Legit or Scam? Strategies for Responding to Sam Mugraby’s Boxist Photography and Copyright Claims / Tips from an IP Attorney
As the digital world continues to grow, so do the challenges related to copyright infringement online. Have you recently received a cease and desist or a letter of demand from a copyright owner, such as Sam Mugraby of Boxist Photography? If you have, this article is here to help you understand your options and make informed decisions.
In this article, I’ll share comprehensive insights and recommendations on how to navigate the complexities of handling copyright infringement demand letters, drawing from my experience as a copyright attorney.
Understanding the Situation: These letters of demand typically come from copyright owners like Sam Mugraby of Boxist Photography and are often sent through legal firms like ImageRights International, Inc., Higbee & Associates, Doniger / Burroughs Law Firm, Pixsy Inc. or Westlord & Associates Legal. The accusation is straightforward: unauthorized use of of Boxist Photography / Sam Mugraby’s copyrighted images without the payment of licensing fees.
First, I want to offer you a crucial piece of advice: Avoid taking online advice from random strangers or even well-trusted business coaches. While they may mean well, their advice can often be legally incorrect.
1. Don’t Panic and Refrain from Admitting Liability
When you find a demand letter in your inbox, it’s natural to experience anxiety. However, the first piece of advice is to stay calm and refrain from admitting any wrongdoing. In most cases, this initial contact aims to initiate settlement discussions, not litigation. It’s important that you promptly consult a copyright attorney to navigate this situation effectively. Inform the copyright owner that you’ve received their letter and are actively seeking legal counsel.
Failure to respond promptly can lead to an escalation of the situation. These letters often stipulate a timeframe within which you must comply with their demands, usually ranging from 14 to 21 days. If you decide to respond after this period, it may incur higher costs since the copyright owner will likely involve their legal representatives.
It’s crucial to exercise caution in your response. Many clients I’ve worked with in the past initially responded with apologies, stating they were unaware of infringing copyrights. It’s important to understand that ignorance of infringement is not a valid defense. If you acknowledge fault in your response, you essentially admit liability, and the path forward may involve payment. Therefore, maintain composure and avoid admissions of guilt.
Most clients who come to me, once they’ve already responded, their response has been, “I’m so sorry. I didn’t know I was infringing your copyright.” Ignorance of infringement is no excuse, it’s no defense, and if you say, “I’m sorry that I infringed,” you’ve admitted you’ve infringed, and just go and pay them because you’re going to have to pay them now you’ve admitted liability.
2. Don’t Ignore the Issue
In the age of online information, there’s no shortage of advice suggesting that you should simply disregard and ignore these copyright infringement demand letters. To illustrate the potential consequences of this approach, let me share a real-life case study.
Consider the story of Rachel, a friend of mine and a medical doctor. She received a demand letter requesting $200 for the unauthorized use of an image. She decided to follow this approach when she received a letter of demand from Boxist Photography. She had read online that ignoring copyright infringement letters might make them go away, that it could be a scam, or that pursuing a $200 image copyright claim in court might cost the photographer more than it’s worth. Consequently, she chose not to pay the $200.
They sent her about five letters, and then they suddenly stopped. However, a year later, she received a new letter from a law firm demanding $1,250. She again decided to ignore it, without seeking advice from a copyright attorney, convinced that the letters and phone calls were part of a scam attempt.
Sixty days later, she learned that Mr. Sam Mugraby had filed a lawsuit against her in court. It was at this point that she realized she shouldn’t have ignored those letters. Her situation had escalated from a $200 settlement to a potential cost of $30,000 to $150,000.
So, the lesson here is clear: Don’t ignore such letters.
3. Determining the Legitimacy of the Copyright Letter
Is Boxist photography copyright letters is a scam? There are scammers out there pretending to be collecting copyright fees on behalf of copyright owners, so how can you tell? The question of whether the copyright infringement demand letter you’ve received is legitimate or a potential scam is a valid concern. To address this, consider the following steps:
a. Communication Channel: Legitimate photographers and copyright enforcement agencies typically communicate through formal channels, including email. Telephone-only contact may raise suspicion. If someone contacts you solely by phone, request that they use the usual methods of communication.
If someone contacts you by telephone only, that could be an indicator that it’s a scam. You should ask them to contact you in the usual way. It’s important to note that the Digital Millennium Copyright Act (DMCA) recognizes email correspondence as a valid form of notice for copyright infringement claims. While certified mail is indeed one method of providing notice, it may not be practical for the exchange of files, images, and links, which cannot be easily sent via traditional mail.
b. Verify the Sender’s Identity: Confirm that the letter or email you receive is from the legitimate source, such as Boxist Photography. Scammers often impersonate copyright owners. Ensure that the email address aligns with their official domain (e.g., boxist.com). If the email address does not match their official domain, it could indicate that they’re a scammer using their name. Additionally, try to send them an email directly to their email address listed on their contact page or use their contact form. This way, you can verify that the copyright letter is genuinely from them and to verify the authenticity of the copyright letter.
c. Scrutinize the Letter: Examine the details within the letter carefully. Check for crucial information, such as the image’s specifics and a US copyright registration number. You can cross-reference the registration number on the copyright office website. If all details align, it’s a positive indicator that the copyright letter is legitimate. Once everything matches, then you are on the safe side, and it’s not just another scam email.
So, you’ve taken step number three and verified that it’s not a scam.
4. Image Comparison and License Verification
As you delve deeper into handling the copyright infringement claim, consider these steps to validate the situation:
a. Image Comparison: Review the images in question and ascertain their similarity. Copyright owners typically claim the unauthorized use of identical or virtually identical images. Even alterations or transformations may still constitute copyright infringement. While, in my 25 years of experience, I’ve rarely encountered dissimilar images in such cases, it’s prudent to conduct a thorough comparison to be sure.
b. License Verification: Assess whether you genuinely have a license for the image in question. It’s possible that you have indeed acquired the image legally through a licensing agreement from them. If you possess a valid license, locate and provide a copy as proof. This license serves as your “get out of jail free” card. By submitting it, you demonstrate that you have the legal right to use the image within the license’s terms and conditions.
It’s crucial to refrain from using common excuses like “I found it on the internet, and I thought it was free” or “I obtained it from a wallpaper site.” Using images without proper licensing or authorization is a responsibility that rests squarely on the user’s shoulders. Copyright infringement claims do not consider “good faith” as a valid defense.
It’s worth noting that while some websites offer free stock content for free use without attribution, users must exercise caution. The uploader of such content may not necessarily be the rightful copyright owner. These free platforms often include disclaimers to indemnify themselves from any legal claims.
Additionally, the absence of monetary gain from the use of an image does not absolve individuals from copyright infringement. Whether or not profit was generated is irrelevant; copyright violations are determined by unauthorized usage.
5. Take Prompt Action – Remove the Image
Once you have verified the following:
- It’s not a scam.
- The images are indeed similar and you are using their image or images.
- You don’t have a license or you cannot prove you have a valid license.
Take immediate action. Specifically: Remove the infringing image not only from the page where it was displayed but also from your server. This comprehensive removal is essential. Failing to do so can expose you to allegations of willful infringement. The fact that you continued using the image after receiving notice of the infringement may be used as evidence against you. In copyright infringement lawsuits, willful infringement can lead to significant financial penalties, potentially reaching up to $150,000.
6. Negotiate in Good Faith
a. Email or Phone Communication: You have the flexibility to engage in negotiations through either phone calls or email correspondence. The choice between these methods largely depends on your comfort level and preferred mode of communication. Many copyright owners or their representatives are open to both forms of discussion.
b. You Can Negotiate Without a Lawyer: It’s important to note that you do not necessarily require legal representation for the negotiation phase. While having a copyright attorney can provide valuable guidance, negotiation can be conducted on your own if you feel confident in doing so.
c. Counter Offer: If the copyright owner’s initial demand seems exorbitant or financially burdensome, consider making a counter offer. This is a standard practice in negotiations. Craft a well-reasoned and respectful email outlining your counterproposal. If they are requesting a substantial sum, don’t hesitate to propose a lower amount that you believe is fair given the circumstances.
d. Experienced Negotiation: Drawing from my experience in handling copyright infringement cases, I’ve often been able to negotiate settlements that are significantly lower than the copyright owner’s original demand. In many instances, I’ve achieved agreements for approximately 30% of the initial demand. For example, if the original demand was $1,500, successful negotiations could result in a settlement closer to $500 or $600. While this may not be the ideal outcome, it can provide a viable solution to resolve the matter.
e. Consider the Cost-Benefit Analysis: When contemplating your negotiation strategy, it’s essential to weigh the potential financial costs of settling against the expenses associated with litigation. Legal proceedings can be time-consuming and costly, often far exceeding the amount demanded in the copyright infringement letter. In some cases, pursuing negotiation, even if it involves payment, may be the most pragmatic course of action to swiftly resolve the issue and avoid protracted legal battles.
f. Individualized Situations: Every copyright infringement case is unique, and the approach to negotiation should be tailored to the specific circumstances. If you’ve received demands for multiple images, as was the case with one of my clients who faced a demand for $1,500 per image for five images, the situation can become financially burdensome quickly. Unfortunately, that client ended up with a $7,500 bill. In that case, I assisted in negotiating it down. In such cases, skillful negotiation can be instrumental in reducing the overall settlement amount.
g. DIY Negotiation: If you’ve received a demand for one or two images and feel confident in your negotiation abilities, it may not be necessary to involve legal counsel. Engaging in the negotiation yourself can lead to a cost-effective resolution. However, if negotiations become protracted or complex, it’s advisable to consult with a copyright attorney to ensure your interests are protected.
In conclusion, negotiation is a viable and often preferred method for resolving copyright infringement disputes. Whether you negotiate on your own or with legal representation, approach the process professionally and respectfully. Be prepared to make counter offers, consider the cost-benefit analysis, and strive for an agreement that allows you to move forward while protecting your rights and interests.
Remember that each case is unique, and the negotiation strategy should be adapted to the specific circumstances. With the right approach, negotiation can offer a practical and efficient way to address copyright infringement claims and reach a mutually satisfactory resolution.
8. Always Settle Out of Court
In the realm of copyright infringement, one golden rule stands out: whenever possible, settle the dispute out of court. Waiting to be taken to court should be a last resort for several compelling reasons:
a. Legal Expenses: Engaging in litigation can be financially draining. Legal fees, court costs, and related expenses can quickly accumulate. Additionally, if the copyright owner prevails in court, you may be responsible for covering their attorney’s fees as well, significantly increasing your financial burden.
b. Protracted Legal Battles: Court proceedings can be protracted and time-consuming. They may extend for months or even years, causing undue stress and distraction from other aspects of your life or business.
c. Risk of Greater Damages: When copyright infringement disputes reach the litigation stage, the potential damages awarded can be substantial. The law provides a framework for determining these damages, and copyright owners may use every available legal avenue to maximize their claims. In some cases, damages can reach as high as $150,000 per infringement.
d. Legal Complexity: Copyright law is complex, and litigation involves navigating a maze of legal procedures and rules. It’s easy to become overwhelmed by the intricacies of the legal system, especially if you lack legal representation.
e. The Advantage of Settling: Settling out of court allows you to exert more control over the outcome. Negotiating a settlement allows for a degree of flexibility in reaching mutually agreeable terms. This can lead to a quicker resolution with potentially lower financial implications.
In summary, settling copyright infringement disputes outside of court is a prudent strategy. It helps mitigate financial, legal, and time-related burdens, allowing you to reach a resolution that is amicable and manageable. While litigation remains an option, it should be reserved for cases where all other avenues have been exhausted. By following these recommendations, you can navigate copyright infringement claims with greater confidence and safeguard your rights and interests.
Moving forward, it’s imperative to ensure that you always have a valid license agreement when using images, whether on a blog, Facebook, website, or any other platform. Having a documented license agreement, along with proof of payment of royalties or image fees, serves as a safeguard against future copyright disputes. It provides concrete evidence that you have the legal right to use the images, protecting you from similar situations down the road.
In closing, navigating copyright infringement claims can be a daunting task. However, by following these recommendations, you can effectively address such issues:
- Don’t panic: Stay composed and consult with a copyright attorney.
- Don’t ignore it: Address demand letters promptly.
- Check for legitimacy: Ensure the demand is from a legitimate source.
- Compare images: Verify the similarity of the disputed images.
- Have a valid license: Possess and maintain a documented license agreement.
- Remove infringing content: Take down the infringing material promptly.
- Negotiate professionally: Consider negotiation as a means of resolution.
- Settle out of court: Whenever possible, resolve disputes without litigation.
These steps, combined with a proactive approach to licensing and image usage, can help you navigate the complexities of copyright infringement while safeguarding your rights and minimizing potential legal and financial ramifications.
© 2023 Megan Smith, Attorney-at-Law | IP Intellectual Property Law