how to proceed with a copyright accusation
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how to proceed with a copyright accusation
My 15-year-old daughter created a WordPress travel blog last year as part of a marketing project. The blog unexpectedly began to receive traffic so she decided to hang onto it for an upcoming travel and tourism course she taking next year and she grew the content by allowing writers to contribute their travel reviews, photos, etc. Although there are clickable banners on the site, they are merely for show and to highlight some of the articles on the website, as she does not make any money with the blog. Then, 2 months ago, she wrote an article about Las Vegas and looked for an unlicensed photo to upload with it. She conducted a Google search for wallpaper since wallpaper is unlicensed and shareable. She found a photo she liked and followed it to a link on Pinterest where indeed it did not have a watermark or logo, there was no photographer or website credit, and no link back to an originating site. Believing that it was indeed shareable wallpaper, she used the photo with her article. Yesterday she received an email from a travel website rep in Las Vegas, claiming that the photo was his and accusing my daughter of removing his branding watermark from the photo. Attached to the email was an invoice for an arbitrary amount of $2650 for the photo. We are Canadian so this would translate to approximately $3538. My daughter instantly removed the photo from the blog and replied immediately to apologize. She politely explained how she found the photo, that she had not been the one to remove the watermark, and why she was led to believe that it was an unlicensed photo. 10 minutes later, the copyright agent who is really just the website owner by the look of it responded by saying Given that you removed our copyright branding from our image, we will not be waiving the fee, thereby making it clear that the crux of his issue was the removal of his watermark on the photo.To prove that she had discovered the photo in a wallpaper search and that she had not been the one to remove the watermark, my daughter she took a screen shot of the Pinterest page on which she found the image, as well as other 2 other Pinterest pages on which the image had been shared without any logos, watermarks, credits, etc. She forwarded the screen shots as proof that the image exists on 3 Pinterest pages without his watermark so she wasnt the one who removed it and again she apologized profusely. She said there was no malicious intent when she mistakenly used the photo, instead the malicious intent lies with whoever removed the watermark to upload it to Pinterest. She also went on to explain that she is only 15, and the blog was a marketing project that had definitely mushroomed but generated zero income. Plus, she provided him with the actual culprit who had cropped his watermark so she was hopeful he would pursue it with them, accept her sincere apology and lay the issue to rest. Instead, he replied a few minutes later with a new invoice in which he reduced the payment to yet another arbitrary amount and this time $575 if she paid immediately and changed his story from the issue of the watermark to the issue of using his photo without permission. He also said that he didn’t care how old she was or that her blog made no money, and that if she didn’t settle up with immediately with $575, he would be seeking legal counsel. To me, it doesn’t make sense that he would initiate legal proceedings to fight such a claim over the border with a 15-year-old, given that so very many copyright claims these days are muddied by the internet and therefore are thrown out or severely reduced once they hit a courtroom. And like I said, my daughter has proof that she found the photo with the watermark already removed so had no way of knowing it was not actually wallpaper. What do you suggest? How should we proceed?
Asked on March 21, 2017 under Business Law, Alaska
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 4 years ago | Contributor
It is not easy to sue across borders, and the cross-border aspect increases both complexity and cost. Furthermore, someone cannot "arbitrarily" set any amount he likes for the damages (amount of compensation) in a copyright case: even if the copyright owner wins the suit, he or she can, in cases of non-willful (i.e. not deliberately wrongful) infringement generally only get an amount equivalent to the economic value of the picture (i.e. what it might cost someone to license a similar photo). That being the case, the owner faces a potentially difficult and/or expensive lawsuit for little return. The odds are, he will not even sue; you can simply (having already apologized) ignore him unless he does file and properly serve on you a lawsuit; if he does, you can decide whether to fight or whether it makes sense then to offer to settle. If he doesn't sue, there is absolutely no obligation or compulsion to pay.
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