image copyright takedown issue (unauthorized image use)

13 replies
Got a notice today that I owed $600 + for recording a PC Repair video over 4 years ago and my desktop background was apparently a copyright image even though it was in the video for all of a few mins. I made the mistake of replying to these clowns. Even though I saw this thread

http://www.warriorforum.com/main-int...used-blog.html

It's still scary when I get these and I wanted advice. They replied nicely with that's fine I took it down, but I still owe money. I have taken the video off my site.
#copyright #image #issue #takedown #unauthorized
  • Profile picture of the author twstein86
    From: LCS@estockphoto.com [mailto:LCS@estockphoto.com]
    Sent: Wednesday, March 25, 2015 6:50 AM
    To: xxx
    Subject: Unauthorized Use of eStock Imagery - Case Number xxxx (Ref: xxxx)


    eStock, License Compliance Services
    605 Fifth Avenue South, Suite 400
    Seattle, WA 98104, United States
    Email: LCS@estockphoto.com, Telephone: +1 855 387 8725

    March 25, 2015
    OFFICIAL COMMUNICATION - Case Number: xxxxx
    _________________________________________________
    1. Our represented imagery is/was used on your website.
    2. Our records do not show a valid license for this use of our imagery.

    Your action is needed within 10 business days to resolve this matter:
    • Send us your valid license / authorization (LCS@estockphoto.com)
    • Or settle online: https://LCS.estockphoto.com/xxxx
    For inquiries: +1 855 387 8725
    More details can be found below.


    Attn: xxxx
    eStock, a global provider of digital imagery, has noticed its represented imagery being used on your company's website. According to our records there is no valid license issued to your company for the use of the image(s).
    Using imagery of eStock without a valid license is considered copyright infringement and entitles eStock to seek compensation for infringing uses. (Copyright Act, Title 17, United States Code)
    To view the image(s) in question together with proof evidencing your use of these images on your website, go to: xxx
    As an example, see below eStock's image "LSIM-032483" as used on your website:
    Original image
    Proof of use


    TO RESOLVE THIS MATTER - (Case Number: 3xxxx4)
    You are requested to take action within 10 business days of the date of this email, as follows:
    • If your company has a valid license / authorization for the use of the imagery, please email the license purchase / authorization information to LCS@estockphoto.com
    • If your company does not have a valid license / authorization for the use of the imagery:
    o A $680.00 settlement payment should be remitted (see payment options below).
    We are willing to offer you, ex gratia, a 5% discount off the abovementioned settlement payment amount, provided that you submit payment within 10 business days of the date of this email. Failure to do so will result in the settlement amount being returned to its original amount upon the expiration of the aforesaid time period
    o Cease using the imagery immediately
    REMITTANCE PAYMENT OPTIONS
    • Online payment: You can remit your payment online at:
    https://LCS.estockphoto.com/xxxx
    • Check payment: You can remit payment by check to:
    License Compliance Services, Picscout Inc.
    605 Fifth Avenue South, Suite 400, Seattle, WA 98104, United States

    Please include Reference: 4QNJ-ZEVX with check payment.
    Alternatively, you may contact us at +1 855 387 8725
    IMPORTANT NOTES
    • Ceasing use of the imagery does not release your company of its responsibility to pay for the imagery already used. As the unauthorized use has already occurred, payment for that benefit is necessary
    • You may have been unaware that this imagery was subject to license. However, copyright infringement can occur regardless of knowledge or intent. While being unaware of license requirements is unfortunate, it does not change liability
    • Find further information in the FAQ section at https://LCS.estockphoto.com/

    eStock is committed to protect the interests, intellectual property and livelihoods of its contributors.
    We believe that prompt cooperation will benefit all concerned parties. If you would like to continue to use the imagery in question, or if you believe you have mistakenly received this letter, please contact us by email at LCS@estockphoto.com, or call +1 855 387 8725 and we will assist you.

    This letter is without prejudice to eStock’s rights and remedies, all of which are expressly reserved.
    Sincerely,
    eStock, License Compliance Services.
    LCS@estockphoto.com
    Terms and Conditions - eStock


    From: me
    Sent: Wednesday, March 25, 2015 7:16 AM
    To: LCS@estockphoto.com
    Subject: RE: Unauthorized Use of eStock Imagery - Case Number xxxx (Ref: xxxxxxxxxxxx)

    The images have been removed and these videos are over 4 years old. Statue of limitations are not in effect.

    Thank you and sorry for the confusion!





    From: xxx
    Sent: Wednesday, March 25, 2015 3:30 PM
    To: xxx
    Subject: Re: Unauthorized Use of eStock Imagery - Case Number 371477284 (Ref: 4QNJ-ZEVX)

    On Wednesday, March 25, 2015 2:34 PM, LCServices Inc <lcs@lcservices-inc.com> wrote:

    Dear Mr. xxx

    While we appreciate the removal of the imagery from the website, the prior unauthorized use of the imagery on the website is considered copyright infringement. Since copyright infringement already occurred, payment for that unauthorized use is necessary.


    Samantha Clemens
    License Compliance Services, eStock Photo
    P: 1.855.387.8725 E: lcs@estockphoto.com
    605 Fifth Avenue South, Suite 400
    Seattle, WA 98104
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    • Profile picture of the author Kay King
      Even though I saw this thread
      The only person in that thread speaking with authority is Kindsvater - an attorney...

      I'm not sure what you want. This might or might not be a big problem but what you'll get here are only opinions and worth nothing.

      Some will tell you to "ignore it" - and that might work or might not.

      Other might tell you to try to negotiate a lower number to pay - that might work or might not.

      Whatcaught my eye was the time mentioned:

      recording a PC Repair video over 4 years ago
      I don't know if that's relevant but it seems odd it would take 4 years to notice it (unless the video was not online for that long) so I'm wondering if they owned the image then or not. Don't know if it matters, though, as I'm not a lawyer.
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      • Profile picture of the author ForumGuru
        Banned
        The only person in that thread speaking with authority is Kindsvater - an attorney...
        LoL --> Nothing against him, and I imagine he has done some copyright cases, but I don't think Kindsvater is an intellectual property attorney that specializes in copyright law. Speaking with authority? 14 years in the stock image business professionally, 14 years pursuing copyright infringers on a professional level, 14 years protecting personal and third party image copyrights, 14 years running stock image sites professionally, 14 years studying copyright law, and 14 years dealing professionally with intellectual property professionals, copyright attorneys, lawyers, agents, and other copyright professionals could be considered by many to be "with authority".

        Without knowing the specifics of the image, the terms of use of the image and and/or licenses available at the time, the video project itself, the financial harm that has been done, and how a judge would rule on fair use and other relevant details makes it impossible for us to know if the stock image company has a legit claim against you that they could win in court.

        FWIW, estockphoto is a smallish company that has been around since 1999 so it is possible that they have been licensing that image (or controlled the licensing rights) for a while.

        I don't know if that's relevant but it seems odd it would take 4 years to notice it
        The 4 years that has passed *could* mean nothing more than you have infringed for 4 years... Just because the company did not notice you until now does not mean much itself (other than you admitting that you have used the image for 4 years) without knowing the other details mentioned earlier. The company has been around 16 years so they certainly could have had the licensing rights from 4 years ago.

        I believe the U.S. statute of limitations on copyright theft in criminal proceedings is ordinarily 5 years from the cause of action. The statute of limitations on commencing civil action on copyright claims is 3 years after the claim accrued.

        Under U.S. copyright law the statute of limitations begins running when the infringement is discovered. Generally speaking, some judges have awarded damages for the entirety of the infringement, and others have awarded damages for the last 3 years of the infringement.

        It's not odd that it took 4 years for someone to notice an unlicensed image in the middle of a repair video. In-fact it's more odd that the single image in a repair video was noticed by someone in the company, especially if it was not the video thumbnail. Technology to track down pirates is getting better every year, and more and more companies are forming partnerships to track down pirates using high tech means, and that may be how they got you.

        To think that a small company hires a staff to physically watch hundreds of millions (or more) videos to match millions of images to their libraries, licenses, and license holders is absurd. The companies primarily rely on technology to find unauthorised use of images, and if they did not use technology (or partner technology) then it was a pure stroke of luck that the the image was noticed by someone at the agency or by the photographer.

        Note to self --> don't use images you don't have the rights to use unless you are prepared to defend yourself on fair use or other grounds.

        Cheers

        -don
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        • Profile picture of the author kindsvater
          with authority
          I'm fairly certain any attorney, including those fresh out of law school, is going to have, or can quickly acquire, legal knowledge that will trump a picture seller regardless of how many years they have been selling.

          For example (Don - this is for you) it doesn't make sense to license images stating they can be used on client websites and other third party properties, and at the same time state images cannot be sold, sublicensed, given away, shared, etc.

          Just sayin' ...

          .
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          • Profile picture of the author ForumGuru
            Banned
            Originally Posted by kindsvater View Post

            I'm fairly certain any attorney, including those fresh out of law school, is going to have, or can quickly acquire, legal knowledge that will trump a picture seller regardless of how many years they have been selling.

            For example (Don - this is for you) it doesn't make sense to license images stating they can be used on client websites, and at the same time state images cannot be sold, sublicensed, given away, shared, etc.

            Just sayin' ...

            .
            LoL!!

            This coming from a guy that sells a WSO on how to use images that you do not have a license to use. All the way down to altering an image so it makes it more difficult to be caught. Not exactly great advice. Yeah, you are an authority allright.

            I am not so certain you care all that much about image copyrights, what you seem to care about is something else altogether.

            Nah, I am not so sure at all. I have seen attorneys that don't have a clue, and some that were worse than not having a clue. Some attorneys are complete dumba$$es that are utterly clueless in certain areas of the law. Worse yet, some of those guys charge a decent fee for their poor advice and/or service.

            FWIW, I was not speaking of trumping anything or anyone either...but obviously you are not an expert in stock image licensing and the operations of stock image companies.

            I guess you do not believe the different licences that legit companies issue will hold up in court. Royalty Free, Extended Royalty Free, Rights Managed etc. etc.

            I guess you have never heard of ad agencies licensing images for use in client projects? Publishers licensing images for their clients? I guess you have never heard of an image being given to an unrelated party for unauthorised use without a license? I guess you have not heard of a license not allowing the image to be posted to photo sharing sites? I guess you have not heard of an image that is licensed to be used editorially only, eh?

            Are all terms of all image image licenses always enforceable? No. Are the terms added for a specific reasons. Yes.

            In my case for the WSO I ran I added an an additional license that gives terms beyond what the ordinary extended royalty free license gives. In-fact the WSO includes many different licenses which grant some seriously liberal uses.

            I still get checks from big publishers on rights managed images every time they republish a book or magazine and I don't need a lecture on how rights managed (or other) licenses will or will not fly.

            Just sayin'

            Now go ahead and give the OP your expert legal opinion or your 29 cent forum advice. Please do!

            -don
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  • Profile picture of the author twstein86
    Well the bigger context and a HUGE thanks to those who have replied so far.

    I was recording a video for MalwareBytes 4 years ago just to show customers how to use it from start to finish to scan their computers for viruses. The background was in an out of the video since I was showing them how to navigate through the start menu, how to run the program and the program during the tutorial wasn't full maximized so the desktop was always showing.

    They claim that background (which was actually via the Windows personalization settings at the time, I didn't get the image from any site) is theirs and they want me to pay.

    Are there any kind of questions or things I can fire back at them to see if they blink first? Can I bluff any say I have a lawyer? This just doesn't seem right. Next thing you know I'll get sued because I recorded against a regular Windows 7 default backdrop.
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  • Profile picture of the author twstein86
    Or childish bickering works too.
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    • Profile picture of the author ForumGuru
      Banned
      Originally Posted by twstein86 View Post

      Or childish bickering works too.
      @ twstein86

      From what you have told us on the thread, and what you have told me in your PM it seems your best defense if you don't want to pay anything would be a fair use defense (if you have one).

      If your video is not commercial in nature, and the use is minor, with no trademarked properties, items, or logos being shown then you may be able to stand on that.

      This is NOT legal advice, and we are not privy to all the details so even some of the "non-legal" advice may be way off.

      Like Kay said, some will tell you to ignore them, others may tell you to make a small offer, and others will tell you to hire an attorney.

      I am not going to give you legal advice but you should research U.S. fair use doctrine and make a determination if you think it would fly in court.

      The company may rely on a demand letter to collect funds and never pursue anything in court or ask for a judgement, but speculating on that is only a guess.

      Since you have already made contact, and if I believed the use was fair use, I would probably communicate with them that the use was fair use and tell them to stick the settlement and see where it goes from there.

      Anyway, you can't get a lot of good advice here on the thread since nobody knows the details of your situation. On top of that, too many in the IM game think what you find on the net is yours to use. If you have an attorney that will take a look on the cheap, and it makes sense for you, then ask him or her if you don't want to play the fair use and/or ignoring game.

      Best of luck.

      -don
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  • Profile picture of the author ForumGuru
    Banned
    Some people seem to think they are authorities on the authorities... lol

    Cheers

    -don
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  • Profile picture of the author Jack Hunter
    Originally Posted by twstein86 View Post

    Got a notice today that I owed $600 + for recording a PC Repair video over 4 years ago and my desktop background was apparently a copyright image even though it was in the video for all of a few mins. I made the mistake of replying to these clowns. Even though I saw this thread

    http://www.warriorforum.com/main-int...used-blog.html

    It's still scary when I get these and I wanted advice. They replied nicely with that's fine I took it down, but I still owe money. I have taken the video off my site.
    I'm not going to read all the bickering so if anybody stated what I'll state now, oh well.

    They are copyright trolling you.

    You do not require proof. If its stock photo, chances are that you or somebody else could have bought license, used it on a website that was taken down, and now its on your new one. I have millions of images I've accumulated over 15 years, it would be crazy to keep track of licenses, so I mostly do not.

    They are not going to sue you, that letter is rather obviously designed to get you to 'settle'. They might mail out thousands of those in hopes few suckers bite.

    You should always IGNORE THEM. If you ever end up in court, you simply say "It must have went into spam box. I never saw it."

    If they are serious, and I'm yet to see one who is, after you ignore them they will contact your web host. Then you receive notice from web host to take it down, at which point, do so. If it does not reach that step, you have nothing to worry about.
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    • Profile picture of the author ForumGuru
      Banned
      Originally Posted by Jack Hunter View Post


      You do not require proof. If its stock photo, chances are that you or somebody else could have bought license, used it on a website that was taken down, and now its on your new one.
      The OP grabbed the image and used it as a desktop background. He then made a video and the image is included as the background in the video he made.

      I have millions of images I've accumulated over 15 years, it would be crazy to keep track of licenses, so I mostly do not.
      Not crazy at all. In-fact it is recommended.

      You should always IGNORE THEM. If you ever end up in court, you simply say "It must have went into spam box. I never saw it."
      He already replied them. FWIW, I don't think the spam box defense will always fly in court.

      If they are serious, and I'm yet to see one who is, after you ignore them they will contact your web host. Then you receive notice from web host to take it down, at which point, do so. If it does not reach that step, you have nothing to worry about.
      He already removed the video...

      That said, I have *made* people pay, in-fact some parties were glad to pay once they realized they were using an unlicensed stock image.

      In-fact in the past I have received checks from companies that "found" my images in places they were not supposed to be. I have no idea how they found the images, or if they collected fees from the infringers, but I cashed the checks and moved on. Nope, I had not hired those companies, and the checks did not bounce.

      Licenses are vital so you know what types of projects the images can be used in and if model releases are available etc. etc.

      Cheers

      -don
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  • Profile picture of the author Jack Gordon
    I am usually the first to say "don't ask legal questions on a forum, get a lawyer."

    In this particular scenario, though, a little self-lawyering goes a long way.

    Go here (if you haven't already) and read up on the scam: ExtortionLetterInfo: Fight Getty Images Settlement Demand Letters » Reporting on Getty Images Settlement Demand Letters

    Their whole game consists of threats and intimidation. They will not sue you. Ignore them and they will go away, eventually. They will send a bunch of hot air your way first though, because you are now in their "funnel"

    If they actually take it a step further, then you can lawyer up. But they won't, because that is not how this game is played.

    Withstand their assault for the next couple of years, and they will crawl back under their rock.
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    • Profile picture of the author StingGB
      Sorry, but I always makes me chuckle when I read threads like this from Americans sh*ting themselves over minor litigation issues.

      Here in the UK we tend to take a far more philosophical view.

      A few years ago I received a letter from a big London firm of lawyers because Yellow Pages claimed I was infringing their copyright with one of my ebook covers.

      I wrote back basically telling them to go f*ck themselves. I don't know whether they did, but I never heard from them again.
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