Mark Pestronk
Q: A week ago, our agency received a letter from a national law firm. It's probably junk mail, but I am just checking with you in case it isn't. The letter begins, "After making several unsuccessful efforts to resolve a copyright matter, the Associated Press has now hired our law firm to pursue this claim."
The letter encloses a blurry black-and-white image of a photo on our website, and it claims that we are using the photo without the copyright holder's consent. The author states that we can settle this copyright law violation for $1,400 paid within 14 days, or we could get sued for copyright infringement, which could total $30,000 per violation. The photo appears to be one submitted by one of our ICs, so we assumed that she took it, and we had our webmaster upload it. Is this a scam? What should we do? What will happen if we ignore it?
A: Several of my clients have received letters like this. With new web-searching tools, photo-licensing bureaus like Getty Images, Associated Press and PicRights can match website photos against professional photographers' works, and the bureaus seem especially interested in travel destination photos.
So, the letter isn't a scam, and I strongly recommend that you settle the matter. You probably won't have to pay $1,400, but you may need to pay something, and you need to take the photo down immediately.
The federal copyright law is a no-fault statute, and all that the plaintiff has to prove is that you used it for commercial purposes without permission. It doesn't matter who gave you the photo, nor does it matter that you had no idea it was taken by a professional photographer.
If you ignore the letter, the law firm will keep pestering you. Unlike a collection agency, you can't insist that a law firm stop harassing you.
If you write a letter or email explaining why you think you are not liable and offering nothing, the law firm will send a rebuttal letter refuting your arguments, and you will have gotten nowhere. It is unlikely that the law firm will file suit, but I can't guarantee that it won't happen.
My best advice is to consult a lawyer that specializes in copyright law so he or she can settle the matter on your behalf. I realize that this approach may well cost more than the $1,400, but the copyright lawyer may be aware of legal defenses that will enable you to settle the matter without any payment.
My second-best advice is for you to write a formal business letter explaining the circumstances under which you acquired the photo without realizing that it was copyrighted, stating that you have already deleted the photo from your website and further explaining that paying the whole $1,400 would be a financial hardship -- and finally offering to settle for 25 cents on the dollar.
In my experience, the law firm will probably counteroffer 50 cents on the dollar, which would be $700 in your case, and the matter will be settled when you pay.