Publisher wants $XXXX

[skunker]

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

Hey guys, I've used this forum many times in the past and have gotten much great advice. I run a website dedicated to historical photos and I let my users upload their own historical photos in an automated process. I have a DMCA disclaimer on the website and also have my users agree to the terms of usage before uploading photos.

Recently, I was contacted by a publisher that found their photos on my website that was uploaded by a user of the site. I responded immediately and told them if they could point out the infringement, I would remove them from the website immediately. The publisher wrote back that it was too late...and they would like $XXXX in damages.

At this point, should I tell them to follow the DMCA procedures asking for approval that they own the images and then remove them once they have been confirmed as owned by the publisher? Also, do I have anything to fear and am I really protected by the DMCA in this case?

Thanks for any advice on the appropriate method of response.

 

[roger_h]

Are they in the same state as you? Do you know if these images have been registered? Speak with a copyright lawyer and get some advice - I did when this sort of thing happened to me. Ask the publishing company for certificates of registration for the photos. My guess is that they just want to try and get some money out of you (without too much effort) but if it turns out you're going to be a pain and make them sue you, it could be they'll drop the matter or be willing to negotiate a reduced settlement.

After looking into the matter some and doing some research it's my opinion that in general people want a cease and desist more than to be able to sue for damages, which is costly and difficult to get - even if they win.

 

[skunker]

Are they in the same state as you? Do you know if these images have been registered? Speak with a copyright lawyer and get some advice - I did when this sort of thing happened to me. Ask the publishing company for certificates of registration for the photos. My guess is that they just want to try and get some money out of you (without too much effort) but if it turns out you're going to be a pain and make them sue you, it could be they'll drop the matter or be willing to negotiate a reduced settlement.

After looking into the matter some and doing some research it's my opinion that in general people want a cease and desist more than to be able to sue for damages, which is costly and difficult to get - even if they win.

No, they are located in IRELAND. Does DMCA still protect me?

I did speak with a copyright lawyer about a year ago for situations like these and he told me to place a DMCA page on the website with procedures on what people need to do in order to file an infringement claim. Also, he told me to put a terms of usage agreement on the registration screen that people must agree to before they post content. I did those steps.

I am pretty sure the claimant owns the photographs because they are actually drawings with his name on them at the bottom. My moderators could not monitor everything so these drawings were posted on the website without our knowledge.

Either way, I told the guy to follow the steps on DMCA and then once I receive the notice, I'll remove the content. I'm waiting for his reply on this.

 

[roger_h]

Ireland? I seriously doubt that they'll bother to come after you legally. DMCA aside, I mean, what would they have to invest to sue you? All the forms, fees, and trouble to do so would hardly be worth it unless you represent a decent sized company with large monetary assets. From my POV they are, in a word, bluffing. Unless they have representation in your state and are willing to set down about $10K investment - just to retain an attorney and spend years in court - it's my guess they are just hoping to scare you into a settlement knowing that, for the most part, they would have to work hard, spend lots of dough and then in the end have little means to collect. Don't fall for it. I almost did.

How big is this publishing company? Do they have offices in the US? In Texas? Again, I would ask them to produce certificates of registration. If the alleged infringement happened before they registered them, you're probably in the clear. The DMCA is just another layer of protection for you IMO.

 

[roger_h]

Here's an interesting account of one man's infringement suit against a local company (who were stupid enough to use his images in - of all things - a phone book!)

phototour.minneapolis.mn.us/essays/copyright_lawsuit

(Copy and paste into your browser - I guess we can't post links.)

It clearly is an open and shut case of willful infringement - but even then it took the guy almost 4 years to begin to collect and countless trips to court in order to do so. IMO unless the infringee (is that a word?) has a bulletproof case there's little sense in going to court. Again, I think the best most people can hope for is for removal of their copyrighted content.

 

[skunker]

Hi Roger,
Thanks.

I just received a proper notice of claimed infringement from the claimant and it contains a list of links where his images were posted by a user on the forum. It contains the claimant's electronic signature and "good faith" verbage. According to DMCA, I need to then expeditiously remove the material and then inform the user of his offense.

The claimant is also asking that I submit a proposal "make up for the loss of sales that he may have occured."

I am going to remove the material since I have the proper notice. If you have any other thoughts, let me know. Thanks.

 

[FlyingRon]

If you've complied with the DMCA safe harbor requirements, all you do is tell them that you have complied with their request, provided the info on the person who uploaded the information, and tell them to otherwise go away.

It won't stop them from suing, but it should be an adequate defense.