What is your advice in such situation?

[gmilada]

What is the name of your state (only U.S. law)? Kansas I created a website to offer hirudotherapy treatment( treatment by leeches) and posted two own pictures on my front page. But later I went to the Russian public domain xxxx.ru( I often go there as well as other Russian speaking people to communicate, post and exchange photos, notes, greet each other and so on) One woman posted a picture with two leeches there. There were not any links, signs and so on on that picture. I liked that picture and posted it on the front page of my website. About one month later I have received a letter from XXX.com. They wrote that this picture is their property, and I must immediately remove it from my website and because I had benefits from their picture I must pay them $500 settlement fee. I removed this picture immediately from my website, and, moreover, closed my website because since I had it, no one customer emailed or called me. I did not earn even one cent as a hirudotherapist. I did not get any profits from their picture. I have evidence of this. Now I am unemployed and looking for a job. I wrote XXX.com about that, and sent email where I offered them $25 because it is affordable for me and their damage is minimal. Moreover, I attached a copy of the Russian public domain page where I found this picture. They answered me that they want to get as minimum $350. What is your advice in such situation because I am really going through a hard time now? Moreover, a picture from their catalog(this firm makes money on the photos) has a little difference with my picture.

 

[quincy]

What is the name of your state (only U.S. law)? Kansas I created a website to offer hirudotherapy treatment( treatment by leeches) and posted two own pictures on my front page. But later I went to the Russian public domain www.XXXX.ru( I often go there as well as other Russian speaking people to communicate, post and exchange photos, notes, greet each other and so on) One woman posted a picture with two leeches there. There were not any links, signs and so on on that picture. I liked that picture and posted it on the front page of my website. About one month later I have received a letter from XXXX.com. They wrote that this picture is their property, and I must immediately remove it from my website and because I had benefits from their picture I must pay them $500 settlement fee. I removed this picture immediately from my website, and, moreover, closed my website because since I had it, no one customer emailed or called me. I did not earn even one cent as a hirudotherapist. I did not get any profits from their picture. I have evidence of this. Now I am unemployed and looking for a job. I wrote XXXX.com about that, and sent email where I offered them $25 because it is affordable for me and their damage is minimal. Moreover, I attached a copy of the Russian public domain page where I found this picture. They answered me that they want to get as minimum $350. What is your advice in such situation because I am really going through a hard time now? Moreover, a picture from their catalog(this firm makes money on the photos) has a little difference with my picture.

It is possible that the picture of the leeches that you found is NOT copyright protectable. Generic photos do not have elements that are creative and original enough to be offered protection under the law.

If I received a settlement letter over any photo, I would probably want the letter and the photo in question looked at by an attorney in my area to determine, first, if there was a legitimate copyright claim and, second, to determine what the repercussions could be in not responding to the letter. I would not pay anything without this review.

There is little a company or an individual in Russia can do to enforce in the US a copyright infringement suit filed in Russia. The suit would need to be filed in the US and the photo would generally need to be federally registered with the US Copyright Office in order to make a suit financially feasible for most foreign copyright holders.* If not registered in a timely fashion (prior to publication), the copyright holder would be ineligible for statutory damages in the US and would be only eligible to collect any demonstrated profits made by the infringer or any demonstrable losses by the copyright holder. And this would only be after the foreign copyright holder can prove their work is copyrightable and they own the copyright in the work. Without federal registration, there is no presumption of ownership.

I am not fond of infringers and believe that copyright holders should be compensated fairly. I think you were smart to remove the photo from your website since you did not have permission from the photographer to use it. In your described situation, however, I have doubts about the existence of a copyright in the photo you used.




*federal registration of a work is required for US authors prior to filing suit in the US

 

[OHRoadwarrior]

XXXX.com appears to be located in the UK. Request from them proof of a US copyright on the picture.

 

[quincy]

XXX.com appears to be located in the UK. Request from them proof of a US copyright on the picture.

There does not need to be proof of a US copyright because the US recognizes the copyrights in foreign works (although, if the photo was taken by a Russian photographer or owned by a UK company, registration of the photo in the US would help support any infringement claim).

But, yes, proof that the photo is copyrighted and that XXX holds the copyright in the photo would certainly be a good start.

And I must change my previous doubt as to the copyright in the photo. It appears from the photos I viewed (and I had not visited the site prior to posting before) that most are professional, creative, artistic and original shots that would qualify for copyright protection (although a few of the leech photos might be considered too generic for protection).

 

[FlyingRon]

XXX.com appears to be located in the UK. Request from them proof of a US copyright on the picture.

US copyright is not required. The fact that both the UK and the US are signatories of the Berne convention means the UK copyright is the only one required and it is enforceable in all member states.

 

[quincy]

US copyright is not required. The fact that both the UK and the US are signatories of the Berne convention means the UK copyright is the only one required and it is enforceable in all member states.

Right. Unfortunately, the Berne Convention perhaps promises a foreign copyright holder more than it delivers. It is not the law. A copyright holder is still subject to the laws of the country where their work was infringed.

That means that, without the US registration of their work prior to infringement, a foreign copyright holder often finds that it is not worth the costs to pursue legal action in the US to enforce their rights.

Here is what Article 5 of the Berne Convention states:
(1) Authors shall enjoy, in respect of works for which they are protected under this Convention ... the rights which their respective laws do now and may hereafter grant to their nationals, as well as the rights specially granted by this Convention.
(2) The enjoyment and the exercise of these rights shall not be subject to any formality.

The "formality" that foreign copyright holders are not subject to in the US is the need to register their works in the US prior to filing suit. For US authors/artists, registration is a requirement prior to filing suit in the US.

But, without a US registered work, the foreign copyright holder is not eligible for statutory damages (from $750 up to $150,000 per infringed work) and is not entitled to attorney fees. Without provable injury, therefore (provable losses, provable profits by the infringer), the foreign copyright holder would be paying more to enforce their rights in their copyrighted works than they can hope to gain in the way of damages.

It is no different for US copyright holders hoping to enforce their rights in most other Berne Convention countries, either. While the copyrights in their works are recognized in other countries, the US copyright holder must sue under the other country's copyright laws and it is often not worth the expense to pursue their foreign infringers.

In other words, the Berne Convention is nice but it does not help a copyright holder who has experienced no demonstrable losses or whose infringer has made no or only minor profits as a result of the infringement. A copyright holder could perhaps expect the infringer to remove the infringed material from its location online and maybe a promise from the infringer not to infringe again. Compensation for the infringement would probably be a pleasant plus (even when compensation is deserved).

 

[FlyingRon]

I was responding to OHRW's statement that the party who was being infringed upon was obligated to show a US copyright.

Actually, it's adoption in the US *IS THE LAW*. The Berne Copyright Implementation Act specifically changed the LAW as in title 17 of the United States Code to bring the US in line with the terms of the treaty. You do not need US registration to bring a lawsuit in FEDERAL court for a work with foreign origin. You are correct that the lack of registration does keep you from obtaining US statutory damages.
However, that was NOT the subject of the thread up to the point you brought this up.

Yes, they have rights to their work.
Yes, they can demand royalties.
Yes, they can sue in federal court for actual damages.

Of course, will it be worth to do so given the likely meager damage award, is a different (non-legal) matter.

 

[quincy]

I was responding to OHRW's statement that the party who was being infringed upon was obligated to show a US copyright.

Actually, it's adoption in the US *IS THE LAW*. The Berne Copyright Implementation Act specifically changed the LAW as in title 17 of the United States Code to bring the US in line with the terms of the treaty. You do not need US registration to bring a lawsuit in FEDERAL court for a work with foreign origin. You are correct that the lack of registration does keep you from obtaining US statutory damages.
However, that was NOT the subject of the thread up to the point you brought this up.

Yes, they have rights to their work.
Yes, they can demand royalties.
Yes, they can sue in federal court for actual damages.

Of course, will it be worth to do so given the likely meager damage award, is a different (non-legal) matter.

Well, what the Berne Convention does is allows a copyright holder to enforce their rights under another country's copyright laws. Only those parts of the Convention that US Congress passed into law to conform US law to the Convention have effect in the US. The US did not adopt the Berne Convention with all of its provisions. The Berne Convention, in other words, is not the law in the US. Only what has been passed by the US Congress are the law.

Therefore, although a foreign copyright holder has their rights recognized in the US and they can sue and they can demand royalties or compensation without registering their works with the US Copyright Office, they do not have the same benefits under US law that a copyright holder has who has registered their works with the Copyright Office prior to infringement has under US copyright law.

You know, I think we are agreeing but might be saying things in different ways.

Whatever the case, I was aware your post was speaking to OHR's post. I was just expanding on it a bit, as I am wont to do in this section of the forum - much to the annoyance of others, I am sure (but I don't see myself stopping anytime soon).

 

[FlyingRon]

But they have MORE rights than a US author who doesn't register. They have the right to sue in Federal court, whereas you must register to get that ability if you're in the US.
Of course, the latter can be done anytime. Yes, to get the statutory damages you must have registered within 90 days of creation/publication regardless of what the country of origin is.

 

[quincy]

But they have MORE rights than a US author who doesn't register. ...

I guess it can be looked at it that way.

I am sending you a link via Private Message, FlyingRon. I would be interested in your opinion.

 

[gmilada]

you must have registered within 90 days of creation/publication

But they have MORE rights than a US author who doesn't register. They have the right to sue in Federal court, whereas you must register to get that ability if you're in the US.
Of course, the latter can be done anytime. Yes, to get the statutory damages you must have registered within 90 days of creation/publication regardless of what the country of origin is.

Hi, FlyingRon! Thanks a lot for your posts and information on my issue that I get with your help but I would like to specify: what does it mean "you must have registered within 90 days of creation/publication regardless of what the country of origin"
is. As I understood the foreign copyright holder to get the statutory damages must have registered within 90 days of creation/publication their photo( image in question) or within 90 days of finding the image in question on my website? Is this U.S. registration expensive for the foreign copyright holder? You wrote that "the lack of registration does keep you from obtaining US statutory damages" but where can I find information whether this firm has or does not have the U.S. registration for this image in question? I have found information on their website that this firm offers their service in the UK and in the U.S. as well. You can buy a license on their website to use their photo on your website. If they offer their service in the U.S. and I have received a letter by mail from WA( they have the LCS office in WA, USA),does it mean that they have the U.S. registration? I have found and got two lawyer consultations online last few days( sent them the letter from the firm and image in question, the copy of the website where I found this image in question, and they both advised me to negotiate the reward amount to lower it from $500 to $50-100. They answered me that I should begin negotiation from $25 and they wrote me that a lot of such cases now, and most people finally pay $50-100. But I don't know anything about this firm U.S. registration... I offered this firm $25 as a lawyer advised, but they require as minimum$350. If they don't have the U.S. registration, I can continue negotiation as an attorney advised but if not... Moreover, I don't have any profits from my website and their picture, and I have evidence of that. Excuse me, but what is your advice in this situation?

 

[quincy]

Hi, FlyingRon! Thanks a lot for your posts and information on my issue that I get with your help but I would like to specify: what does it mean "you must have registered within 90 days of creation/publication regardless of what the country of origin"
is. As I understood the foreign copyright holder to get the statutory damages must have registered within 90 days of creation/publication their photo( image in question) or within 90 days of finding the image in question on my website? Is this U.S. registration expensive for the foreign copyright holder? You wrote that "the lack of registration does keep you from obtaining US statutory damages" but where can I find information whether this firm has or does not have the U.S. registration for this image in question? I have found information on their website that this firm offers their service in the UK and in the U.S. as well. You can buy a license on their website to use their photo on your website. If they offer their service in the U.S. and I have received a letter by mail from WA( they have the LCS office in WA, USA),does it mean that they have the U.S. registration? I have found and got two lawyer consultations online last few days( sent them the letter from the firm and image in question, the copy of the website where I found this image in question, and they both advised me to negotiate the reward amount to lower it from $500 to $50-100. They answered me that I should begin negotiation from $25 and they wrote me that a lot of such cases now, and most people finally pay $50-100. But I don't know anything about this firm U.S. registration... I offered this firm $25 as a lawyer advised, but they require as minimum$350. If they don't have the U.S. registration, I can continue negotiation as an attorney advised but if not... Moreover, I don't have any profits from my website and their picture, and I have evidence of that. Excuse me, but what is your advice in this situation?

I am not FlyingRon, but I can answer your questions.

In order for a copyright holder to be eligible for statutory damages (the $750-$30,000 per infringement), the copyrighted work must be registered with the US Copyright Office before infringement or within three months of first publication of the copyrighted work. If not registered in a timely fashion, the copyright holder is limited to collecting actual damages and/or the infringer's profits.

Registration of a work costs only $35.

It is possible that the company has registered their stock photos in the US, in which case they are more likely to file a lawsuit. You can check with the copyright office (http://www.copyright.gov) to see if they have works registered.

Right now it appears that all they are asking for is their licensing fee. If they take you to court, the minimum they would be awarded is $200 (at the judge's discretion for innocent infringement) but it is more likely they would be awarded damages far greater than the $500 they are demanding - and their damages would probably include attorney's fees.

If you consulted with an attorney in your area, I would follow that attorney's advice, however I am surprised he suggested you offer to pay at this point - although trying to negotiate a settlement amount less than what they demanded is smart.


For FlyingRon - The point I was trying to make - if I even had a point - centered on the 1st Circuit Court decision in Harney v Sony Pictures Television. "Unoriginal elements of a visual work cannot be transformed into protectable subject matter." Here is a link to the case: http://caselaw.findlaw.com/us-1st-circuit/1619565.html

 

[gmilada]

That means that, without the US registration of their work prior to infringement...

Right. Unfortunately, the Berne Convention perhaps promises a foreign copyright holder more than it delivers. It is not the law. A copyright holder is still subject to the laws of the country where their work was infringed.

"That means that, without the US registration of their work prior to infringement, a foreign copyright holder often finds that it is not worth the costs to pursue legal action in the US to enforce their rights.


In other words, the Berne Convention is nice but it does not help a copyright holder who has experienced no demonstrable losses or whose infringer has made no or only minor profits as a result of the infringement. A copyright holder could perhaps expect the infringer to remove the infringed material from its location online and maybe a promise from the infringer not to infringe again. Compensation for the infringement would probably be a pleasant plus (even when compensation is deserved).

"
Hi, Quincy! Thanks a lot for your post and information that I gained thanks to your post. But I would like to ask where can I find information about the U.S. registration of the foreign work? As I understood they have to register their work in the U.S. prior to infringement? I removed a picture in question, and I will send them a promise not to infringe again. I like to take pictures and so, I have a good collection of my own good pictures. And I am ready to pay the compensation that it is affordable for me. But I did not have any profits from my website and this picture, and I am unemployed now. Excuse me, but may be you could advise me where can I find information about the U.S. registration for this image in question?

 

[quincy]

"
Hi, Quincy! Thanks a lot for your post and information that I gained thanks to your post. But I would like to ask where can I find information about the U.S. registration of the foreign work? As I understood they have to register their work in the U.S. prior to infringement? I removed a picture in question, and I will send them a promise not to infringe again. I like to take pictures and so, I have a good collection of my own good pictures. And I am ready to pay the compensation that it is affordable for me. But I did not have any profits from my website and this picture, and I am unemployed now. Excuse me, but may be you could advise me where can I find information about the U.S. registration for this image in question?

You can use the link I provided (http://copyright.gov/records/) and do a search of the Copyright Office database, using the company's name in the search field.

I would rely on your attorney's advice when it comes to negotiating a settlement. The fact that you removed the image is good and your promise not to infringe again is good. If you did not have profits, and the company's losses are limited to a single licensing fee, a negotiated settlement for less than the $500 seems feasible. It is possible that a court could award them only $200 anyway, if the judge sees you as an innocent infringer.

You want to make sure they actually have the rights to the image, first. The company should be able to provide you with this proof. They should also provide you with copyright registration information if they have registered the image with the US Copyright Office. If they have offices in the US and do substantial business in the US, the odds are pretty good they have registered their photos in the US.

As a note, I noticed that I mentioned the USPTO in some of my other posts. That was an error on my part based on a low-caffeine level in my blood. I need coffee. What I meant instead of the USPTO (which is the patent and trademark office) is the Copyright Office. I have now made corrections. Sorry for the earlier error.

 

[quincy]

I received your message, gmilada, and, as promised, here are the answers to your questions:

It is definitely possible that the photograph you used does not have its copyright registered in the US but, if the company owns the photo (that is, if the photographer signed over rights to the photo), the company would still be entitled to its license fees. It sounds as if it is the license fee that the company is trying to collect.

Stock photo companies often register groups of photographs together because of the large number of photos they license so the individual photos may not show up on a search.

The fact that you found the photograph on the internet in several locations does not mean that the photo is in the public domain. In fact, it probably isn't. The photograph would generally have to be an old photo or purposely placed in the public domain by its creator for it to be free for anyone to use.

That said, some photographs are considered too generic to have elements that can provide them with copyright protection enough to support a copyright infringement suit. If, for example, I were to run across a leech and take its picture, would my picture look the same or similar to another photograph of a leech? Is there anything creative or original enough about the leech photo to provide it with protection?

But all of this is really fact-dependent and, ultimately, up to a court to decide, so it is impossible for me to tell you if the leech photo you used could result in a copyright lawsuit that would be successful. The licensing issue is another matter.

Again, listen to the advice of your lawyer. He is the one with all of the facts. Good luck.