Forum Moderators: not2easy
This may seem a bit stupid to some of you, because I'm on the receiving end of a complaint / demand, and you may say "Your own fault...etc..etc...", but this is the question:
I receive a letter from a major corporate law firm stating that I have infringed the copyright of one of their clients images on my website
(their 'client' is a large, well known, image library).
It basically states that I can pay several thousand pounds within 14 days, or else they will begin proceedings, and I will could have to pay many more thousands of pounds in costs once they instigate proceedings, etc.....
The image in question is a tiny thumbnail (I can't honestly remember where this came from - from memory, the type of CD given away with computer magazines, the type of which include 'free clipart' and 'free web templates'), and to be honest, this is an utterly trivial part of this site. So trivial that this never crossed my mind...
This is a bit of a shock, as I generate my own content on my own sites, and all other images have been created from scratch - this obviously slipped 'through the net' at some point, which I accept is a lack of oversight on my part, and my own stupid fault.
OK, if this is copyrighted, I should remove it - which I did straight away. But the letter I received contained several paragraphs, basically offering a retrospective licence, and stating that even if I was ignorant of the copyright, got the image through a third party, I still need to pay anyway, because I have had use of it, etc....
After sitting on this letter for a couple of hours, it kind of smacked of school playground bully tactics.
The options are A) Pay a ridiculous sum or B) ignore the letter, and risk paying an even more ridiculous sum, probably a five figure sum.
The fact is that I have made no money from the inadvertant use of their images, so this seems to me like a bit of a 'fishing expedition'.
However, the letter goes on to state that they "will not enter into
negotiation" because this is their minimum charge.
Basically, what they are demanding seems ridiculous in context to the nature of the 'crime'. Although I suspect that a significant part of this
payment could be probably the lawyers costs anyway....
So... their letter precludes any settlement...but this strikes me as crazy, as most people involved in litigation are prepared to settle at some point or another....
At no point was I contacted and asked to remove the content - I was just hit with a huge demand.
You can probably guess the company in question from the description.
Any sensible suggestions? Settle it, learn an expensive lesson, and move on? Counter-attack.
I'm not against making a reasonable settlement, but the demand is so large that it almost seems like extortion.
I'm not looking for sympathy - just facts - surely this must have happened to others at some point.
Rgds
Sentinel.
I would take this letter to a lawyer, have him look it over and if deemed necessary have him contact the sender.
It seems to me to be more a scam than a genuine request for compensation.
Having a look on the image library site, similar images can be licenced 'royalty free' for about £70. The letter I received stated that I have to pay the money to the lawyers, so I suspect that have simply loaded their expensive charges on top of the real licencing costs.
Apparently the said company uses litigation as a normal business process to generate a significant part of their income, and use major international law firms, so I'm going to have to think this through very carefully.
But at the end of the day, how on earth can you value a thumbnail at several thousand pounds?
If it's really only one image, and their usual fee is 70 pounds, AND you could show that your use of it was inadvertent and not part of a pattern of appropriation of copyrighted images, then I can't imagine any court ever assessing that much in damages.
But I am not a lawyer. I would definitely talk to a lawyer as soon as possible....
When I refer to 'images', this was just one image, but because the site is templated, this thumbnail was repeated accross multiple pages (probably 30 or so)...
Now, I tracked this down and priced it properly. It is 'rights managed', so they charge different prices for different uses, and when I chose the appropriate options (i.e. corporate site, use accross multiple pages, thumbnail) this was priced at c. £800 - yet I get a demand for almost 4 times this amount...
Remove the image, and make sure you DO NOT aknowledge or reply to the email in any way. They cannot claim you ignored the letter if they have no proof you read it.
BUT I am not a lawyer, and neither is Nick (I believe), so again, talk to a lawer.
Re your calculation that the fee you would have been liable for under their terms was about 800 pounds, and the demand is about 4 times that--that suggests to me that they have based their calculation directly on the statutory damages rule, which is that if the material infringed is copyrighted with the CO, as I assume this is, then the copyright holder gets triple damages added on to the actual damages.
[edit] I just went and checked the law (Google "Copyright Office Statutory Damages") and the triple damages thing isn't mentioned in there. Not sure where I got it. Maybe it's a rule-of-thumb used by judges but not in the actual law. But in any case they are definitely entitled to damages. How much, I don't know. [end edit]
So, talk to a lawyer! I think it's very possible that they would settle for less since there ARE costs involved in going to court. Your goal is to reduce the amount you have to pay for your mistake, and you'll need a lawyer to help you do that.
Good luck, and please do report back. There's a lesson in this for anyone using images on their sites to be very, very careful about sourcing.
Seems like a scam.
Copyright holders are under no obligation to send cease and desist letters first--they can ask for a settlement from the get-go.
Sentinel does need to confirm that this law firm is acting at the behest of the copyright holder. In all likelihood they are.
Most of all, he needs to talk to a lawyer, instead of listening to our comments....
First, are you sure they own the thumbnail and/or original image?
Second, does the license they offer mean for the thumbnail or the original image?
Third, does a license from their website cover prior use?
Fourth, what would they recover if they sued and were successful? What if you made an offer that they refused and recovered less than that?
Answering these questions might require a lawyer, but it shouldn't take the right lawyer much time to sort out.
