Received a Masterfile / My web designer is stating they are not responsible

[vvollmer]

Thank you for this website, and I did make a donation as I know it will continue to be helpful to me and the unfortunate victims to follow. I am frustrated because I used a legitimate business in the state of California, not a company abroad.

My questions are for the state of California:
I had my website redesigned and paid more than 6K. Became live on 3/1/2010.

After that point my web designer became difficult to get a hold of. June 2010 I needed some updates. No returned phone calls, emails, etc. I go to their offices and they moved - no forwarding address, etc.

Finally get a hold of them and it is done. From June 2010 - until this happened, it is very difficult to do business with them. Any updates, communication is always by text or email.

September 1, 2011 I receive a certified letter from Masterfile, http://www.masterfile.com/, stating that I have copyright infringement on my site, and they send me documents of my site with the photo… and want to be paid $2,800.00, by September 13, 2011.

I call my web designer and he said he will look into in. As them to remove the photo in question. I fax him what I received in the mail.  The designer says that since they moved offices things are in storage, he has to go look for it.   

Photo is removed one week later.

I talk with masterfile, let them know that the web designer will be calling, and hope we can get this resolved. The web designer sends me an email and they gave an extension to September 19th.  I try to communicate with web designer asking for the status on the 7, 12, 15, 21, 22, 23, nothing.

I left a message on Sept. 24, 2011 at masterfile saying I’m working on it. My designed keeps saying they are trying to find it.

On November 1, 2011 - I do remove the website to another company as doing business with them is very difficult and the lack of response is terrible.

Received an email letter on Nov. 30, 2011, they are  Rescinding of Retroactive License.

I reply to Mastefile, kindly, and tell them I am still working on finding the documentation, and mention that I see the photo is priced at $340.00, and the demand for a payment request for $2,220.00 is based on a retroactive license fee. I ask what dates they are using to base this fee on. I have not heard back.

Meanwhile , I email the designer and hear nothing, so I send a demand for payment, asking for the $2,220.00, or I will take them to small claims court. I received an email stating: In regards to the costs of the image in question. Images for your web site was not part of our agreement or responsibility. That being said, we are willing to discuss an amicable solution with you.

The following day I receive a letter with highlight portions of our contract stating they cannot be sued: Indemnifications / hold harmless / limitation of liability...

I would like to file a claim in California small claims court since
A: I have not heard back from masterfile and do not know if there amount will change.
B: This seems to be the only way I can get the web designer to respond in a timey matter

My question is: Contractual agreements cannot supersede a law, and while as the end user I have responsibility, does anyone have input – do I have a leg to stand on, and can  you feel I can still get some type of payment from the web designer?

[Robert Krausankas (BuddhaPi)]

Was the contract that was sent to you and highlighted in fact signed by you when you hired them on? If so then it sounds like you might be on the hook for this one. I doubt small claims court would help you any.. Now if this was not part of the original contract of which you should have a copy of, and they added it later, you would be in good position. The stance the stock image companies take is chase down the domain owner, s ultimately they are responsible. It has been mentioned before about settling the claim with Masterfile, then filing suit against your development company. The sticking point is the contract...

As a business owner / developer I have also added a hold/harmless clause in my contracts, HOWEVER I also require my clients to supply all images and it is explained and also in the contract  before signing the risk's of not properly licensing images. This is purely to protect me from them coming back at a later date with issues.

[vvollmer]

Thank you - My questions is also, that a contact cannot superceed a law, so if a company uses a stock photo, should they have proof that they used it A: for free or B; that they paid a fee.

I do know that I am responsible in the end. I wish I could do that in my business - "too bad client, you signed off and we did something we shouldn't have!"

I am trying to find all my past emails, as when they first send my web site there were so many stock photos, so I immediately resent them more of my own photos. I asked them to remove the stock photos, and of course I am sure I cleaned up my emails.

[Jerry Witt (mcfilms)]

Frankly I am disappointed to hear that the developer did not step up and assist you. I think you will have to sue him in small claims court for the full amount. I also wouldn't be shy about identifying this developer, because that behavior is totally unprofessional.  If you decide to go that route, I guess the best course of action would be to advise MF that is what you intend to do. Ask them for proof that they have registered the images and ask them for details on how they arrived at this price. (It would also be worth it for you to double check if these images are available from them or else where as "royalty free" and not "rights managed.")

As much as I deplore some of the tactics the stock companies are using, web developers that leave clients' totally holding the bag are even worse.

[SoylentGreen]

It sounds to me as if the development company that you're dealing with is closing shop/closed up shop.
If the corporation is out of business, you won't be able to get anything from them.

The fact that there's no forwarding address and they're difficult to get in contact with might mean that several of their clients have infringement claims against them.
If they used stock photos that they didn't pay for on your site, they probably did that with many other sites.
MF would think of this also, and check all of their other sites if they could.

Something to check out before you give in and pay.

S.G.

[Jerry Witt (mcfilms)]

vvollmer -- You say you moved the files. Does this mean that the previous developer was hosting the files at a site he set up and was charging you for hosting? If that's the case, maybe a way to play this is to tell MF that you did not put up the files and you did not own the account that was hosting said images. The standard stock company line is "infringement ultimately falls on the party displaying the imagery which is considered the end user." You could fight them saying THEY were the ones who put the images up (or displayed them). All you did was point your domain to an account they created. As such, they need to take this issue up with the company that hosted the site.

They will send a letter telling you that you are the one responsible, but this may be a way to fight them. I don't know if this concept has been tested in court.

[Lettered]

Thank you - My questions is also, that a contact cannot superceed a law, . . .

I would persue this question further with a lawyer (which I am not). You might try looking into some topics such as "duty of care" (there could be others), but ultimately, in your situation, I think I would likely be trying to find a lawyer to put this squarely back in the lap of the web designer.

http://en.wikipedia.org/wiki/Duty_of_care#United_States

EDIT:  Also have a look at "Are Limitation of Liability Clauses Enforceable?" in the following link:
http://www.terrarrg.com/images/pdfs/DraftingLoL.pdf

before  you get discouraged about the part where is says limitation of liability clauses have been upheld in Ca , have a look at the caveats (especially the first and third).

Of course, as SG pointed out, if they close up shop you might not get anything from them.

Good luck.

[Scamwarrior]

Hello
Maybe he cant sue all the 10000000 of people he sent the famous extorsive  threaten letter
in my case he asked me 2000 and If I don't pay will be 150,000
my lawyer says this type of claims are not more of U$S 200
The thing the people become scared, worst thing ever
We are already asking and telling the U.S. Copyright Office
101 Independence Ave. S.E. Washington, D.C. 20559-6000
(202) 707–3000 or 1 (877) 476–0778 (toll free)

There too much probe here on internet that shows he is an extorsive scammer. Also we got from another person chatting a little piece scrop of soybeans pic, who will guess that was a part of an 'art piece;?
everything here is measure, he does this to take as much with fear....
You should go to the court and the saying he is threaten you....
we sent to him an email asking for his attorney contact
also saying that we know he is Master and now Artist Defense and we copy some details from internet talking about his scamming methods
he signs as officer employee JA!
He started with new tactics
We need to spread internet advising on it
one day he will find a bad end .....