Copyright infringement letter
January 29, 2011 8:43 AM   Subscribe

Back in 2002 I reblogged a story from CNN on a personal, non-commercial blog. I included a photograph that came with the story. Today I received a nastygram (at my work address) from the photographer saying I violated his copyright, with an invoice for about $1600. I took down the photo immediately. Now what? I am in the U.S. and the photographer is in Germany, if that makes any difference.
posted by kmel to Law & Government (36 answers total) 2 users marked this as a favorite
IANAL but I have a really hard time figuring out how a German photographer is going to get $1600 from an American blogger after the blogger stopped using the picture on his web site and never made any money off of it in the first place.

The picture is down: now forget about it.
posted by dubitable at 8:50 AM on January 29, 2011

Start by visiting the Chilling Effects Clearinghouse.
posted by kuppajava at 8:53 AM on January 29, 2011 [1 favorite]

You might consider posting the text of the, uh, nastygram here for people to get a better idea. Is it a well-known photographer?

If you want to write a polite note to the dude in German, as in "okay, I acknowledge that it was a mistake, but I reblogged the article in its entirety without noticing this issue, took it down, thanks for notifying me, sorry, won't happen again", memail me. But English should be fine, even if he (apparently) only knows the rough variety.
Otherwise, block his address at your work account.

Other than that, ignore the invoice. If he's actually in Germany, his arm would need to be really long to get anything out of this.
posted by Namlit at 9:05 AM on January 29, 2011

If someone makes their living selling licenses to use their photographs they can be quick to complain. You used his work without payment and probably without credit. His location in Germany may not make much difference - amateur photographers in Europe have successfully claimed large sums from infringing companies in the USA.

But you've not profited from the use of the photograph, and although that may not change the legal fact that you have infringed his copyright it does make him seem rather heavy-handed. I would have expected a letter explaining the situation and asking you to either take down the photo or to pay, not an immediate invoice! And $1600 seems a lot. In other cases I've seen it tends to be about £300 (c. $500) and only demanded from businesses, not personal bloggers.

I'm not sure how the fair-use extract rules in the USA would apply here. If you repeated part of a CNN story, and the photo was in that part, is the photo allowable under fair use or is it a separate item?
posted by BinaryApe at 9:25 AM on January 29, 2011

Please ignore Namlit's advice. I am not a lawyer, nor will I advise you as to what you should do, but I am fairly certain that an admission of fault in writing is a spectacularly bad move should lawyers ever be involved.
posted by Ryvar at 9:34 AM on January 29, 2011 [15 favorites]

Don't do anything further, and block all contact from him. What he's doing is attempting to establish a relationship with you to extract more dollars down the road. The marginal cost to him to keep sending emails is effectively zero, so if you pay anything, he's won, and established a pattern where he'll send you another email asking for more money for some other vague infringement threat.

is the photo allowable under fair use

It all depends on the nature and scope of the use. IANAL, but my estimate would be yes, this is fair, because of the purpose and the non-commercial nature of the use.
posted by Cool Papa Bell at 9:40 AM on January 29, 2011 [1 favorite]

Probably too naïve over here. Sure. Part two of my advice then.
posted by Namlit at 9:43 AM on January 29, 2011

Response by poster: The photograph is of a diorama that was displayed in a museum, and the diorama was NOT created by the photographer. I don't know if that changes anything, but I suppose the photographer would have to prove that my little 72dpi image was his. They do look the same, though.
posted by kmel at 9:46 AM on January 29, 2011

Don't respond. Hell, it's difficult enough to collect from someone if you have an actual contract. In your case, there never was any contract, so how the hell did the photog arrive at $1600? There was no agreement between you and the photographer, and there likely was no fine print associated with the image when you used it that it would cost $1600 to do so.

So you refuse to pay (ie, you don't respond), and then what? He takes you to court. How? Where? The photographer has a lot more than $1600 worth of work cut out for him if he decides to sue.
posted by KokuRyu at 9:47 AM on January 29, 2011 [5 favorites]

Is the nastygram in the form of paper or email?
posted by rhizome at 9:47 AM on January 29, 2011

Response by poster: @rhizome, it was a letter. Sent to "Dr." kmel, but I'm not a doctor.

@KokuRyu he says that his union will sue me in German courts and that he doesn't have to pay anything up front. He is also claiming the photograph was on my homepage, and sent along a chart of what he charges for licensing to websites for homepages vs. internally for various time periods. This picture was deep in the archives, not on the home page, though of course it's a blog so it was on the home page at some point.
posted by kmel at 9:54 AM on January 29, 2011

You took it down. I think it's reasonable to wait to see if you hear anything further from a lawyer or the union.
posted by rhizome at 9:58 AM on January 29, 2011

Doesn't matter what resolution your version is. That doesn't make it a different enough photograph to matter. I'm doubting that you took a screenshot of the page and used that as your photograph.

It also doesn't matter that his photograph was of another artists piece of art. A photograph is a piece of art in itself. You don't know if he had permission to get the photograph of the diorama in the first place. But really, it doesn't matter. Very simplified, but at the worst for him (if he had a case against you) then you'd have to pay him for using his photograph and he'd have to pay the copyright holder of the piece in the photograph.

All of that being said, I'd just ignore the whole thing. I was going to say that anyway. But since you say it was sent to Dr. kmel and you're not a doctor I think that further solidifies the case that this is nothing more than a load of crap.
posted by theichibun at 9:58 AM on January 29, 2011

Might want to anonymize this, or remove the link to your website (which links to the blog) from your profile.
posted by arnicae at 10:01 AM on January 29, 2011

The more you describe this, the more it sounds like a scam. Remember, it costs nothing to take a screenshot of your site and email it to you.

The photograph is of a diorama that was displayed in a museum, and the diorama was NOT created by the photographer. I don't know if that changes anything

There's several layers here -- whether this was a public or private place; if private, whether the photog had permission to photograph where he was; the common copyright law that a photograph of a public thing is the copyright of the photographer as an expression of something in the public ...

... but those are moot points and discussing them only obscures the real issue at hand, and that's the fact that you got a wacky letter from a person in another country. Don't do anything. You've already pulled the photo down. Just put more distance between you and him.
posted by Cool Papa Bell at 10:03 AM on January 29, 2011 [1 favorite]

Response by poster: Further not-sure-this-matters, but I'm now realizing the photo was not from CNN, but from another site that I linked to in the post, which presented several images as having come from the museum in question, and did not provide any specific credits to the image in question. Either way, I believe my use was fair use, and you all seem to back that up, so I feel better.
posted by kmel at 11:27 AM on January 29, 2011

Honestly you don't even know if the letter came from the photographer at all. I may be off base here, but if a content producer was actually serious about this the letter would come through the office of a lawyer.
posted by edgeways at 11:29 AM on January 29, 2011 [1 favorite]

I used to blog for $$, and was fairly cavalier about using people's photos, until I got a cease and desist letter. it's not likely that your use was covered under Fair Use--noncommercial use isn't automatically protected, and your use may very well deflect the value of the original. The photog might be heavy handed but you're using his work for free. It doesn't matter what the content of the photo was. Would it be more likely that he's threatening that his agency,not his union, will sue? I'd ignore this, but go and sin no more.
posted by Ideefixe at 11:37 AM on January 29, 2011

Hey, I think this is a scam. I've read three blog accounts so far (at the politically problematic Goddamit I'm Mad and in the comments and also at a feminist blog whose name escapes me by people who have been getting nasty emails about a past image use from a German photographer demanding money. Even if it isn't a scam, the guy is clearly in it for what he can get and now that the photo is down I wouldn't worry about it. But I bet it's a scam.
posted by Frowner at 12:43 PM on January 29, 2011 [1 favorite]

Response by poster: @Frowner, if you can provide some more specific links so I can see if this is the same person, I'd be might appreciative.
posted by kmel at 12:56 PM on January 29, 2011

Response by poster: mighty, that is.
posted by kmel at 12:57 PM on January 29, 2011

Don't borrow trouble. If he does indeed sue you in German courts, then deal with it when you get official notification. Do not respond until then. I think he is just trying to see what he can get out of you.
posted by Sidhedevil at 12:57 PM on January 29, 2011 [1 favorite]

If he does sue you and win, his damages will almost certainly be set by statute. Don't take his word for it on what his potential damages are--he has no reason to lowball you and every reason to overstate.
posted by Sidhedevil at 12:59 PM on January 29, 2011

I think Frowner has a point here. Maybe this guy thinks he can capitalize on what he believes to be the "typical" US citizen's fear of being sued. I'd put it all on a neat little pile and wait if anything happens.
posted by Namlit at 1:17 PM on January 29, 2011

Here is the Goddamit one (note that I do not endorse everything that this blogger writes about!--but you could probably email her and ask her about it.)

Finally, there is the matter of a strange German man who has sent me an extremely nasty and ominous letter about posting one of “his” images, and then warning me that he’s going to give me a lesson in “RESPECT.”

In the comments on that post, a blogger from a blog called My Friend's House says she's been having "all kinds of argy-bargy" with a German photographer who sent her a nasty email.

I'm afraid I can't find the third one. But I just can't believe that--even if this guy is for real and is really German, etc--he's actually going to pursue tons and tons of legal actions against random bloggers. Good luck!
posted by Frowner at 1:22 PM on January 29, 2011

Oh, to clarify, the My Friend's House blogger hasn't blogged about the situation; she's just talked about it in the comments on the first blog.

This says "fraud" all over it to me. If there are three of you with the emails, there are probably a hundred, and he's not going to sue a hundred.
posted by Frowner at 1:24 PM on January 29, 2011

Response by poster: @Frowner, thanks ... mine came in the form of a registered letter, so I'm thinking it's a different person than this emailer, but we'll see.
posted by kmel at 1:38 PM on January 29, 2011

Response by poster: Here's another puzzler -- my home address is listed if you do a whois search on the domain in question, yet this person sent the letter to my work, which they must have found by just googling my name.
posted by kmel at 2:06 PM on January 29, 2011

That last bit REALLY makes me think 'scam'. If he didn't use the domain's registered email, snailmail, or whatever else address, that smells like a setup to me. Nthing everyone else ... just ignore his ass.
posted by Heretical at 6:50 PM on January 29, 2011

Response by poster: I contacted the owner of the website from which I originally took the photo, and it turns out that person has also recently received an invoice and threat of further legal action from the photographer as well. I do think we are hearing from the photographer himself (I don't think it's a scammer, i.e. some random person who has nothing to do with the original photograph), I just don't think his demands are reasonable.
posted by kmel at 7:25 AM on January 30, 2011

You used someone's work without permission. Why wouldn't s/he ask for compensation?

Had you (and the source you stole it from, which apparently also stole it) contacted the photographer for permission, s/he would have done one of three things: 1. said no, 2. said yes (for no fee), or 3. said yes for a fee.

By stealing the image, you took the first two options off the table. I don't know the vagaries of international copyright law, but the photographer definitely has a case.

Why do people think photos/artwork/music/movies/etc. have no value just because they're online? If you want to use someone's work, ask.
posted by notclosed at 8:51 AM on January 30, 2011 [2 favorites]

Why do people think photos/artwork/music/movies/etc. have no value just because they're online?

If the OP thought the photo had "no value," they wouldn't have felt compelled to take it down.
posted by rhizome at 9:01 AM on January 30, 2011

Response by poster: @notclosed, of course I know works posted online have value. I think it can be argued that this is a case of fair use, but I'm willing to face the music if I'm wrong.

But would you wire $1600 to a stranger in another country just because he sent you a registered letter demanding you to do so?
posted by kmel at 10:29 AM on January 30, 2011

Fair Use has several conditions you have to meet, in order to use something w/o regard to copyright. Without seeing your post, I doubt that anyone could ascertain if your use qualifies.

”for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright”

Blog post on topic from photo editor.
posted by Ideefixe at 8:29 PM on January 30, 2011

Response by poster: @Ideefixe the post was basically, "CNN reports X museum is closing. Site Y has more info about the museum," only a little more gushing about how awesome the museum is and how this was sad news. The image was originally on site Y.
posted by kmel at 6:47 AM on January 31, 2011

Hi there,
I'm emailing from the UK. I know of about 6 people 'invoiced' in this way in the UK and I know about 3 in the US. In the UK all but one has paid.
Basically we're under EU law and here there is no fair use defence and it's a little easier for him to chase people in the UK. He is invoicing for use of his image which is totally legal ( can you argue a fair use defence when he is pursuing you in Germany? How does this work with the emergence of the internet?).
Generally in the UK, although we have the same rules as Germany, if copyright is infringed on a non commercial site you would be sent a 'cease and desist' letter. It's a shock when someone comes along and applies the law in such a harsh manner. Whats more in the UK he would have to show proof that he has a record of selling these images at this price. In all likelihood he only 'sells' them in this way BUT he uses price lists published by a photographic society/union who advise in legal cases to validate his prices. They charge by the month and charge English speaking websites twice that charged by German sites. I wonder whether this can be challenged.
I have seen legal advice which says either negotiate to reduce the fee or pay. The police in the UK have been contacted by two people because of intimidating emails. In one case an 'invoice' was faxed to the school believed to be that attended by someone involved in this. The police believe that this may well be a scam. At the end of this I believe it's a bit of both.
This guy's images are all over the place. They're easy to trace and he only has to find a name and address and he can wait to see who pays.

As far as I know no one in the US has has paid. I hope you're far enough away. Also I think it will be interesting to see if he really does pursue the one person in the UK left without paying. So far he has moved the deadline and asked for less. Sounds a bit like back peddling.

I would like to think that there is something that can be done.
posted by styler at 1:40 AM on February 22, 2011 [1 favorite]

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