email from Leslie Burns

[iandouglas]

I've lurked on the forum here for a little bit and would love any input on this.

I got an email from Leslie Burns exactly two weeks ago, with a followup almost precisely 14 days later (today) at almost the exact same time. As a software developer, I recognize this as something akin to a marketing "drip" campaign. I haven't checked yet whether there was tracking data in the message or PDF file sent.

Attached you will find a letter regarding your infringing use of my client’s photograph. I encourage you to read the letter in detail and to seek the advice of your own copyright attorney or your business liability insurer prior to responding.

I look forward to working to a rational resolution with you or your representative.

Sincerely,
Leslie Burns

The initial letter included a PDF file of a claim from a "client" of theirs, about my use of a stock photo I'd found online and using on my Twitter profile. I removed it that day, and even filed a "copyright infringement" against myself on Twitter so Twitter would remove the image entirely from their servers, which they have done.

Funny enough, their "rational" resolution (mentioned in the email) demanded a $7,500.00 payment. They also addressed the PDF letter to me care of my employer's address, which I don't knowingly publish anywhere, so it seems they've done some minor amount of work to find that.

I have not, however, responded to the original email, nor the followup. I contacted an attorney who I'm working with on an unrelated matter, and that attorney did less than an hour's worth of work online to see that Burns was a copyright troll and recommended I ignore the letter.

Today's email:

Despite my previous email, I have not yet heard from you or anyone claiming to represent you in this matter. This is not something you should ignore. My client is making the effort, through me, to work this out without litigation; but, for that to happen, you must participate. We note that you have removed the work from use, but removal does not cure the infringement—it only stops it from being worse.

I understand that you may think this is some sort of spam email, but it is not. You can look me up on the California Bar website—my bar number is 276687, as seen on the letter you received with my last email. You can also investigate my website (link in sig) to confirm that I am legitimate. Finally, you can search the PACER.gov site for cases I have filed for my clients in federal court.

As for this matter and your liability, you may also be interested in reading this article (I have no relation to its author) as it deals with the realities of using images found online: https://www.tiltingthescales.com/2018/03/26/online-images-free-to-use/
I have no relationship to the author, by the way.

Please contact me as soon as possible to discuss settlement. If I do not hear from you in the next week, I will forward a print letter via USPS with tracking to confirm receipt.

PDF also included these bits:

(original artist name withheld) has hired this firm to handle the matter, including litigation if necessary, and he specifically requests that you do not contact him directly about this matter (although you may contact him to confirm that I represent him).

The PDF file included a screenshot of my Twitter profile showing the image, as well as the full Twitter URL of where the image was hosted.

This matter is ripe for settlement for the following reasons: (1) your use is indisputable (as seen above); (2) (artist name) has registered the copyright in the work (Certificate No. WITHHELD) and did so before the infringement; and, (3) copyright infringement is strict liability (1). In other words, there is no question about your liability here; the only issue left open is the amount of damages to be paid.

The (1) subnote contained this text:
(1) See, e.g., Educational Testing Service v. Simon, 95 F.Supp.2d 1081, 1087 (C.D.Cal.1999) (copyright infringement "is a strict liability tort").

I've searched for the Copyright Certificate they mentioned and found it at the Library of Congress, everything matches.

Please note that the amount above represents an offer of settlement but it doesn’t reflect the full damages that my client can and will seek in litigation, including attorneys' fees, as previously mentioned. If you do not accept this offer or if you refuse to negotiate reasonably, my client reserves his rights to seek the maximum available damages under the law—and those damages are, as explained previously, much greater than his offer.

And then some text about how I'm required to retain records of when/how I obtained the image (impossible, I have no recollection when/where I found the image), and this:

While we remain hopeful that we can resolve this dispute short of litigation, you must preserve the relevant data and comply with this notice during any settlement or other discussions or negotiations that we may have. Once this matter is settled (or after litigation, if necessary), the duty will end.

Thanks for any thoughts or advice.

[kingkendall]

Listen to your lawyer and do not respond to the emails.  The worst thing you can do is declare yourself and get put on the radar for further harassment.  Keep a file of what they send you. 

[iandouglas]

How do you know the copyright registration checks out?  It probably doesn't.

Burns provided a copyright registration number. I searched for it at Library of Congress, and it does exist, names the artist and the name of the piece, etc.

The "client" probably registered a picture of dog shit

No, but that's inconsequential. The photo is on the person's portfolio web site where you can order prints, a book, etc.. Artist is legit. Copyright is definitely in place.

How do you know the "client" hasn't been seeding the image to entice you to use it?

I don't think that's what happened here, I found the image years ago through a friend or family member posting a "hey, these are cool photos" on social media, and I grabbed a copy and used it. Didn't bother to look for copyright, etc.. I can't speak for the intentions of the artist if they put that photo in a collection to seed it or not, but what difference would that really make? Also, I can't remember when/how I obtained a copy, so I have no documentation around whether I've had the image longer than their copyright registration in the US.

Out the "client" who thought $7500 was a good idea for a f'ing image on Twitter

Who's to say that's the value they actually put on the image, or some "pull a number out of the air" that Burns has concocted? If it was on a business site or I were otherwise making money on the image, sure, but this was on my personal Twitter account where I post about technology-related content and volunteer my time to mentor others in the tech industry. I make $0 from Twitter.

I'd be curious, though, if someone were to anonymously contact the artist and ask for a quote on some of their work to see what their license fee actually would be.

any "client" who needs to scam people out of $7500 isn't a photographer or anyone with any talent to make anything that's actually worth anything at all

As previously noted, artist is legit and they have some really, really nice work now that I've looked into their work. They don't have a HUGE portfolio, but what they do have online is actually very tasteful photography.

[UnfairlyTargeted]

Whether the image is actually registered is not inconsequential.  It makes a difference.  If this so-called artist has falsely claimed the image is registered and it isn't actually in whatever number was provided to you, then they have no basis to make a claim for much of anything.  Maybe a few dollars.  Certainly not $7500.  These registrations are sloppy, especially if they are batches of images.  So it could be a registration full of dog shit pics.

Many trolls like the granddaddy of image seeders Tom Schwabel have a whole business model out of spreading images around the web and lie in wait to cash in on innocent people like yourself who just wanted to share an image.  It's way more common than you think and it's calculated and planned - they discuss it in photo sharing forums - how they hope people take their images so they buy fancy new lenses or in Schwabel's case, go on some fancy high-priced trip.  Unless the photo is some famous celebrity or done by Ansel Adams, it isn't worth more than a few dollars.  Go on any photo library and you'll find copies of similar images for a couple dollars. 

And I don't give a shit if they're legit, no image is worth more than a few dollars online and this ass should be ashamed of himself for asking that amount for your personal twitter.  The correct thing for him to do was send you a note to take the image down, no bad feelings.  Maybe if it was used in Apple's homepage logo, you could ask that much.  Maybe.  But even then doubtful.

I hope to hell you don't fork over any money.  I mean what a f'ing asshole.

[DavidVGoliath]

It's way more common than you think and it's calculated and planned - they discuss it in photo sharing forums - how they hope people take their images so they buy fancy new lenses or in Schwabel's case, go on some fancy high-priced trip.

I'm calling bullshit on your blanket assertion: point me to any photo sharing website where folk explicitly state that they share their images widely with that intent. I'll wait.

no image is worth more than a few dollars online and this ass should be ashamed of himself for asking that amount for your personal twitter.

I personally have licensed single images for use on Twitter for north of €1500, and I know several of my peers have garnered similar licenses from clients who want to use their work on Twitter, Facebook or other similar platforms.

The correct thing for him to do was send you a note to take the image down, no bad feelings.

Copyright is a property right. Consider: if you owned several houses for the purpose of renting them out as vacation homes, and someone made use of your property without your knowledge or permission, would you take the same laissez-faire attitude?

[DavidVGoliath]

I have not, however, responded to the original email, nor the followup. I contacted an attorney who I'm working with on an unrelated matter, and that attorney did less than an hour's worth of work online to see that Burns was a copyright troll and recommended I ignore the letter.

That's really, really bad advice from your attorney. I know a guy who hired Leslie Burns a few years back when she was one of the lawyers at the PhotoAttorney practice, and they ended up asking Burns to file suit because the infringer had ignored all their attempts to communicate. The picture had been removed from the web, so it was clear that the first letter had been read.

The other thing that I clearly remember is that, in this specific case, the infringer was actually an attorney themselves; I know from a web chat with the photographer that the attorney had consulted a lawyer who told them to ignore the claim.

I know that the suit wound up in favour of the photographer, but I don't know the specifics of it, being that it was about four or five years ago. I'll drop them a line and see if there's anything that they can tell me about it, though I do know that sometimes there are confidentiality clauses with these things.

[Ethan Seven]

Apparently, Unfairly Targeted was so aggrieved by a claim by Tom Schwabel that he now writes with more passion than he does wisdom or knowledge. 

As much as Unfairly Targeted may wish it were not the case, Copyright claims can have very significant damages even if the image was not timely registered.  The photographer can recover lost licensing revenue and a disgorgement of profit, which it sounds like there probably isn’t any profit generated on a personal twitter posting. 

Seeding is highly unlikely.  It is also next to impossible to prove and does not give rise to any defense to copyright infringement.  At best, it might mitigate damages.

From what I can tell, demand amounts created by copyright holders are a bit arbitrary, but so are the amounts that judges award.  There is no precise formula that either follow.  That being said, a plaintiff who rejects a reasonable pre-litigation offer can look bad in court.  The same is true for defendants who reject reasonable offers. 

In NY, courts typically award 3 to 5 times the licensing fee when calculating statutory damages.   CA, which is in the 9th Circuit, has no such multiplier that I am aware of, but they tend to be very pro-copyright holder; it is the home of Hollywood after all.   

For what it is worth, In the few months I have been following this stuff, I have not heard of copyright holders pursuing non-commercial social media postings.   It seems odd.   

It is good you have an attorney.  Leslie Burns is only admitted to practice law in CA. Your attorney can explain how that fact, your location, the copyright holder’s location and that state’s longarm statute can impact the odds of the claim going to litigation. 

[iandouglas]

It is good you have an attorney.  Leslie Burns is only admitted to practice law in CA. Your attorney can explain how that fact, your location, the copyright holder’s location and that state’s longarm statute can impact the odds of the claim going to litigation.

Copyright holder is from Canada, for what it's worth, but did register the photo in the US. I currently live in Colorado. My attorney suggested that I not reply at all, but now I'm second-guessing that.

[DavidVGoliath]

On account of treaties such as WIPO and the preceding Berne Convention, it doesn't matter where you live with respect to where the copyright holder lives: all they need to do is retain counsel in *your* country to bring initiate a legal claim and/or file an action with the courts. On that note, a lawyer in any state can contact you to make a claim on that person's behalf but, if they actually want to take you to court, they have to do so in a relevant jurisdiction i.e. one where you have either personal residence or business interests. Out-of-state lawyers often partner with in-state lawyers, or they can obtain pro hac vice admissions if the particular state allows it.

[UnfairlyTargeted]

My point is you can't trust these trolls.

In the case of Tom Schwabel, the image he tried to extort me with was a copy of a common image in most every photographer's portfolio, one that was freely available on hundreds of sites.  And his specific image?  It is on 22 BILLION websites.  How did it get there?  Easy!  He seeded it there.  Intent to protect copyright has to be accounted for.  If someone is out spreading their copyrighted work around with intent to cause people to use it, seems the courts should not find that infringement has occurred.

Do your research on the "photographer" making the claim before you think of replying.  You might be surprised by what you find.

[DavidVGoliath]

Do your research on the "photographer" making the claim before you think of replying.  You might be surprised by what you find.

We were discussing photographers in general - not your spat with Tom Schwabel. As to the former, you said the following

"Many trolls... have a whole business model out of spreading images around the web and lie in wait to cash in on innocent people like yourself who just wanted to share an image.  It's way more common than you think and it's calculated and planned - they discuss it in photo sharing forums"

That's a bullshit claim. I've asked you to point to any photo sharing forum where this kind of honeytrap is discussed, and I'll not hold my breath for such evidence.

In the case of Tom Schwabel, the image he tried to extort me with was a copy of a common image in most every photographer's portfolio, one that was freely available on hundreds of sites.

I'm curious as to what kind of photograph/image you're talking about because it sounds like you're alluding to similar images being commonly displayed on the portfolios of other photographers. A link/example would help here.

And his specific image?  It is on 22 BILLION websites.

That's a very bold claim. Again, I'd love to know which picture of Schwabel's it is which you're claiming to be in use on 22,000,000,000 websites.

How did it get there?  Easy!  He seeded it there.

Even the site owners and admins here will tell you that seeding, even if suspected, is nearly impossible to prove. I can't conceive of any photographer that would want to run the risk of using such a strategy because once found out, they would (deservedly) face severe legal consequences.

Intent to protect copyright has to be accounted for.

The law as currently written, and some court cases, more or less state that the responsibility is to not infringe, rather than for a copyright owner to guard against being infringed upon. Consider that reverse image search technologies were not widely used until just a few years ago. Also, for a reverse search algorithm to return a match, it has to have data on both the image you're searching for and already have indexed the same photograph elsewhere on the web.

Because reverse-searching is thus subject to these variables, a photographer might only now discover an unlicensed use from ten years ago. In the US courts, that would still be an actionable claim, since you have three years from the date of discovering an infringement to bring a court action.

If someone is out spreading their copyrighted work around with intent to cause people to use it, seems the courts should not find that infringement has occurred.

On this, we mostly agree. It would still be an infringement in the strictest sense but, depending on the specifics, a judge might well toss the claim, or worse. Any photographer that deliberately sets out to create a honeytrap should face stiff legal consequences for doing so if proven.

[UnfairlyTargeted]

This image.
https://fineartamerica.com/featured/japanese-garden-tom-schwabel.html
25.7 billion matches.  My apologies for being wrong on the number.

Search for japanese garden maple and you'll find a few thousand almost identical images taken by everyone and their grandmother.  I stopped scrolling after the first few pages.

[UnfairlyTargeted]

And for not thinking of photographers who would conceive of such things, well criminals are conceiving of new things all the time, so I'd be no surprise that a guy who's done some time would be doing something like that.  Isn't interesting what you find on the internet sometimes?

[Robert Krausankas (BuddhaPi)]

This image.
https://fineartamerica.com/featured/japanese-garden-tom-schwabel.html
25.7 billion matches.  My apologies for being wrong on the number.

Search for japanese garden maple and you'll find a few thousand almost identical images taken by everyone and their grandmother.  I stopped scrolling after the first few pages.

That is an iconic landmark, that is constantly photographed..it may look like a copy of many others, and it is very similiar, but it is original in the legal sense... artist travels here, with his own equipment, determined what settings to use, then did work in post, making it his original image.it's not surprising you see this number or results.. I'd be willing to bet you get similar results for the statue of liberty.. I'm not defending the artist, but your argument seems flawed to me.

[Matthew Chan]

My comments inline...

As much as Unfairly Targeted may wish it were not the case, Copyright claims can have very significant damages even if the image was not timely registered.  The photographer can recover lost licensing revenue and a disgorgement of profit, which it sounds like there probably isn’t any profit generated on a personal twitter posting. 

Agreed. Legal issues aside, I would say that most decisions come down to the core questions:  "Is it worth the cost/expense/hassle of filing suit? Is it worth the small amount of negative exposure to the plaintiff to file a lawsuit? (public matter, small risk of countersuit, a protracted battle, etc.)  And even if a lawsuit is filed and assuming a judgment in favor of a plaintiff, is it collectible?

Seeding is highly unlikely.  It is also next to impossible to prove and does not give rise to any defense to copyright infringement.  At best, it might mitigate damages.

Seeding might occur in some cases but as a whole, I do not subscribe to the idea that there is a rampant conspiracy to seed their own images so that they can cash in on "catching" victims. Also, I don't really think it is quite that easy to "seed" the Internet with images unless they are "special" in some way.  I can post several photos I took of various items, places, and people in hopes it would be copied. But unless my photos were "special" in some way, I don't think I could PAY anyone to pirate most photos I have taken much less have it freely used!  I would starve to death attempting to "seed" any images I have and then waiting for someone to copy/pirate them for their websites!  I would say that there is a lot of piracy by anonymous, unscrupulous website owners that have their web hosts overseas. These are the sleazy operators who "seed" images by claiming they have "free desktop wallpapers".

From what I can tell, demand amounts created by copyright holders are a bit arbitrary, but so are the amounts that judges award.  There is no precise formula that either follow.  That being said, a plaintiff who rejects a reasonable pre-litigation offer can look bad in court.  The same is true for defendants who reject reasonable offers. 

"Reasonable offers" is highly subjective and highly dependent on circumstance and how skilled a person is in arguing for "their number".

It is good you have an attorney.  Leslie Burns is only admitted to practice law in CA. Your attorney can explain how that fact, your location, the copyright holder’s location and that state’s longarm statute can impact the odds of the claim going to litigation.

Leslie is generally not a litigator based on what I know. We knew about her clerical/paralegal work assisting PhotoAttorney a few years back.  She only became a lawyer fairly recently.  I see no evidence of her actually being a skilled litigator in a courtroom. I am not saying she couldn't get the job done in some simple situations.  But I would be shocked if any large concern would actually use her for a litigation-heavy case.  Sending out mailed and emailed extortion letters and attempting to collect is one thing. But for her to start habitually filing lawsuits against parties to actually win and successfully collect cash against defendants is a whole different animal.

As far as I am concerned, she ain't no Oscar Michelen.  Compare Oscar Michelen's extensive legal history in the courtroom in different cases in different venues.  In an earlier life, Oscar was also a former assistant prosecutor in NY as well. Oscar is still a a criminal defense attorney as well as an IP lawyer. He does these high profile exonerations on the side which has nothing to do with the ELI stuff but it is still impressive to read about. Oscar has also prosecuted IP cases as well as defended them. And once in a great while, he will do a First Amendment/free speech case having friends like the distinguished Eugene Volokh at his side!