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Guy Sued For $4,000. Over Using $10. Pic, Sans Permission

Discussion in 'BlackHat Lounge' started by The Scarlet Pimp, Feb 15, 2011.

  1. The Scarlet Pimp

    The Scarlet Pimp Jr. VIP Jr. VIP Premium Member

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    let this be a lesson to those who grab images... :eek:


    Why would copywriters at Webcopyplus pay $4,000 for a digital photo that retails for about $10? Well, frankly, we screwed up. It?s an expensive lesson on copyright laws that we wish to share with other marketers, so you don?t make the same mistake.

    Our web copywriters were under the impression that images on the Web without any copyright notices were ?public domain? and therefore free to use.

    Naive? Yes.

    A notion limited to our copywriting firm? Definitely not.

    It likely has to do with the fact that works no longer need a copyright notice to have copyright protection (you can read about the Berne Convention Implementation Act, which the US adopted in 1988).

    Designers, writers, developers, marketers, business owners, and ironically even photographers, use photos from the Web without permission. Sites like Google make it so convenient. Enter your keywords, do an image search, and you?ve got an endless photo library ripe for the picking.

    Woman laughing delivers 5.2 million photos. Business man offers 423 million photos. And the keyword kids brings up a whopping 778 million images. You can find pretty well anything, too, from ABBA to zombies.

    The Copyright Crime

    While we maintained an active stock photo account for our blog with access to an array of suitable photos, one of our copywriters grabbed a photo from the Web. The image: a colour 400 x 300 pixel beach shot with some greenery in the foreground. A nice shot, but nothing spectacular.

    We posted it on a client?s tourism blog to add zest to a promotional article ? done. Sip some caffeine, get a little Twitter action, and then dive into the next copywriting project. Photo forgotten. That was in May, 2010.

    The Lawyer?s Letter

    Fast forward a few months, we got a call from the client a couple of days before Christmas, and he wasn?t feeling overly festive. He received a formal letter from a lawyer with the following introduction: ?Cease and desist demand and offer to settle copyright infringement claim, and digital millennium copyright act claim, subject to Rule 408, Federal Rules of Evidence.?

    Apparently copyright infringement involving images that are registered with the U.S. Copyright Office allows for statutory damages of up to $30,000, or $150,000. if it can be demonstrated it was a willful act.

    The Lawyer?s Demands:

    1. Immediately cease and desist all unlicensed uses of the image, and delete all copies from computers and digital storage devices.

    2. Remit almost $4,000. to his trust account.

    The image was removed within minutes. Lengthy discussions ensued. Two days later, a letter of apology was emailed to the lawyer to advise the photo had been immediately removed, and to express regret for the ?unintentional errant use? of the image.

    The lawyer responded that while they appreciated our commitment to remove the image from the blog, ?removal of the image from the website will not relieve you from liability for damages arising from your past infringing use of the image on your commercial website.?

    The letter also stated that any further attorneys? fees and costs incurred to resolve the matter would be added to the settlement demand.
    The Defendant?s Response

    With some pro bono legal advice, a copy of the Certificate of Registration and the date that the image was first published was requested. While the letter contained all sorts of legal jargon, it failed to verify the image was copyright registered and that the lawyer?s client, a photographer, owned the rights to the image.

    A few notes were exchanged, and by entering a registration number at the U.S. Copyright Office?s website (www.copyright.gov), we were able to confirm the image was copyright registered and the lawyer?s client was the rightful owner.

    Shortly after, we provided a counter offer of $1,925, which we figured would provide the photographer about $100 per month, and the lawyer three-hours? pay at a lofty $400 per hour. We felt that was generous and more than fair to make this problem go away.

    They declined, and due to the exchange of letters (while respectful in nature and completely reasonable, considering we were merely asking for registration and ownership proof), the lawyer slapped on an extra $2,500 in attorney fees, which he subsequently agreed to remove.

    The Dilemma

    Had the lawyer engaged Webcopyplus, in which case our client wouldn?t be caught in the middle, we would have had options: ignore the letter; say, ?Go ahead, sue us?; or respond, ?$1,925 is our final offer,? which there?s a chance they?d accept. We felt ? and photographers we spoke to agreed ? the proposed settlement amount was excessive.

    In fact, you can find articles and discussions online on how lawyers around the globe are capitalizing in technologies and laws to bring in piles of claims for copyright infringement damages. For example, check out Copyright Lawsuits as a Business Model.

    The Decision

    While we considered the lawyer?s demands abusive, the fact remained that our client was trapped in the ordeal, and it was costing him time and causing him grief. Plus, he?d be the one to get subpoenaed. So we opted to settle for $4,000.

    It was a tough pill to swallow, but we were the ones who messed up, and salvaging the client relationship was priority. Moreover, settling the matter would allow us to focus on writing copy to market and sell products and services, and build productive relationships, rather than deal with an aggressive lawyer.
    Lesson Learned

    As web copywriters, we work with dozens of web designers around the globe. Based on recent discussions, even after we shared our story, some continue to suggest copyright laws are blurry, and insist if you ever run into conflict and get a threatening letter, you can simply delete the image and toss the document in the trash (one designer even labeled it ?delete and toss?).

    While this might work with some individuals and organizations, particularly if they?re in a different province, state or country, which might make legal costs prohibitive, be aware: you could end up in a lengthy and costly court battle.

    For those who insist, ?It won?t happen to me,? mind the fact that this beach photo was the only one we?ve ever grabbed from the Web for a client?s website. And it cost us almost $4,000.

    Consequently, we urge others to recognize and yield to a simple fact: If it?s on the Internet and others wrote or created it, do not use it without their permission.

    As copywriters, we work with and rely on a range of creative types and specialists, including photographers. We didn?t mean any disregard for this profession and now have a greater awareness and appreciation for the fact that freely using photos from the Web diminishes a photographer?s income and livelihood. We apologize, and it won?t happen again.

    Copyright Resources

    We?re copywriters ? not copyrighters ? so this is meant to share our experience, not to provide formal legal advice. However, there?s a lot of useful copyright information on the Internet, which you can check out.

    Fair Use ? If you?re using copyrighted work for teaching or research, criticism or comment, or news reporting, it may be considered fair use.

    Berne Convention Implementation Act of 1988 ? The US adopted the Berne Convention for the Protection of Literary and Artistic Works, an international agreement governing copyright that was initially established in Berne, Switzerland in 1886.

    10 Big Myths About Copyright Explained ? Techie and photographer Brad Templeton touches on common copyright myths.

    Free and Commercial Stock Photography Sources

    As part of our updated policies, our copywriters are required to only use stock photo websites in a bid to play by the rules, be fair to photographers, and keep lawyers out of the equation.

    Here?s a list of stock photo sources you might want to consider, where you can get photos starting at $1 per image:

    Read Entire Article:
    http://blog.webcopyplus.com/2011/02/14/legal-lesson-learned-copywriter-pays-4000-for-10-photo/
     
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  2. Monrox

    Monrox Power Member

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    How can it be proven that after removing an image it was used at all? Logs are just text files, there is not tamper protection. Same with screenshots.
     
  3. plex_brahial

    plex_brahial Regular Member

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    Screenshots with date on them
     
  4. Maruk

    Maruk Power Member

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    Wayback machine, google cache and so on..

    I am more interested in regulations applying to international usage of images.
    Let's say I am based in the Netherlands and I am using dutch hosting and I am hotlinking directly to an image instead of hosting it on my server.
    I don't see how US based firms, claims, or C&D letters can touch me.
     
  5. dragonlube

    dragonlube Regular Member

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    What an ass, go on the lawyer's website, Im sure you will find some pictures that are "copywrited" and his webmaster didn't have permission either. OOoo these kind of people piss me off.
     
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  6. plex_brahial

    plex_brahial Regular Member

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    Take before the image was taken down.
    To the op: Im sorry for this mess you got in, purely bad luck but I must say that I could only think about how mych money can be made by using methods like this: rank pictures well, register them, use them as bait- anybody who use them- 2000$ or law suit
     
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  7. cnick79

    cnick79 Jr. VIP Jr. VIP

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    Plus Google cache plus internet archivers like thewaybackmachine, might get you too?
     
  8. portalweb

    portalweb Supreme Member Premium Member

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    The Scarlet Pimp,
    I always love your posts. Unfortunately, I am unable to give you any more rep+ due to BHW limitations as I already did for you earlier.

    Keep them coming. :rock:
     
  9. qesire

    qesire Newbie

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    Hello,
    I would make sure that it is a real law firm as this could be a scam to use.
     
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  10. maxmed

    maxmed Registered Member

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    loool 4000 $ for a simple picure :eek:
     
  11. Monrox

    Monrox Power Member

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    An easy way to show this is not reliable is setting the PC clock back and take the screenshot. Another is to change the file attributes. A third is to fire up PhotoShop.

    These can be stopped by using
    Code:
    <meta name="robots" content="noarchive">
    I still don't know a way to undoubtedly prove the image was used at all.
     
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  12. redstone.1337

    redstone.1337 BANNED BANNED Jr. VIP Premium Member

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    Damn, so now we have to get a torch and find out the owner of the image, take him to a tea discussion, tell him what you intend to use the image for, convince him, make legal documents stating that he permitted you to use his image and then keep tons of such papers in case the image owner goes insane some day and decides to screw you. :eek: Isn't this too much?
     
  13. florflor

    florflor Senior Member

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    yeah thank god I don't live in America. Seems like you gotta be lucky to live a lifetime there without being sued by some asshole. They love litigation there.

    Hotlinking, yeah how can it be touched. Say you put all your stuff on tinypic, what can they do?
     
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  14. tankr

    tankr Junior Member

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    I had the same kind of letter about 6 months ago. Fortunately, it was a site I had built by an ad company. The site was 7 years old. The law firm was in Florida and apparently makes a living doing this crap. Pretty cheesy outfit, the lawyer couldn't respond for two weeks cause he was on vacation. Must be a big outfit huh?

    First thing I did was contact the ad company and get them involved. They were having a hard time coming up with the proof but they had the high res copies of the pics used on the site which they said they wouldn't have if they hadn't purchased it.

    Eventually, I told the lawyer to provide me proof that his client owned the copyright at the time the site was created or to C&D. Never heard from him again.

    A claim of damages is bogus. They would have to prove that they were harmed by the unauthorized use of the photo. Unauthorized use of a photo does not normally create damages or harm to anyone. If your selling the photo though, they probably have a claim.

    Also, change the file name when you get a pic on the web. Your chances of getting caught go way, way down, especially if you do not use keywords for the photo file name. It'll be lost in the billions of photos on the web.
     
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  15. The Scarlet Pimp

    The Scarlet Pimp Jr. VIP Jr. VIP Premium Member

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    create still more laws...:cool:
     
  16. cecle

    cecle Regular Member

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    Wow this sucks big time, thanks for the information.
     
  17. topsytips

    topsytips Regular Member

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    So, I take it that paying for privacy on your domain is next to useless in this situation??

    I have no problems with photographers and graphic designers earning a living but it's certainly an abuse of the US legal system in my humble opinion.

    Also, as Tankr has demonstrated, even when you have purchased the copyright, you would need to keep records of this ad infinitum! It seems that you risk being targeted by these law firms even when you have paid and legitimately used copyrighted images!

    In reality, it is difficult to know when a photo has not been paid for as they are copied and spread on the web so prolifically.

    I also found this info on a UK website which seems to suggest that if you downloaded an image to your pc (the INFRINGEMENT) then it would be the jurisdiction of that country which would apply, if even your web host was based in the USA or the pic originated from the US.

    It also doesn't appear to be that easy to search for registered images on the copyright site unless you know the registration number.
     
  18. M1ndfluX

    M1ndfluX Senior Member

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    Holy shit dude, thats messed up! 4k?
     
  19. jimbobo2779

    jimbobo2779 Jr. VIP Jr. VIP Premium Member

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    Virtually same thing happened to me last year. The ordeal started in August but didn't get sorted until late November.

    Basically I had a website that was an advertising portal with over 5k adverts with the ability for anyone to add any advert they wanted. Luckily because of this fact I managed to barter my way down from £7500 to £100 as the image was "uploaded by a user".

    The woman trying to sue me claimed the image had been up for 4.3 years, even after I had proven my domain was first registered only 3 years prior. She provided no proof of ownership whatsoever, could not show any evidence of past image sales to back up her valuation, no copyright notification.

    All the while she insisted that in these cases the courts WILL (not might or could but will) double the value of the image for use without permission and then add half again on top of the doubled figure because there was no mention of the origin of the image.

    She was basically talking out of her ass all along and luckily she was incredibly unprofessional, used menacing language with the intention to frighten me into submission and blatantly lied on numerous occassions. I stayed calm the whole time and told nothing but the proof, I refused to mention how long the image was up and proved using the wayback machine that it could not have been online even 2years.

    In the end she gave me a last chance to settle for £2500 and said if you do not accept I will take this matter to the courts, insistent I would have to travel to Scotland to be tried ( I am in England). I explained one last time that with HER valuation of the image and my proof that it was not up as long as she insists (without any proof now) that a court could not offer her more than £2200 and that she offered me no reason to settle out of court. I further explained the valuation she gave was wrong, I could not be tried for criminal charges in Scotland and that an English court would be unlikely to even see the case.

    I got an email saying as I had shown no reasonable attempt to keep the case from the courts she had no choice but to take it to the small claims court and she would not respond to any further correspondance. I then offered her £100 up from my initial £75 offer and explained why, no response for a week or two.

    She emailed back accepting the £100, I made her jump through a couple of hoops but eventually sent her the money.

    Through the whole ordeal I kept professional and was totally honest, where provable. Not once did I lose my cool but I intentionally kept the lines of communication open to get more proof that she was being unreasonable and using menacing language (which really hurts small claims in the UK).

    If I had to give advice it would be to not let it get you down and to fight it, there was evidence that she was a close friend of someone that made a living off this sort of thing, he got awarded thousands on multiple occassions for single images but eventually got cases thrown out and was branded as running a honey-trap operation which was setup purely to sue people like this. He is now on trial for benefit fraud and is seen for the scumbag he actually is.

    After something like this, even though you are the "copyright thief" (accused) you realise that the person threatening you must be a real nasty piece of work.

    Do your homework and keep yourself protected and generally just use your own stuff, its a lot simpler in the long run. It only cost me £100 but I spent hundreds on good legal advice and countless days mostly out of principle than anything, luckily I am in a position where I can do that, lots of people are not.
     
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  20. topsytips

    topsytips Regular Member

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    OMG...it's happening here in the UK too!! :eek:

    Very convenient that the lady found a a site owner, who had allegedly infringed her copyright, in the UK also!! It is possible to register works here too so you could have asked her for her registration details I guess.

    In your case, as the image was uploaded by a user, if that user's IP was based outside of the UK, then you should, in theory at least, have been able to argue that the court did not have jurisdiction.

    It really sounds like a professional scam and eventually, the justice system does catch up with them, just as you have indicated.