blog post and have determined that the post was generic in nature and was not used for monetary gain. Xxxxx did not claim ownership of the image and as such, did not create a situation that would generate a lost revenue to your client.

We apologize for our contractor’s actions and assure you his contract will be immediately terminated. We have removed the post and the image from our website and hope this prompt response will be satisfactory to your client.

Thank you for bringing this to our attention.

Best regards,

Victor

 

[Zigner]

Well that should be helpful - as evidence for them when they file their lawsuit.

 

[ChefV]

Well that should be helpful - as evidence for them when they file their lawsuit.

They have screenshots of the image, webpage and upload locations so there is no disputing their claim. It is pretty clear all this guy does is search this kind of stuff out.

 

[Zigner]

They have screenshots of the image, webpage and upload locations so there is no disputing their claim. It is pretty clear that this guy is very diligent about protecting his IP from people who have no problem stealing it.

(There, I fixed it for you.)

Look, I know that you didn't personally steal his IP, but that's largely irrelevant. I agree that sending a letter *may* help, but it could also hurt. Could it hurt you more than if they just based a suit on the evidence they already have? Probably not.

 

[quincy]

What is the name of your state (only U.S. law)? PA

I had a web designer do some blog posts for me and apparently he used an image in a post he shouldn't have. I just received a letter from an attorney telling me his client is going to sure me unless I settle out of court for $15k. Now, I realize I am responsible for the content on my website, and have removed the post in question, along with the image, but isn't he supposed to ask me to remove the image first before demanding compensation and threatening to sue?

Any advice would be greatly appreciated.

Usually the first step a copyright holder will take when finding their copyrighted work appearing online without their authorization is to file a DMCA takedown notice - or they will send a cease and desist letter with a demand for compensation. The copyright holder is not required to do either, however. The copyright holder can simply file an infringement suit and the alleged infringer's first notification will be the receipt of a summons and complaint.

To be successful with an infringement suit, first the copyright holder must have the copyrighted work federally registered with the US Copyright Office. If the work is federally registered prior to infringement, the copyright holder will be eligible for statutory damages of between $750 per infringed work to $30,000 per infringed work. If the work is not registered in a timely fashion, the copyright holder will be limited to suing for actual damages and any profits the infringer received as a result of the infringement.

In your response to the notice of infringement, you will first want to verify that the one who sent the notice is actually the one who has rights in the work or actually represents the one who has rights in the work. There must be standing to sue.

You want to learn from the copyright holder if or when their work was registered with the US Copyright Office, to find out if the copyright holder will be limited to actual damages and profits. You also want to learn if the copyrighted work is one that is/has been licensed and, if so, what the normal licensing fee is.

In other words, you want to know if the work belongs to the one who notified you and if $15,000 is a fair and reasonable compensation.

The copyright holder must show there was an unauthorized use but you apparently believe the work appearing on your site was a copyrighted work and that your website developer did not acquire proper authorization from the owner. Innocent infringement can be used as a mitigating factor to a copyright infringement suit but does not excuse the infringement. It does allow a judge at his discretion to award less damages.

If you discover with your research that the copyright holder cannot easily support a $15,000 amount, you will probably want to negotiate with the copyright holder for a lower amount. If the copyright holder is not entitled to statutory damages and is unable to show any profits or losses, the copyright holder may not want to go to the expense of a court action.

I would have the letter you received personally reviewed by a copyright attorney in your area, to go over your options, this before settling with the copyright holder for $15,000.

Whatever you decide to do now, it was a good first action to remove the copyrighted work from your site.