CPM Legal Settlement Demand Lettter on Behalf of Hawaiian Art Network

[Robert Krausankas (BuddhaPi)]

I would also appears, that the registration sent with the letter may be for a collection /compilation of photos, I'd have to go back and refresh my memory, but isn't there sometimes an issue with this in relation to the Muensch case??

[Jerry Witt (mcfilms)]

Jeeze... That skunk image is EVERYWHERE on the net. I thought it was interesting that this page claims different people hold the copyright:
http://www.saveauburntrail.org/mammals

This page watermarks the image: http://prodam.slando.com.ua/kiev_city/skuns_P_34839539.html

It's available on the site http://pixdaus.com/?fun=about. They imply that the images are uploaded for all to share. There is a mechanism for rights holders to notify them if an image doesn't belong there. Do you think HAN used it?  I doubt it.

The same is true of http://www.dailypictures.info/free-pictures/3158/Skunk-Babies-jpg. That site basically says "Free Pictures" all over it.

Milosron I hope you are encouraged by all this and will feel free to tell Christian Martinens to pound sand.

My reply would be along the lines of: Due to the prevalence of the image on literally hundreds of web sites, some of which offer the image for free and some which claim they own the copyright, you were led to believe that the image was in the public domain. Although you support artists' rights to get paid for their work, you will not be held hostage by an exorbitant claim. Similar images are available from micro stock companies for less than $10 and you are unwilling to pay even that until it is proven that H.A.N. either holds the copyright for the image they are claiming to represent or they can provide a chain of title showing how it is that they came to represent this image. Furthermore, it is of the utmost importance Mr. Christian that you notify your client, HAN, and let them know that further contact will require you to retain legal council and HAN will be responsible for all fees related to this."

That's basically what I'd tell him.

[Matthew Chan]

Oscar,

I was thinking to myself that presenting a new case or extortion letter to the ELI Community is like feeding fresh meat to the sharks.  It didn't take long for them to tear this case apart and analyze it from top to bottom.  Oh, did I forget to mention it was only Day 1?  LOL.

You guys are all crazy but I love the analysis and attention to detail.  I would say pretty nice for a bunch of non-lawyers (with loads of respect to Oscar, of course!)

[Matthew Chan]

A very simple question: Where is Page 2 of the copyright registration? And more importantly, what images are listed on Page 2? It seems to have been conveniently left out.

Also, Christian Martinen does not strike me as a litigator type based on their web page. I hate to keep saying this but there is no other way around it.... I don't think Christian is anywhere close to being an Oscar Michelen.

My initial conclusion is Hawaiian Art Network continues its tradition of only hiring the "finest" and experienced lawyers.  I would very much like to find out what the collection split is.  Is it 50/50? 60/40? 70/30?  I have to believe the lawyer gets the smaller number if that is the case.

[milosron]

Sorry for the length of this reply but I thought it would be useful for you to get the whole story.  Here are the details so far:

On Nov 2, 2011 I received this email with the demand letter attached as a pdf document.  It was sent to the contact us email address on the website which is forwarded to me as well as the business owners.  Since I do this web site for free it's registered in my name and I provide the hosting also.  It was sent from a gmail account called cpmlegalteam and signed by Robert?  It seemed so unprofessional that I immediately suspected that this was a scam.

To Whom It May Concern:

Please see attached our demand letter to cease and desist using our client's copyrighted material on your website, ********************.

Please contact us immediately to resolve this issue.

Sincerely,

Robert
CPM Legal
866-***-***

This was quite upsetting and scary.  I immediately removed the image and deleted the file from the server etc.  Two days later I responded via email:

As you requested I have deleted the image files in question from the website and backup computer.

I originally found that image via a Google search and there was no indication that it was copyrighted material or I certainly would not have used it.  I was not using the image file that you noted in the letter but a low resolution 2" thumbnail.

The image was not used in any way to generate business.  It was used to call attention to a public service page on how to clean you pet that was sprayed by a skunk.

I am an amateur web designer and I created and maintain this website pro-bono, as a friend to the owners of the very small and local dog grooming business, European Dog Grooming.

If that image file is indeed copyrighted I apologize to your client for any inconvenience it might have caused.

I received this reply from Robert - whoever Robert is?

Mr. *******:

Thank you for your letter. 

The following is a brief response to the points in your email:

First, the image you used on your website was NOT in the public domain.  The concept of "public domain" is a legal question.  An image becomes apart of the public domain only after 70 years after the death of the author.  If you did not purchase or create the work (e.g. text, photograph, image, picture, sound recording, etc.) then it is a copyright infringement and illegal to use the image without permission of the owner.  Google only searches websites and organizes information and images for the searcher.  These images may NOT be used by anyone without the permission of the owner.

Second, it is not important whether or not you had the intent to violate the copyright of our client. 

Intent is not an element in proving liability under copyright law.  Also, it is irrelevant why or how you used the image because the simple display of the image on your website subjects you to liability under copyright law.

Finally, all of the elements of a copyright infringement exists regarding the use of our client's property on your website.  The owner of the image and holder of the copyright hired our law firm to demand that you cease and desist use of the copyrighted material AND secure a monetary settlement amount of $2,245 for the wrongful use of her property without authority. 

We strongly advise you to resolve this matter immediately to avoid additional attorney fees, other expenses and court costs that will be assessed to you.

Please contact us 866-431-6520 to settle this matter or have your attorney contact us.

Sincerely,

Robert
CPM Legal
866-431-6520

At this point, being quite worried and upset I mulled over my options.  So, first I called my personal home insurance agent to inquire whether or not this sort of thing is covered.  They had me actually file a claim.  I sent them the demand letter and explained my situation much as I explained above.  In a about a week, I received a 5 page letter sent by certified mail explaining why I was not covered by my policy.  So much for that.  So, next I contact a lawyer who we have used in my business from time to time.  He agreed to review this.  He came back with what he felt were my options:  Pay the $2245 or negotiate a lesser sum or for a fee somewhat more than Oscar is charging, hire him to write a letter or do nothing a wait to see if they actually file a lawsuit and then deal with it.

I wasn't about the pay the extortion.  Dealing with them felt dirty since I felt that this was a scam.
The letter seemed somewhat inviting since it would get them off my back but the lawyer wanted more than I felt I could afford and besides this lawyer is a general lawyer with little or no experience in copyright law.
That's when I went to the web.  I looked up the CPM lawyers on the state bar sites and found that they were real.  Then I came across Matt's blog on his business website that described what had happened to me exactly.  With some of the knowledge gained from Matt's blog, I responded to Robert (whoever he is?)

Robert,

A few points.

1.       The image I downloaded is called Skunk Babies.jpg not SR-VA001301433-Skunk002.  I tried to find that image on your client’s websites and could not locate it. (I was looking in the HAN websites here)

2.       You have not sent me proof that your skunk image is copyright.  Prove to me your client is the true owner and show me proof of copyright including all the properties of the image.

3.       On the web there are scores of sites, maybe 100’s around the world that have this same skunk image on them.  None that I saw have any copyright information on them.

See: This following link shows scores of sites that have this image.  Almost every one of these goes to different web site.

http://www.google.com/search?q=baby+skunks&hl=en&gbv=2&imgrefurl=http://pixdaus.com/%3Fsort%3Dtag%26tag%3Dbaby%2520skunks&imgurl=http://pixdaus.com/pics/1242855936ie9EpYX.jpg&w=800&h=589&sig=116627408044841583713&tbm=isch&tbs=simg:CAQSEgnfjnpSU9BMSiGDFG6TyZV2Rg&sa=X&ei=LwzmToKGEOLc0QHUwKGZDg&ved=0CAUQrBE&biw=1707&bih
=971

4.       Because I downloaded this image from some 3rd party site and did not know the image was allegedly protected, infringement, if any, was not willful hence I am not liable as you claim.

First send me the proof of copyright and we can proceed from there. 


Now three weeks went by and I thought maybe they gave up on me because I just wasn't going to send them money.  But on December 30, 2011 I got this signed by Mr. Martinen himself.  Attached was page 1 of the so called copyright registration form:


Mr. ******:

1.  The title of the image that was copyrighted includes the copyright number "SR-VA001301433."  A *.jpg name can be changed for marketing purposes but it remains the same image.

2.  Please find the image on our client's website at: Wendy Shattil

3.  We have hundreds of enforcement cases regarding this one image as well as many others of Ms. Shattil.  A copyright holder must enforce the copyright or risk losing the protections a copyright affords the holder.  Many times those who infringe on copyrights will photo-shop the copyright information off the image.  As you see on the website link in point #2, the copyright information is on the image.  Whether or not you took the information off the image or someone else, the use of the image without a license from the artist is an infringement.

4.  In the event that you had no intent on violating the DCMA rights of our client by altering the image, then without more proof we will not pursue this cause of action.  However, through your website you have infringed on our clients copyright and we have the obligation to enforce it by seeking monetary damages.  We do this by settling for a past use license and release of liability with no right to use the image in the future.

5.  Please see the copyright registration form under CR# SR-VA0001301433 attached.  Below is the copyrighted image cataloged under the copyright registration number with the US Copyright Office.

Contact us at 866-***-**** to settle this matter.

Sincerely,

Christian Martinen, Esq.
CPM Legal
***-***-****
 

Finally going back to the web and Matt's blog I discovered ELI.  I contacted Matt, sent him all the above info.  He posted the letter and registation form and that is it to date.
I had some other thoughts.

I actually called the Attorney General's office in my state and had a long talk with a very nice women.  Her suggestion was to report this to the FBI via a website www.ic3.gov (Internet Crime Complaint Center).

Contact Call for action lines on local TV stations or newspapers.  Ms. Shattil might not like it if the Denver Post ran an article that one of Denver's favorite photographers is engaged in a scam.

Do any of you think that there is any sense in appealing to Mr. "Random acts of Kindness" Martinen's sense of ethics.  Do you think he might be unaware that he is one of many lawyers hired by HAN over the years to pull this extortion on people?

Awaiting your comments.

[lucia]

Oscar,

I was thinking to myself that presenting a new case or extortion letter to the ELI Community is like feeding fresh meat to the sharks.  It didn't take long for them to tear this case apart and analyze it from top to bottom.  Oh, did I forget to mention it was only Day 1?  LOL.

You guys are all crazy but I love the analysis and attention to detail.  I would say pretty nice for a bunch of non-lawyers (with loads of respect to Oscar, of course!)

INAL, but I wouldn't jump to the conclusion that the case is torn apart.  Certainly, it seems plausible that this case might not hold up. The accusation the letter recipient removed copyright info isn't going to hold up.

But it's also still plausible that:

• The photographer listed on the letter appears to be one of two copyright claimants for that image and it's still quite plausible she <I>is</i> a  claimant. (You would need a lawyer to explain whether the existence of a 2nd potential claimant makes any difference should a case go to court.  The other claimant was older than Shattil. Could his heirs also be granting licenses? This is information we do not have at hand.)
• HAN may or may not have exclusive license. ( I don't know how their failure to enforce at all these other infringements affects their license-- but they may have one and the judge might interpret it as exclusive. ) But even if HAN doesn't have an exclusive license, the case could just be taken up by the copyright owner.  So, the issue of exclusive license might not be all that helpful.
• The letter sent by the lawyer and the registration don't appear match the image-- as the copyright info seems to suggest that particular registration is for an image of a bald eagle with a flag on it.  BUT on the other hand, that particular artist has taken images of baby skunks, and has copyrighted a whole bunch of images. At least twice images seem to have been uploaded using a web tool, which suggests that the photographer may have uploaded lots of the previously unpublished image. That could include this particular image of baby skunks If so, I image that the photographer would still have a case for some sort of infringment and the images likely would have been registered prior to their posting on the dog grooming site.
• Assuming the copyright owner isn't "seeding" images (and we have no reason to believe she is) I have to feel at least a little sympathy for the copyright owner/photographer whose images are being infringed massively by sites all over the place. It appears is about 62 years old, and probably would like to make some money from the images. Certainly, when a commercial site uses it, she would like to make money.
  
  Mind you, cute as those skunks are, no end user would pay a huge amount for their use on any web site.  But, ideally if HAN weren't the intermediary, I image that the photographer and the creator of the dog grooming site could just negotiate a reasonable settlement-- possibly even including the skunk image and linking to the photographer's site so that the photographer could get more sales!

It does look like any accusation that the web site creator stripped copyright information would be impossible to prove. (I would think nearly any judge looking at the evidence of all the images without copyright info on the web and conclude it's more likely the web site creator did not strip copyright information.)

I think the letter recipient needs to request page 2 and also communicate to HAN that without page 2 based on the text at the copyright office, it appears that registration is not for the baby skunks image.  But I suspect they shouldn't jump to the conclusion that the skunks have no copyright at all (they probably do) nor that they aren't registered. The photographer may  just  have pulled up the wrong registration.

[SoylentGreen]

Here's an novel idea.
Don't buy into the scam, and don't pay.
That little voice in your head that says, "Wow. theyre asking for a lot of money, and can't provide evidence... this must be a scam".
Listen to that voice.  The simplest explanation is usually the best one.

S.G.

[lucia]

Soylent,
I think the photographer and their lawyer are being heavy handed. But I also think you need to be careful before you assume you can convince disinterested parties that the request is actually a scam.

I looked at the photographer's site http://www.dancingpelican.com/store/product_info.php?products_id=66, and the copyright office. I would gauge it highly probable the 'page 1' of the copyright was provided and the skunk image will be found in the other set of image with copyrights from 2004. These are: :

Type of Work:    Visual Material
Registration Number / Date:    VA0001303006 / 2005-02-04
Title:    2004 Dancingpelican uploads.
Description:    CD-ROM.
Notes:    Photos.
Copyright Claimant:    Wendy Shattil, 1949-, & Bob Rozinski, 1938-
Date of Creation:    2004
Date of Publication:    2004-02-01
Copyright Note:    Cataloged from appl. only.
   
Names:    Shattil, Wendy, 1949-
   Rozinski, Bob, 1938-

Previous

If the image is in the collection, quite likely page 2  might be omitted from a fax because it is a CD-ROM, not a paper printout. 

It might be useful for the person who was sent the HAN letter to try to get a copy of the CD-ROM and read the license provisions in the CD-ROM etc.  I suspect escalating with pugnacious language suggesting the photographer is a scammer is not in anyone's best interest.

[SoylentGreen]

I wouldn't suggest that anyone use any kind of negative response that would anger one's adversary.
I'd rather people respond only when absolutely necessary, in fact.

My personal opinion is that these demand letters are often scams when dubious claims are made, and it'd difficult to make heads or tails of what image they're even talking about.
There's a great onus on the "accuser" to provide some proof that's decipherable.

I also feel that the thought processes of "it might be registered" (just because the accuser didn't provide any real evidence otherwise), or "I'm not sure what image they're talking about, but maybe I did use an image that I shouldn't have" (again, a feeling based on the lack of evidence provided) leads to people paying a lot of money based on fear.
That is, a reaction that comes only from the feeling that nobody can guarantee that the other party can't "win".

I find the vast majority of these claims to be dubious at best.  It's time to recognise this for what it really is.
If the accuser won't provide further clarification of the facts, then there's the answer.  It's scam-ola.

S.G.

[Robert Krausankas (BuddhaPi)]

Seems to me, just about every letter sent from whichever attorney affiliated with whatever stock image company always seem to think, that it is up to the recipient to prove they are innocent, with the exception of Masterfile, none of them really offer solid proof of anything, in regards to registration or anything else... I like to think the word "scam" is used in the same sense as the word "extortion", heck it could be even called "phishing", in a sense they are just dangling bait and waiting for the un-educated to come along and bite, thus paying these outrageous amounts.

any whoozle I just came across this little tidbit about Mr. Martinen

"Armed with his double law degrees, he is also an active independent producer and talent manager. " oh and realtor as well

http://www.surfview.com/seattcpm.htm

[Peeved]

Well, we can call it "scam", "legalized extortion", "bulls*%T", or what ever, but the bottom line and fact is that HAN and MASTERFILE DO SUE!

To the recipient in this case, the best thing to do is get your P's and Q's in order and be PREPARED to go to court if necessary should you choose not to pay the demand.

FACT: There is a registered number provided in this case. That registration number does show up in a search of the U.S. Copyright Website. VA0001301433 by Shattil, Wendy.

FACT: Can you be sued for "statutory damages" when a "registration" is involved? Answer: YES! This does not however mean you will be held to pay those damages and could prove "innocent infringement" and be held liable for "actual damages" only.
Question to ask: What would this cost in ATTORNEY FEES in comparison against the demand request? Personally, we'd rather pay the attorney fees.
 
In this case, the registration number shows up in the U.S. Copyright Office as Lucia showed, under the title of "Webshot uploads" which are dated February 15th - May 18th of 2004. This seems to be a "compilation" or "catalog" registration.

It was once stated by Oscar that "compilation registration" does not always provide protection over the individual images within the compilation. This is something that needs to be looked into.

[SoylentGreen]

The registration says "photos".
It could be a "bulk" registration.  If it is, they'd have difficulty winning in court, due to a prior precident.
FYI, you can't own "copyright" to a national flag.
Fight. Fight. Fight.

S.G.

[Robert Krausankas (BuddhaPi)]

As far as we know Hawaiian Art Network has indeed filed 3 lawsuits, each of these were filed in Hawaii and 2 of the 3 were for multiple images 10+ and these 2 are also international businesses. Will they file suit over 1 image in the states? that has yet to be determined. It is also worth noting that the attorney working the cases (J.Stephen Street) in Hawaii has also been counsel for Pacific Stock and has been in practice longer that some of these other have been alive.

As for the 3rd case I'm not exactly sure if this was for multiple images or not, and to date there hasn't been any updates in the court dockets, hopefully the recipient of this letter will return to the forums and give us an update on his case.

[SoylentGreen]

I appreciate the good discussion here.

I think that all the companies involved have sued at some point; from Getty to Corbis all the way to Riddick.
I know that's probably obvious to most; the strategy is that if they don't sue (or at least file the papers), nobody would pay.

S.G.

[Peeved]

Lesson Number UNO:

If you ARE sued by HAN, MAKE SURE YOU RESPOND in a timely manner and do NOT ALLOW for a DEFAULT!

http://www.extortionletterinfo.com/forum/getty-images-letter-forum/hawaiian-art-network-lawsuit-collection/

That really sucks!