Copyright infringement - repeat offender

[Katie Fitch]

Jurisdiction

US Federal Law

I settled with a copyright infringer, a medium sized company, for $15K. Now a year later, I have again caught them using my same registered copyrighted image to sell a competing product, and it was very likely ongoing ever since the settlement. What is a reasonable settlement this time for a repeat offender? They did not admit any wrongdoing or promise to stop infringing in the first settlement agreement, so it's not breach of contract.

Some of my registered copyrighted images - which do not have watermarks - have been used by competitors who have ADDED their watermark to the images. Does adding a watermark equate to altering CMI under the DMCA? (with the corresponding $2,500-25,000 penalty) Or is it only removing/changing an existing watermark that is considered altering CMI?

 

[adjusterjack]

With the kind of money involved you should probably have a lawyer go after these people.

 

[zddoodah]

What is a reasonable settlement this time for a repeat offender?

That depends. What damages have you suffered? What profits can you prove that the infringer has earned as a result of the infringement?

With the kind of money involved you should probably have a lawyer go after these people.

Concur.

 

[Katie Fitch]

That depends. What damages have you suffered? What profits can you prove that the infringer has earned as a result of the infringement?



Concur.

I asked the question about watermarks because I've consulted two IP attorneys, and they gave opposite answers. One said adding a watermark to an image is certainly altering CMI; the other said it absolutely is not.

 

[flyingron]

I'm siding with the ones that say it is. You didn't say what the watermark is, but I suspect it had your name (or company's name) in it. That is "The name of, and other identifying information about," the author or copyright owner.

 

[Katie Fitch]

I asked the question about watermarks because I've consulted two IP attorneys, and they gave opposite answers. One said adding a watermark to an image is certainly altering CMI; the other said it absolutely is not.

Just to be clear: my images had no CMI; they were then copied and posted on a competitor's website with the competitor's company name added to the images as a watermark

 

[flyingron]

Well, dishonest as that is, it's not illegal to add stuff to the image. You'll need to just pursue the infringement.

 

[zddoodah]

You didn't answer the questions I asked.

 

[Katie Fitch]

You didn't answer the questions I asked.

I'm sorry, I thought I did answer your question. The competitor added a watermark of their company name to my image and posted it on their website. And in addition to that, I just noticed that they (falsely) added their name as the author and copyright holder in the image metadata properties. I would have thought that's a clear example of falsifying CMI?

 

[zddoodah]

I'm sorry, I thought I did answer your question. The competitor added a watermark. . . .

I didn't ask anything about the watermark. My questions were as follows:

What damages have you suffered? What profits can you prove that the infringer has earned as a result of the infringement?

 

[Michael Wechsler]

There is no question about the infringement. As to altering copyright management information, this law firm states that the presence of a watermark is CMI. Looking at the second article, it would seem to support the conclusion of the lawyer which states that adding a false attribution to a photo can be considered an alternation of CMI. As is always the case, this is not considered legal advice and certainly not a substitute for a proper consultation with an attorney.

How to Use Watermarks and Metadata to Combat Online Infringement
Company cannot avoid DMCA liability for false CMI by claiming it used its own name
Define Your Terms: What Do the Phrases "Copyright Management Information" and "In Connection With" from Section 1202 of the Digital Millennium Copyright Act Mean?