I am one of several writers who participate in a creative writing blog where we are given 2 images to inspire a short story. No one receives monetary compensation from these stories. The images are submitted by every author and then randomly distributed by the operator of the site. About 4 days ago, the person who operates our site received the following email.
Unauthorized Use of Aaron Reed Photography Image
Reference Number 2012-2-10
It has come to my attention that you are using an image (or images) copy written by Aaron Reed & Aaron Reed Photography for online promotional purposes without a valid license for use of the image(s). This image is on a writing contest website that you own or operate, week 84. It is image #2 which is an image of mine and even still has my signature there. Please take this seriously and make arrangements to pay this licencing fee within 7 days. I have discounted my usual licensing fee by 75% in an effort to help you out.
As you may know, use of an image without a valid license is considered copyright infringement in violation of Title 17 U.S.C.S., the Copyright Act of 1976. Included in this notice is a demand representing a settlement that I, (Aaron Reed) would expect to receive for unauthorized use of the image(s) when no license exists as in this case.
The following action must be taken within 7 days of the date of this notice:
· You must cease & desist use of the image(s). In addition, payment for the attached demand amount must be received within 7 days of the date of this letter. Ceasing use of the image(s) does not eliminate liability for payment of fees due.
· If you desire continued use of the image(s) an additional license fee must be
paid in addition to this settlement demand.
I (Aaron Reed) am committed to investigating licensing infractions in order to protect my interests in my copy written work. I must enforce these licensing conditions rigorously and feel that your cooperation regarding this matter should be promptly forthcoming. This letter is without prejudice to the rights of Aaron Reed and Aaron Reed Photography, all of which are expressly reserved.
The total amount due for this copyright infringement is $100.00 USD
I (Aaron Reed) understand that a third party designer, former employee or intern may have been contracted to design your website, however the liability of any infringement ultimately falls on the person or company (end user) who did business with this third party. Claiming that you were unaware that an image license was needed does not excuse you from unauthorized use, nor does it relieve you from the obligation to pay the demand amount to settle this claim of copyright infringement.
As the end user of my imagery, you are ultimately responsible for insuring that you (or your company) has obtained the appropriate rights to use said imagery.
A screenshot of this violation and the image in question has been attached to this email and will be held on record should failure to pay this demand result in further legal action being required.
Payment of this settlement can be made via PayPal either directly by using the send money feature and my PayPal email address, (@) by cashier's check, money order or through direct billing should you require or request an invoice in order to make payment.
Failure to meet this settlement demand to rectify the violation as described above will result in this matter being turned over to the attorney representing Aaron Reed & Aaron Reed Photography and more substantial damages will be sought should this be necessary along with any and all legal fees compiled during this process.
Reference Number 2012-2-10
Case Number 4451
Total Due upon Receipt: Image Price: $100.00 USD
The operator of the site removed the image immediately and emailed the photographer back in regards to the licensing demand. He emailed her back with a counter offer of $75.00 but refuses to let the matter drop. Because I was the one to submit the image after finding it on Tumblr, she asked me to contact the photographer.
This is my email response to the photograher:
Dear Sir,
It has come to my attention that you are demanding licensing money for an image that I submitted for use in a non- commercial and non- contest website.
I have gone through all 731 images on your Flickr account (http://www.flickr.com/photos/sicalufakiss/sets/) and on your professional website. I have yet to find an image that exactly matches the one posted. The closest I can find is "The Rise Of Mt Shuksan" (http://www.flickr.com/photos/sicalufakiss/5837467707/in/set-72157626897075879/) on Flickr. Of the 168 images your professional site, "Fire and Ice" is also very similar but, once again, not the exact image. I also went through the 79 images on your 500px account. Once again, the closest image was "Slow Burn". None of these images have the correct fog or foliage type and density that the image posted on the Picture Prompt website has.
After it was mentioned, I did see the copyright mark, but I believe that the image has be manipulated, therefore we do not owe you a licensing fee. If anyone owes you a licensing fee, it would be the original person who manipulated the image and posted it, from which over 200,000 (from a Google image search) has re-posted the image in various locations including Tumblr, where I retrieved the image from.
Under Fair Use Copyright Law, there are four factors that must be considered. They include:
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
For the first factor, to justify the use as fair, one must demonstrate how the use either advances knowledge or the progress of the arts through the addition of something new. Since the website is original creative writing that is inspired by an image, that would count as advancing the progress of the arts through the addition of something new.
The second factor determines if an item is public domain or not. In this case, your image is on considered public domain, however, the manipulated image might be.
The third factor assesses the quantity or percentage of the original copyrighted work that is being used in to the new work. In a 2008 US Ninth Circuit Court ruled that using smaller images of a copyrighted image was "sufficiently transformative, noting that the images were not meant to be viewed at high resolutions like the original artwork." They also stated that normally making a "full" replication of a copyrighted work may appear to violate copyright, and found the use of the work to be reasonable and necessary in light of the intended use.
The fourth factor measures the effect of the alleged infringement has had on the copyright owner's ability to exploit the original work and if the use of the copyrighted work would harm the potential market value of the original. For this factor, the burden of proof rests on the copyright owner to prove with empirical evidence that the use has negatively impacted their business regarding the copyrighted material. Since there is no image on any of your public online albums that exactly match the image in question, and you have yet to prove that it is your image beyond the copyright notation on it, we are not harming anything. Even if it was the exact image, our use of it would not negatively impact your business in anyway. If we were selling the image or using it to promote our own business, that would be negatively impacting your business. But since we are just a group of writers with a small following using the images as inspiration, there is no impact on the market value of that image.
His very unprofessional response to my email:
Lol!!!!! That is the dumbest response I have ever heard. I guarantee and can prove in a court of law that the image you are using is one I posted online, completely unaltered by anyone but me. The image you are using is Fire & Ice. Just because the person who originally stole it has posted a smaller darker image is meaningless. It matches my image pixel for pixel. The plants in the foreground argument was easily the funniest thing I have ever heard. Do you think I photoshop plants??? Lol!!! I have photographed those plants there for the last 4 years and have more than 200 images of them. Yeah, they aren't there!!! Lol! I tried to make you both a fair offer, I even tried to cut you a deal. Now I am just going to turn this over to my attorney and we will see who is right and who is wrong. Just for fun I am going to repost this silly email on the Internet to get a few laughs at your expense, after I change a couple words and photoshop in a few plants of course. You will be contacted by my lawyer next. We will have no further communication. Have a great night.
In a second email, he did finally send a link to the actual image. I emailed him and apologized for thinking the image was manipulated but I spent over 3 hours on his sites and never once saw the original image. Due to the size of the image and the way the copyright watermark was implemented, it is hard to see unless someone points it out.
I would like to know what our options are at this point. I found this site after everything was set in motion. I agree that we should have just ignored the email bc it was not a legal document. I still believe that we are covered by Fair Use. Am I wrong in that belief and should we be liable for paying this licensing fee demand?
Thank you for your input!
Unauthorized Use of Aaron Reed Photography Image
Reference Number 2012-2-10
It has come to my attention that you are using an image (or images) copy written by Aaron Reed & Aaron Reed Photography for online promotional purposes without a valid license for use of the image(s). This image is on a writing contest website that you own or operate, week 84. It is image #2 which is an image of mine and even still has my signature there. Please take this seriously and make arrangements to pay this licencing fee within 7 days. I have discounted my usual licensing fee by 75% in an effort to help you out.
As you may know, use of an image without a valid license is considered copyright infringement in violation of Title 17 U.S.C.S., the Copyright Act of 1976. Included in this notice is a demand representing a settlement that I, (Aaron Reed) would expect to receive for unauthorized use of the image(s) when no license exists as in this case.
The following action must be taken within 7 days of the date of this notice:
· You must cease & desist use of the image(s). In addition, payment for the attached demand amount must be received within 7 days of the date of this letter. Ceasing use of the image(s) does not eliminate liability for payment of fees due.
· If you desire continued use of the image(s) an additional license fee must be
paid in addition to this settlement demand.
I (Aaron Reed) am committed to investigating licensing infractions in order to protect my interests in my copy written work. I must enforce these licensing conditions rigorously and feel that your cooperation regarding this matter should be promptly forthcoming. This letter is without prejudice to the rights of Aaron Reed and Aaron Reed Photography, all of which are expressly reserved.
The total amount due for this copyright infringement is $100.00 USD
I (Aaron Reed) understand that a third party designer, former employee or intern may have been contracted to design your website, however the liability of any infringement ultimately falls on the person or company (end user) who did business with this third party. Claiming that you were unaware that an image license was needed does not excuse you from unauthorized use, nor does it relieve you from the obligation to pay the demand amount to settle this claim of copyright infringement.
As the end user of my imagery, you are ultimately responsible for insuring that you (or your company) has obtained the appropriate rights to use said imagery.
A screenshot of this violation and the image in question has been attached to this email and will be held on record should failure to pay this demand result in further legal action being required.
Payment of this settlement can be made via PayPal either directly by using the send money feature and my PayPal email address, (@) by cashier's check, money order or through direct billing should you require or request an invoice in order to make payment.
Failure to meet this settlement demand to rectify the violation as described above will result in this matter being turned over to the attorney representing Aaron Reed & Aaron Reed Photography and more substantial damages will be sought should this be necessary along with any and all legal fees compiled during this process.
Reference Number 2012-2-10
Case Number 4451
Total Due upon Receipt: Image Price: $100.00 USD
The operator of the site removed the image immediately and emailed the photographer back in regards to the licensing demand. He emailed her back with a counter offer of $75.00 but refuses to let the matter drop. Because I was the one to submit the image after finding it on Tumblr, she asked me to contact the photographer.
This is my email response to the photograher:
Dear Sir,
It has come to my attention that you are demanding licensing money for an image that I submitted for use in a non- commercial and non- contest website.
I have gone through all 731 images on your Flickr account (http://www.flickr.com/photos/sicalufakiss/sets/) and on your professional website. I have yet to find an image that exactly matches the one posted. The closest I can find is "The Rise Of Mt Shuksan" (http://www.flickr.com/photos/sicalufakiss/5837467707/in/set-72157626897075879/) on Flickr. Of the 168 images your professional site, "Fire and Ice" is also very similar but, once again, not the exact image. I also went through the 79 images on your 500px account. Once again, the closest image was "Slow Burn". None of these images have the correct fog or foliage type and density that the image posted on the Picture Prompt website has.
After it was mentioned, I did see the copyright mark, but I believe that the image has be manipulated, therefore we do not owe you a licensing fee. If anyone owes you a licensing fee, it would be the original person who manipulated the image and posted it, from which over 200,000 (from a Google image search) has re-posted the image in various locations including Tumblr, where I retrieved the image from.
Under Fair Use Copyright Law, there are four factors that must be considered. They include:
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
For the first factor, to justify the use as fair, one must demonstrate how the use either advances knowledge or the progress of the arts through the addition of something new. Since the website is original creative writing that is inspired by an image, that would count as advancing the progress of the arts through the addition of something new.
The second factor determines if an item is public domain or not. In this case, your image is on considered public domain, however, the manipulated image might be.
The third factor assesses the quantity or percentage of the original copyrighted work that is being used in to the new work. In a 2008 US Ninth Circuit Court ruled that using smaller images of a copyrighted image was "sufficiently transformative, noting that the images were not meant to be viewed at high resolutions like the original artwork." They also stated that normally making a "full" replication of a copyrighted work may appear to violate copyright, and found the use of the work to be reasonable and necessary in light of the intended use.
The fourth factor measures the effect of the alleged infringement has had on the copyright owner's ability to exploit the original work and if the use of the copyrighted work would harm the potential market value of the original. For this factor, the burden of proof rests on the copyright owner to prove with empirical evidence that the use has negatively impacted their business regarding the copyrighted material. Since there is no image on any of your public online albums that exactly match the image in question, and you have yet to prove that it is your image beyond the copyright notation on it, we are not harming anything. Even if it was the exact image, our use of it would not negatively impact your business in anyway. If we were selling the image or using it to promote our own business, that would be negatively impacting your business. But since we are just a group of writers with a small following using the images as inspiration, there is no impact on the market value of that image.
His very unprofessional response to my email:
Lol!!!!! That is the dumbest response I have ever heard. I guarantee and can prove in a court of law that the image you are using is one I posted online, completely unaltered by anyone but me. The image you are using is Fire & Ice. Just because the person who originally stole it has posted a smaller darker image is meaningless. It matches my image pixel for pixel. The plants in the foreground argument was easily the funniest thing I have ever heard. Do you think I photoshop plants??? Lol!!! I have photographed those plants there for the last 4 years and have more than 200 images of them. Yeah, they aren't there!!! Lol! I tried to make you both a fair offer, I even tried to cut you a deal. Now I am just going to turn this over to my attorney and we will see who is right and who is wrong. Just for fun I am going to repost this silly email on the Internet to get a few laughs at your expense, after I change a couple words and photoshop in a few plants of course. You will be contacted by my lawyer next. We will have no further communication. Have a great night.
In a second email, he did finally send a link to the actual image. I emailed him and apologized for thinking the image was manipulated but I spent over 3 hours on his sites and never once saw the original image. Due to the size of the image and the way the copyright watermark was implemented, it is hard to see unless someone points it out.
I would like to know what our options are at this point. I found this site after everything was set in motion. I agree that we should have just ignored the email bc it was not a legal document. I still believe that we are covered by Fair Use. Am I wrong in that belief and should we be liable for paying this licensing fee demand?
Thank you for your input!
