Legal Articles

Top Bogus Excuses People Use When They Steal Photos from the Internet

So you think you have a good reason or excuse to use a photo you found on the Internet without asking the photographer who took it? Let’s see if it can stand the test.

1. There was no “copyright” logo or any other watermark on the photo

Copyrights exist by default. As soon as an amateur or professional photographer (or anyone else, for that matter) hits the shutter button, all the power of the copyright law is now associated with the photo. Therefore, a photographer does not have to specify on the photo or on his/her website that the photo is protected by copyright. Unless specified otherwise, consider a photo to be copyrighted.

2. The photo is on the Internet, therefore it is free to use!

Is a photo easy to copy when it’s on the Internet? Yes. Does a photo lose its copyright status when it’s uploaded on the Internet? No.

A photo does not magically fall into the public domain when it’s uploaded to the Internet. The photographer keeps his/her copyright and, depending of the country, his/her photo will remain copyrighted between 50 to 70 years after his/her death. Only after that will it fall on the public domain.

3. I found it on Google Images, therefore it is free to use

Google Images is not a free stock photo agency. Google does not own any of the photos showed as a result of your search. Google’s job is to find images that fit your search query. Other people or companies own the photos and the copyrights.

4. It’s on Facebook, and everything on Facebook is on public domain

Contrary to popular belief, a photographer does not lose his/her copyright when a photo is uploaded on Facebook. Facebook’s Term of Service says:

You own all of the content and information you post on Facebook

So can you share a photo posted on Facebook? Usually, but under certain conditions. Facebook Term of Service says:

you can control how [your photo] is shared through your privacy and application settings.

That means a photo on Facebook can be shared by another user only by using the “share” button and only if the photographer allows it from his/her privacy setting. You cannot save it on your computer and use it anywhere else on Facebook or the Internet.

5. But I won’t make money off this photo! It’s just for blog/site/Facebook/etc.

Whether or not you make money from the use does not change a thing. It is still copyright infringement (unless it’s fair use). Here in Canada, Copyright law states that statutory damages will be between $100 and $5,000 per photo if used in a non-commercial purpose (it would be $500 to $20,000 per photo if used commercially). You think you will never get sued for using a photo on a non-commercial website? Think again. It is unlikely, but it IS possible.

6. There was the photographer’s logo/name/email watermarked on the photo. If he/she put it there, it was so he/she can advertise his/her business when we share his/her photo, right?

No. Just… No…

7. The photo was not nice or original enough to be protected by the copyright law

Photograph a white paper sheet on a white table during a snow storm with your iPhone. This photo will be just as protected by copyright law as the last celebrity portrait of Annie Leibovitz shot with $200,000 of equipment.

8. I appear in this photo, therefore I can use it!

This seems logical, but no. Legally, the photographer has the copyright on this photo because he/she took it. The photograph is that photographer’s artistic interpretation of you.

So if you were photographed when you were part of a protest, a sport event or if you were the subject of his/her street photography, you need to ask the photographer first before using it.

Of course, if you hired a photographer to do, for instance, your business portrait, he/she likely gave you the license to use it. However, the photographer keeps the copyright.

9. I wrote the photographer’s name under the photo on my webpage. It’s good advertising for him!

In 7 years of doing photography professionally, never has someone called to hire me, stating that he/she saw my name under a random photo he/she stumbled onto on the Internet.

Copyright law includes the notion of “monopoly of economic exploitation” of a photo. Only the owner of the copyright can decide how the photo will be used. Doing “advertisement” for the photographer is neither a valid nor legal reason to use a photo without first asking the photographer. Especially since it is legally mandatory in most countries to put a photo credit under a photo, even when you pay for the license to use it.

10. Millions of people are doing it!

This argument is invalid. Unless of course you can point me out the article of law that tells exactly how many people doing something illegal it takes to make that act legal.

All of that being said… Is it possible to police the web and stop every copyright infringement? No. It is technologically impossible to stop someone from lifting your photos, and I would need three lives to sue every infringer of my images.

Let’s put it this way: if you see an unattended bike in a park, would you decide not to steal it because you fear of getting caught, or because you know it is morally wrong? If it’s the former, I can’t help you. If it’s the later, maybe this post will change your perceptions of how “we” should use photos on the Internet.

By the photojournalist Francis Vachon

Legal Articles

Questions About Writing Cease and Desist Letter for Copyright Infringement

A cease and desist letter is a legal notice sent to someone you believe is infringing on copyrights you own the rights to. The letter is your way of stopping them.

There are three main elements that should be clearly stated in every cease and desist notification:

  • Your rights stating that you own the materials
  • That the user is violating your rights
  • That the user must stop doing something (specific) immediately (e.g., remove an image or photo from a website that you have the rights to

Sometimes cease and desist letters contain additional instructions, or demands, such as a demand for compensation—referred to as a settlement demand letter—or a formal request for proper attribution to correct the violation.

It is important to note that just because you make a demand, your letter does not establish that you have a right to compensation or even that your claim to have exclusive rights to something is valid. Those are legal issues that may need to be settled in court—specifically in a civil lawsuit if you can’t work it out on your own with the business or individual that’s infringing upon your rights.

Do I Have to Send a Letter, or Can I Just Sue Them?

You do not have to send a cease and desist letter prior to filing a civil claim against someone. However, if you are planning to sue someone on your own, doing so without first consulting with an attorney is not a sound option because you lack the legal know-how.

If your claim is small, chances are you can work things out without going to court. That recourse allows both parties to settle a dispute without bearing the expenses of lawyers and court fees.

If you do go straight to court, make sure you are prepared to explain why you didn’t choose to try and work things out with a cease and desist letter. If a defendant can show they were unaware they were violating copyright laws, you may be awarded less in damages. However, if you can show that you notified the defendant with a cease and desist letter and they continued to violate copyrights laws, your damages award could increase if you win the lawsuit.

Can I Write a Cease and Desist Letter, or Must I Hire an Attorney?

The short answer is no, you do not need to hire an attorney. Anyone (whether the complaint is well-founded or not) can send out a cease and desist letter. However, there are reasons why you may want an attorney who specializes in copyright laws at least review your letter before sending it out.

Benefits of Having an Attorney Send a Cease and Desist Letter
Civil claims can be complicated, expensive, and drawn-out (often taking years to be resolved). Even if you get a verdict in your favor, the defendant may file an appeal and further extend the legal process. If you have a good copyright infringement case, an attorney will most likely handle your case free of charge—meaning, they will take it on a contingency fee basis. In that case, you only pay the attorney if she wins a verdict or obtains a settlement for you.

An attorney can also advise you if your rights have, in reality, been violated and if so, if you have enough grounds for legal action.

Also, an attorney can tell you if a cease and desist letter is the appropriate course of action, and can even write the letter for you.

In almost all cases involving consumers, a letter from an attorney will be taken more seriously than a letter from an individual.

Legal Articles

Five Common Copyright Misconceptions Held by Photographers

The most recent version of the Copyright Law of the United States (December 2016) weighs in at a whopping 354 pages. And while there are areas of ambiguity, the basics and benefits of copyright registration for photographers are well-documented. Unfortunately, well-documented doesn’t mean well-understood, so we asked attorney (and former photo rep) Leslie Burns to weigh in on a number of common copyright misconceptions that still persist, and why you should register your copyright.

#1. If I publish a photo without registering my copyright first, I can’t sue for damages.

U.S. Copyright Law has two forms of damages: 1) actual, and 2) statutory.

The moment you take a photo, (unless you are an employee or signed a terrible work-for-hire deal) you own the copyright and have some protection. But without registration, you are only eligible for actual damages which means the “market value” of the image’s license, plus the defendant’s profits directly connected to the infringement, if any. If someone uses your image on their Instagram account, the actual damages might be so low as to make it impractical to sue.

The main benefit of registering your images is the ability to sue for statutory damages. If a person or organization willfully infringes your photo, you can sue for up to $150,000 per infringement image. Non-willful has a maximum of $30,000. You might get attorneys’ fees, too.

“Publication in copyright law,” says Burns, “is not what most people think. Online use may or may not be published—if you offer the work for others to license or use or if you provide it to a client for its use, then it is published; but if you just display the work online (or in a gallery) it probably is not published.”

If it is published, then you have up to 3 calendar months to register the copyright and it is as if you registered it on the date you first published the work, so any infringement after that can get the statutory damages. If you wait, then only infringements that start after you register the copyright can get the statutory damages and attorneys’ fees. For unpublished work, only infringements that start after registration can get statutory damages and attorneys’ fees.

#2. Newsworthy content can be used without compensation under the fair use doctrine.

Burns says newsworthiness “is not a ‘get out of jail free’ card for infringers, but it can be part of one of the four factors for Fair Use. Still, it’s generally a loser for the infringer.”

In Fitzgerald v. CBS Broadcasting, Inc., 491 F. Supp. 2d 177, 189 (D. Mass. 2007), the court stated, “If news and entertainment media could use a photographer’s work without payment, then no news or entertainment media would license any photographs from photographers, thereby drying up the source for such photographs.”

#3. Mailing yourself a letter with your content protects your copyright.

Mailing yourself does not confer any legal benefits, nor the ability to sue for statutory damages (up to $150,000 per image).

#4. When you believe you’ve been infringed, you should seek for maximum statutory damages right off the bat.

It’s impossible to generalize an approach without knowing the specifics of a case, and if willful infringement has occurred, Burns says, “there is no reason not to plead for full damages in court.”

But court cases can be expensive in time and money and she reasons that “the point of settlement discussions is to save everyone the considerable cost and hassle of litigation, so asking for the moon and the stars, right at first, gives the other side no reason to agree—they lose nothing by litigating if you demand $150K pre-suit.”

Some lawyers take a more aggressive tack, but Burns cautions that “the courts don’t like it when plaintiffs are too aggressive right out of the chute, especially if they litigate without even trying to settle first.” And filing a “frivolous” suit isn’t without risk because if “it gets dismissed, the photographer (not the attorney!) may very well have to pay the opposing party’s attorneys’ fees and costs,” warns Burns.

Speaking with a few lawyers when your copyright has been infringed is part of a photographer’s due diligence in determining a course of action because each case needs to be evaluated on its own merits.

#5. Copyright collections firms are a photographer’s best recourse for infringement.

A number of services provide photographers with an automated way to find potential infringements, and then initiate a collections process with a click of the mouse. Some photographers like the “works in the background” approach, which can provide a passive income source. Burns thinks the services overcharge the photographer with a 50% or more settlement fee.

But more importantly, she says the photographer loses control in the process because 1) their Terms of Use often require the photographer to use them to settle cases they find, and 2) “they are compelled as businesses to make as much money as possible (literally, the business laws say so) whereas attorneys must put clients’ best interests first, including above our own.”

The bulk approach to settling cases quickly for potentially less than their full value makes sense for these types of business that need to scale, but they don’t necessarily play to an individual’s best interest.

By: Allen Murabayashi –  Chairman and co-founder of PhotoShelter, which regularly publishes resources for photographers.

Legal Articles

What to Do If You Get a Copyright Infringement Letter

As a website owner, it’s easy to infringe on intellectual property rights if you’re not truly cautious. If you end up violating someone’s copyrights, you may receive an infringement notice.

Read the Notice Carefully:

Copyright infringement notices can come from various sources—individual owners, attorneys, and internet service providers. The notice should clearly identify the alleged infringing work to determine whether you truly committed the violation.

The notice should also show proof that the sender owns the copyrights or represents the party who does.

If the letter cannot prove ownership of the copyright, it is invalid, and no further action is necessary. If you think there may be a problem, consider talking to an attorney or replying to the letter to sort out the facts.

Determine Whether Copyright infringement Exists:

Once you locate the copyrighted work in question, determine where you got it. If it’s on your site, that should be fairly easy, but if it’s on someone else’s site that you are hosting, inform them of the notice and ask them to show you where the work came from.

Examples of copyright infringement include, without permission:

  • Using copyrighted images that are not your own on your website or another medium
  • Using copyrighted music clips on your website
  • Modifying images and using them on your website
  • Creating t-shirts or other items using copyrighted images or words
  • Posting a video using copyrighted music, video, or images
  • Copying large portions of someone else’s text and using it on your website
  • Sharing feature-length movies or TV shows
  • Sharing music
  • Using anyone’s copyrighted material and using a “No Copyright Infringement Intended” Disclaimer—these don’t work—infringement can be declared regardless of whether it’s intentional

This list is not exclusive of all infringement examples. If you use an image, music, text, or any other creative work that is not your own and do not have explicit permission to use it, you are likely infringing on someone’s copyrights. If you cannot show you have a license to use the material, you need to remove the material from your site and otherwise stop using it.

Do Not Ignore the Copyright Infringement Notice:

Whether you determine that copyright infringement exists or you can prove that you had permission or the work is yours, reply to the notice. Your reply can be as simple as informing them you have removed the infringing content or a receipt attesting to the license to use an image.

If you fail to respond to a notice, you may be sued. Copyright infringement penalties can be civil and criminal and include:

  • Statutory damages between $750 and $30,000 per piece of work infringed upon
  • Civil penalties of up to $150,000 per piece if willful infringement is found
  • Actual copyright infringement damages and profits obtained due to infringing activity
  • Criminal penalties of up to $250,000 per offense and up to five years in prison

Do not ignore copyright infringement notices. If you have questions about the legality and the next steps you should take, speak with an experienced copyright attorney.

~ by River Braun, J.D.

Legal Articles

CASE Act Passed By Senate Judiciary Committee

The Copyright Alternative in Small-Claims Enforcement Act of 2019 (the CASE Act) is a United States law that establishes a small claims court-type system within the United States Copyright Office for copyright owners to seek damages under US$30,000 for copyright violations.

The CASE Act, a major piece of legislation that would introduce a small claims court for copyright infringement cases, has officially been passed by Senate Judiciary Committee, clearing the way for a full vote on the Senate floor.

This is a major step forward for the copyright legislation, which was introduced by a bi-partisan group of senators from Louisiana, North Carolina, Illinois and Hawaii. As of now, defending your copyrights means taking your case to federal court—a complicated and expensive proposition. If passed, the CASE Act would remedy this by establishing a small claims tribunal within the U.S. Copyright Office, making it much easier and cheaper to defend your copyrights in court.

The unappealable court would be staffed by three full-time “Copyright Claims Officers” appointed by the Librarian of Congress, who would be allowed to assign damages of up to $15,000 per infringed work, and up to $30,000 total.

Now, the CASE Act is one major step closer to becoming a reality, and concerned parties are celebrating. The Copyright Alliance issued a statement commending the Senate Judiciary Committee for taking this step, writing:

We thank the members of the Senate Judiciary Committee, and especially the bill’s original co-sponsors […] for passing the CASE Act out of Committee today and for making it a legislative priority, one that will benefit hundreds of thousands of U.S. photographers, illustrators, graphic artists, songwriters, and authors, as well as a new generation of creators including bloggers and YouTubers.

We look forward to working with the Senate and other stakeholders as the CASE Act moves to the Senate floor and moves forward in the House of Representatives.

The NPPA weighed in as well. “On behalf of its members, the National Press Photographers Association (NPPA) commends the Senate Judiciary Committee and all the bill’s co-sponsors for their swift and decisive passage of the CASE Act,” Mickey H. Osterreicher, NPPA general counsel, told PetaPixel. “This is a very positive step in addressing infringement issues, where previously individual creators felt they had a right with no remedy because of the high cost of copyright litigation.”

However, not everybody has reacted positively to the news. Meredith Rose, Policy Counsel at the public interest non-profit Public Knowledge, told Billboard that the bill as it stands does not involve appropriate oversight.

The CASE Act lacks meaningful opt-in consent for all parties, structural safeguards against abuse, and legal accountability through a right of appeal, said Rose. “The bill would allow an unappealable tribunal to assign damages of up to $30,000, or nearly half the income of the average American household. A tribunal with that kind of punitive power must be accountable.”

Passing out of committee is a big step for the CASE Act, but the fight to establish a small claims court in the US Copyright Office is far from over. The bill will now go to the Senate floor for a full vote, while the House version continues to move through the House of Representatives.

Legal Articles

Yes, Using a Copyrighted Photo Without Permission or License Can Get You Sued

Here’s a basic fact everyone should know: just because a photo appears in a Google search doesn’t mean it’s a free photo that you can use for any purpose. If it’s copyrighted, you could be sued if you use it without permission. That’s what the guy in this 13-minute video found out the hard way.

The video was posted by Internet entrepreneur and marketer Dan Dasilva, who shares that he was recently sued after using a photo owned by photography he found on Google in his Shopify online store.

“The reason I was sued was because I used a picture that I found on Google Images,” Dasilva says in his warning to other content creators.

Dasilva states. “They copyright pictures that they take, and what they do is, they’ll get a copyright on it, and they’ll put it out on the Internet, and it’s freely available on the Internet. If you run a Google search their image will appear.”

Dasilva also doesn’t seem to understand that photos don’t need to be accompanied by a copyright symbol to be copyrighted — in the US, photographers own the copyright from the moment they press their camera shutter.

“For every image that I used that [the photographer] owned that never ever explicitly said on the images ‘can’t be used’ or anything like that, I would potentially be sued for $150,000 if it were to go to court,” Dasilva says.

Dasilva reached a settlement with the photographer on June 5th, 2017, for $27,000. He also paid about $10,000 in legal fees, bringing his total loss from the copyright infringement at around $37,000.

Lesson learned.

(via Dan Dasilva via Reddit)

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Avoid Copyright Infringement and the Rights of Another’s Creative Work.

Copyright is one of several categories of intellectual property (IP) protection, designed to safeguard the creator’s, owner’s, or holder’s exclusive right to claim an original work as their own—when the work is fixed in a tangible medium.

As soon as a work is written on paper, recorded digitally, or typed electronically—or anything that can be heard, seen, read, or touched—the work is granted copyright protection, normally for a limited period of time.

The U.S. Copyright Act was enacted to protect creative works from unauthorized use or copyright infringement. However, despite federal law, which prohibits individuals from copying, publishing, transmitting, exhibiting, distributing, modifying, displaying, or otherwise using (whether for profit or not) the original creative expressions of others, copyright infringement—intentional and inadvertent—still can and does occur.

What Is Copyright Infringement?

Copyright infringement typically involves someone using another person’s original creative work, or a copyrighted work, without permission.

There are many types and forms of copyright infringement. These are some examples of activities that would constitute copyright infringement if you carry them out without first obtaining permission from the owner, creator, or holder of the copyrighted material:

  • Recording a film in a movie theater
  • Posting a video on your company’s website which features copyrighted words or songs
  • Using copyrighted images on your company’s website
  • Using a musical group’s copyrighted songs on your company’s website
  • Modifying an image and then displaying it on your company’s website
  • Creating merchandise for sale which features copyrighted words or images
  • Downloading music or films without paying for their use
  • Copying any literary or artistic work without a license or written agreement

How to Avoiding Copyright Infringement?

While by no means an exclusive list, these suggestions will help you avoid inadvertently pirating another individual’s creative works:

  • Understand what copyright laws protect. Copyright laws are often confused with trademarks, patents, and licenses. Although these are all forms of IP, copyrights are perhaps the easiest to obtain and also to violate—either intentionally or unintentionally. Familiarizing yourself with the U.S. Copyright Act of 1970 and the Berne Convention regulations is a good start.
  • If it’s not your original work, don’t use it. We’re all probably familiar with the saying, “If it’s not yours, don’t touch it.” Copyright laws adhere to the same philosophy: the golden rule is to obtain the express permission from the owner, creator, or holder of the copyrighted material. Unless you’re the creator of the work, you’re not allowed to use it. This is true even when there is no copyright symbol associated with a work.
  • What you find on the internet is generally not fair game. Generally speaking, anything you see or read on the internet has been copyrighted, by default, given that the material (blogs, literary or artistic works, etc.) were created by someone else. If you copy, reproduce, display, or otherwise hold out another’s work (such as an image, musical recording, article, or any other type of work that you did not create) as your own, you are undoubtedly infringing on copyrighted material. This is true whether you benefited financially from the use or not.

How Do I Report and Address Copyright Infringement?

Although private and government agencies accept and process copyright registrations, those entities don’t normally address alleged copyright infringement claims. As the creator, owner, or holder of the copyrighted material, it’s up to you to enforce your rights to stop the infringing activity.

Perhaps the most straightforward and commonly used method to stop copyright infringement is to send a so-called Copyright Infringement Notice directly to the offending party.

This is a written notice that identifies the copyrighted subject matter, specifies the alleged infringement or unauthorized use, and threatens action if the infringing activity is not immediately terminated. The notice may also seek fines and penalties for the past unauthorized use of the copyrighted work.

A Copyright Infringement Notice (or a Notice of Claimed Infringement) is much like a “cease and desist” letter, commanding the infringer to immediately stop the infringement, undo any potential harm, and remove usages of the copyrighted material from public display at once.

If the first method doesn’t succeed, a second option is for you, as the copyright owner, to file a civil lawsuit against the infringing party. In the lawsuit, you will need to prove that your copyright precedes any usage of the materials by the infringing party. You can typically request a court order demanding the infringing party to immediately stop using the copyrighted material and ask for money damages (that is, monetary compensation) for any actual harm that has occurred as a direct result of the infringement.

What Are the Possible Penalties for Copyright Infringement?

  • Copyright infringement penalties can be both civil and criminal in nature and include:
  • Copyright infringement damages and actual profits lost as a direct result of the infringement
  • Civil penalties of up to $150,000 per instance of work, in the case of intentional or willful infringement (such as counterfeiting)
  • Statutory damages between $750 and $30,000 per item of work infringed upon
  • Criminal penalties of up to $250,000 in fines per offense and up to five years in jail

You can protect yourself from copyright infringement by registering your creative works with the help of an attorney. An expert can also assist you in pursuing copyright infringement penalties or defend you against an infringement action.

~ by Jonathan Layton, J.D.

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Did You Receive Copyright Infringement Cease and Desist Letter?

You get done with your work and after a long commute you check your email and you see a copyright infringement letter from Stock Photos.

You open up the letter and it hits you, is demanding that you cease and desist the copyrighted content and remove their images from your website and to pay for images that were used on your website. Typically the first settlement range is between $150 to $750 per image for copyright damages.

This same image could be bought for $50 to $150 via their website, but now is stating that “the damage has been done” and the settlement payment is necessary for them to drop the matter, and this is your chance to avoid a copyright lawsuit.

Usually this is done when someone purposely steals an image, or they download the image they found on the internet, or if they forget to filter a photo by license and grab an image that has a copyright.

Before I explain what happens next, when it comes to photos, when in doubt, assume it’s subject to copyright and don’t use it without the appropriate permission, Permission is often only given if you pay for a license. If you ignore that, then you are guilty of infringement.

Should I ignore their letters?

Ignoring an infringement notice and hoping it will go away, especially without consulting with a copyright lawyer, is a bad idea.

It may be tempting to ignore the accusation while stopping any potentially infringing activities and removing infringing works; however, doing so may result in increased damages, so make sure to find a copyright lawyer experienced in intellectual property law. Copyright law is nuanced and complex.

What’s going to happen next?

1) will send between 2-4 copies of a similar letter explaining that if you don’t settle with them, they will take you to court and the penalties could be far beyond what they are asking as a settlement, sometimes in excess of $8000.00.

2) If doesn’t get a response from you during the next 14 days, they will turn you over to an attorney that they work with who will send you a new letter stating a similar scenario as the original letter, but the price to settle just went up because they now have a lawyer involved.

Growing number of attorneys worldwide have developed business models built upon accepting low-value infringement claims on a contingent fee basis. In these cases the photographer is not required to pay upfront “and usually very high” retainer fees but, rather, agrees to pay 45 percent to 65 percent of any award, either by court decision or through settlement, plus various costs incurred by the attorney as part of the litigation.

3) If is still unsuccessful with those attempts to get you to settle, they will turn your case to their attorneys for assessment and they will file the lawsuit in court.

4) You can (potentially) be taken to court by because they own the copyright for their images, and they have their images registered at the US copyright office.

So, now that you have seen the steps above, it all looks like doom and gloom, You must be thinking, “How on earth am I going to pay all of this money to”, with copyright infringement, you cannot claim you didn’t know what you were doing. Infringement of copyright will result in monetary damages, lawsuits, and legal fees.

What should you do with demand letter?

If your use of the image is infringement, so it is best to begin by correcting the problem and you should consult a copyright lawyer on what to do next before they escalate the issue.

Keep in mind, this company in the photography business since 2005 and they owns the copyright of their images (Chicago Based Photographer: Sam Mugraby), and in many cases they offer a fair settlement fee, and if the settlement payment is paid during the first 14 days and if their image is removed they will close the case immediately and they will end all legal actions.

If you ignore their attempts in resolving the copyright infringement or if you fail to respond within the given period they will go after you, legal conflict is a stressful time. If a matter can be resolved amicably then it is always the preferred approach. legal recovery connections is based on a contingency fee contract with many attorneys worldwide (in exchange for a large percent of any award, either by court decision or through settlement) and they will use your failure to comply with their settlement demands as evidence of intentional copyright infringement or “willful infringement”. The penalties for intentional copyright infringement are heavier than for unintentional violations, and the presence of their copyright settlement notice will be used as evidence that your actions were intentional.

The presence of copyright infringement notice precludes infringers from claiming in court they had no knowledge of the copyright or that they were infringing on it. The “innocent infringement” defense can result in a lower damage award, but the presence of the notice defeats the defense.

What are the penalties for copyright infringement?

The law in the US provides a range from $200 to $150,000 for each work infringed. Infringer pays for all attorneys fees and court costs. The Court can issue an injunction to stop the infringing acts.

Statutory damages are set out in 17 U.S.C. § 504 of the U.S. Code. The basic level of damages is up to $30,000 per work, at the discretion of the court. Plaintiffs who can show willful infringement may be entitled to damages up to $150,000 per work, In the United Kingdom upon conviction in the magistrates’ court for copyright infringement a fine of up to £50,000, In Canada, the Copyright Act provides for statutory damages up to $20,000, In Australia under the Australian Copyright Act 1968, A person who makes an unauthorized use of copyright material infringes the copyright owner’s rights and can be sued for damages, and penalties include fines of up to $117 000 for individuals and up to $585 000 for corporations.

This entire article is based on research I have done and the experience that I dealt with. This article is based on suggestions from resources I have seen and worked with, but it is up to you to decide what to do in this situation.

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Copyright & License Types

Finding stock photos and existing images is often quicker, cheaper and more practical than producing your own, Whether free or not, these resources normally come with a license to ensure fair use. For professionals, understanding the limitations of a license is critical; with this knowledge, you’d be surprised by what’s available. Understanding copyright and licenses allows us to do what we do best: be creative.

When we create something — let’s say a photograph — we own the copyright, which is our exclusive right as the author to own that work. We control who else can use our work and in what manner. For example, I could allow someone to print my photograph or adapt it in a piece of art. Rather than establishing verbal agreements, I can distribute my work with a license that sets the guidelines for use. The things that are copyrighted are sometimes referred to as “intellectual property.”

Licenses are granted by an authority to allow a usage; in my case, the use and distribution of resources by the copyright owner (i.e. me). I may decide to offer my photograph for free or charge a price; either way, I can include a license to limit usage, and I maintain the copyright. Just because someone pays money doesn’t mean they have full control or rights to what they’re buying. Licenses can dictate the number or uses, the bounds of use and even the length of time until the license expires.

Moreover, under “work for hire,” the employer holds the copyright, not the author or creative; in many cases, this is a company (such as a creative agency) or its client (by contractual agreement). In such cases, the creator retains “moral rights” to their work, including the right of attribution. This is partly why published articles refer to the author, although moral rights can include anonymity.

What Is “Fair Use”

“Fair use” is an exception to the exclusive rights held by the copyright owner. It exists in some countries such as the US and UK. Under it, in certain cases, using work without permission is possible. If someone’s usage is defined as fair use, then they don’t need to obtain a license. Essentially, using copyrighted material is a legal right. Examples of fair use might include:

  • Educational purposes, such as teaching and student research;
  • Making commentary and criticism as part of a news report or published article.

There’s a misconception that noncommercial or nonprofit use is always acceptable. It isn’t. Fair use is a legal term and is judged case by case. Always research thoroughly if you think your use of copyrighted material is legal.

What Is “Public Domain”?

Work that falls in the “public domain” basically has no copyright owner. You can use, modify and redistribute it to your heart’s content. An author can forfeit their copyright and, thus, put their work in the public domain (although it’s not quite that easy, as we’ll see later). Copyright ownership expires after the author’s death (generally 50 to 70 years after death in most countries).

Legal Jurisdiction:

Every country has its own interpretation of copyright law, but there are many agreements between nations. Licenses are enforced under copyright law, which is different than contract law. The distinction here is questionable within certain jurisdictions, each of which applies the law differently.

The Berne Convention (for the Protection of Literary and Artistic Works) was established in 1886 and is an international agreement that governs copyright. It states that each member state must recognize the copyright of work from other countries, and it must extend the same rights to foreign work that it gives to those of its own citizens. It also makes clear a minimum standard of protection for copyright owners. To date, 164 countries have signed this agreement.

Licenses can be limited to certain jurisdictions. So, while something may be free in one country, the copyright owner could reserve all rights in other countries.

If you’re reading this, I can guess pretty confidently that you work on the Web and that you are, or will be, purchasing licenses from copyright owners in different countries. These licenses are bound by the laws of those countries, and you must respect them.

We’re getting into political and legal territory here. Remember: if in doubt, get legal advice.

License Terminology

A license can be written from scratch, but most people choose a well-known one. We’ll cover the common licenses that relate to our industry of website design and development, specifically those that allow for free usage — “free,” meaning that no money is required. Generally, licenses that govern paid resources are written individually, but all licenses have commonalities.

There is obviously a fundamental difference between, say, development code and stock photography. So, it should come as no surprise that a range of licenses exist. Each is tailored to the usage. Before we dive into them, let’s go over some common terminology:

  • “Copy” A simple copy of the original work.
  • “Modify” To alter copyrighted work in some way before using it.
  • “Derivative work” The result of modifying copyrighted work to produce new work.
  • “Distribute” The act of giving someone your work under a license.
  • “Redistribute” The act of distributing work and its license after obtaining it under license from the original copyright owner.
  • “Share alike” Permission to distribute derivative work under the same or a similar license.
  • “Credit” or “attribution” The act of identifying the original copyright owner.
  • “Copyright notice” A written phrase or symbol (©) informing of copyright ownership (not necessarily required by law).
  • “All rights reserved” A common copyright notice declaring that no usage rights exist (again, not necessarily required).
  • “Warranty” A written guarantee included with the license (or, usually, not).

Creative Commons
Lawrence Lessig founded Creative Commons (CC) in 2001 to create a series of easy-to-understand copyright licenses for online creative work. These licenses established the notion of “some rights reserved.”

The Creative Commons license has six variations. It’s really a collection of licenses that cover particular uses. These include whether the licensed work can be used commercially, whether it can be modified, and whether derivative work can be redistributed under the same (or a compatible) license. A Creative Commons license can be restricted to certain jurisdictions or apply internationally.

~ by David Bushell.

Legal Articles

Everything About Cease and Desist Letters

A cease and desist letter does not automatically signify a lawsuit. It is simply a warning about illegal behavior that lets you know that further penalties could follow if the behavior, such as patent infringement, doesn’t stop.

Here are some ways it is possible to violate the intellectual property of another:

  • Plagiarizing someone’s work
  • Using an invention without the right to access it
  • Engaging in illegal or suspicious activity that involves someone’s work

The first step that you can take to address these issues is to send a cease and desist letter. This letter puts the person in violation on notice that they are engaging in illegal use of a property. It advises them to stop, or further action will occur.

Other names for a cease and desist letter include:

  • Cease and desist notice
  • Cease and desist form
  • Demand letter
  • Stop harassment letter

All of these examples are simply formal letters warning the person to stop their illegal behavior.

What is a Cease and Desist Order?

A cease and desist order is different from a cease and desist letter. The main difference is in terms of legality. Letters have almost no legal standing. Orders do. A cease and desist order is granted by a court. It serves as a temporary injunction. The party that receives the order must stop what they’re doing until a trial can be held. After the trial, a permanent injunction may be ordered.

Reasons to request a cease and desist order include:

  • Libel
  • Defamation

Libel is when you are being attacked in print. Defamation is a verbal attack on your reputation.

What Are the Uses of a Cease and Desist?

There is a number of cases that might lead someone to issue a cease and desist. These include:

  • Character assassination, libel, slander, or defamation
  • Trademark infringement
  • Copyright infringement
  • Patent infringement (Design or Utility)
  • Violation of non-competition agreement
  • Harassment, including by debt collectors under the Fair Debt Collections Practices Act
  • Breach of contract

A cease and desist can also be used to stop contributory infringement. This is when someone knowingly contributes to infringement, but did not actively participate in it. It is sometimes known as “secondary liability” or “contributory liability.”

Trademarks, copyrights, and patents are the three major ways to protect intellectual property. Trademark and copyright apply the moment you are the author of something. They also apply when you begin using a specific brand, phrase, or trade dress in connection with your professional practices. Filing official paperwork for these is optional. However, registering your protections can hold great weight in court.

Patents, on the other hand, are more complex and expensive. They must be registered for protection. They protect inventions, physical creations, and the processes that go into their functioning.

When Should I Send a Cease and Desist?

Use a cease and desist notice if you want to issue a formal warning to someone to stop doing what they’re doing. This includes using your property, harassing you, or illegally using your trademarks.

Usually, but not always, a cease and desist is the first formal step following an informal notification. Many people first informally ask the infringer to stop what they’re doing. If they don’t, a cease and desist is the next step. It adds a weight of formality to your request. It can also serve as a step to begin further legal processes, if necessary.

A compelling reason to use a cease and desist is that it is much faster than beginning formal legal proceedings. It also often stops the offending behavior without the need to take it any further.

What Legal Weight Does a Cease and Desist Notice Have?

In practical terms, a cease and desist has no real legal weight. However, it fulfills an important function in the legal process. It establishes that you have told the offender about their violation. They now cannot claim they didn’t know they were in violation.

Such a letter places an informal injunction on the actions of the person in violation, who can then:

  • Stop their behavior
  • Challenge the validity of the letter
  • Ignore it, and face the consequences of further legal action

Say the cease and desist is legitimate but challenged. The next step is a formal hearing to review the validity of the demands in the notice. The judge will determine if the defendant must stop the behavior. Failure to comply after that is punishable by law.

Can I Sue Without Issuing a Cease and Desist?

Yes, you can file a civil suit without writing and sending a cease and desist. However, issuing the notice has benefits. First, it can begin negotiations to settle the matter without a court battle.

Second, it puts the defendant on notice. It’s more difficult to sue someone for doing something wrong, if they didn’t know they were doing anything wrong.