Higbee, PicRights and AFP for photo inside a PDF

[RR]

So my case is a little different.

I started getting from AFP and now Higbee claims on a picture that was inside a PDF that was on the site.
They have no screenshots of the picture ever been on the website since it was never was. It was only inside a document linked from the website.

The PDF presentation file mentioned in the claim was linked from the website.
If you go to the claim they have link to a PDF that has the image but is not related to the website. This PDF was removed from the website a long time ago and is no shared.

Also might worth to note the company that built the website and the main company (we are a US sister company with the same name) is from outside the US.

Another thing i forgot is to mention they say it's a "commercial use in a pdf/presentation" and asking for $3200

[Matthew Chan]

These types of "so-called" PDF infringements make me nutty.  PDF's are not inherently visible at all. You generally have to download and open them with a PDF viewer.

I think it is ridiculous and the amount being asked for is outrageous. That means, YOU have to be willing to fight and push back on the matter.  Some will say an infringement is an infringement (meaning all infringements are treated equally). To that, I say it is bullshit.

If it was all equal, there would not be such a variation of settlements and outcomes.

If you have a PDF "infringement", as far as I am concerned, this is is very far down on the priority list. This is NOT a legal argument.  It is a "common sense" argument where someone would have to force me, torture me, or drag it out of my dead body for me to ever accept it.

We have some legal minds here so maybe they might have something to add here. In my view, sometimes a strong "common sense" argument and strong pushback is what is needed.

[RR]

Hi Matthew,

Thank you for detailed answer, i appreciate the time and would love to hear others as well.

I agree and i feel the same the fact the screenshots don't actually show anything other than a page with a link made me the major "punch" of the case is missing although they have the presentation that showing the image.
The image was used is of a man jumping a fence, nothing that was done intentionally and definitely does not benefit us commercially.

If they asked for $500 i would let it go but at over $3000 i think it's outrageous for something that does not even show on our website.
What do you suggest by fighting back? i don't might the back and forward but spending on a lawyer more than the cost of the claim would be missing the point.

[Matthew Chan]

I can't teach the art of negotiation and and how to argue your case here. There are strategies, tactics, etc. but it doesn't fit into any neat recipe that people desperately want.

I have been threatening to do this for years and continue to threaten to do it.  I want to write a book that teaches the stuff I know so people can better prepare themselves in these situations. I am going to try to tackle it within the next 6 months or so.  It is one that synthesizes knowledge and wisdom from many fields of expertise.  As such, I can't easily give an answer for everyone.

People who have never dealt with adversarial business conflicts have a much larger learning curve.  And contrary to popular belief, you don't always have to be a lawyer to get your points cross.  It is how your posture, present, and tell your story. It also is based in your level of personal convictions, risk-taking, and coping with stress and uncertainty.

People wrongfully assume that all lawyers know how to argue and negotiate. I learned the hard way in years past, that is absolutely not true. There are some lawyers that are very smart but I would NEVER have them do certain things for me even if it was free.

For example, there is a big difference between an artist who knows how to produce a detailed drawing of a hammer and a carpenter that knows how to swing a hammer and hit the nail on the head to drive it into the wood.

I am a guy who have, over time, learned how to use various hammers to hit different nails in many ways for the outcome I want.

There are nuggets of strategies of what I am talking about scattered throughout these forums in addition to other people's perspectives. Start reading and absorbing.

[Ethan Seven]

I do not see anything inherently different about the merits of a claim just because the infringement was on a pdf.   Like all copyright claims, they are fact specific.   I would need to know much more before I called it nutty just because the infringement was on a pdf.   

Many PDF files I see online are copies of materials that are primarily used in other manners.  For instance, I often download pdf files that are product manuals or portions of magazines.  In some instances a pdf online is just a sign of a much larger possible infringement. 

So, I would not make categorical assumptions based on the file format in which the infringement occurred. 

In analyzing this, something has occurred to me that should have long ago.  From what I understand, many of the demand letters are being sent are for a complete release of liability for the infringement.  If that is the case, it makes some sense why the demand amounts might seem high.  The copyright holder is operating with limited information about the full extent of the use. 

Couple that with the fact that most businesses create websites that try to portray the business as big or successful, and it gets a little easier to understand where some of the demand amounts are coming from. 

Believe me, I am sure greed, frustration and other emotions are also factors in many demand amounts, as well as the age old belief that negotiations need to start high and work down.    I just think I have previously failed to consider the information gap and the relief being offered as possible factors.

[RR]

The picture was used only in a single PDF to portray a scenario we solve, that's all.
It was not intentional infringement try to paint us as something we're not using someone else picture or using it to any benefit.

It matters that it's not in the website and in a pdf because it was not "stolen" to be used in a public platform where we use it to our benefit in my mind.

[Matthew Chan]

I say what I say about PDFs from a technical standpoint, not necessarily a legal standpoint.

PDFs don't inherently display "naturally" on a web browser. Even if the image was the only element being stored in a PDF, it requires a user to actively click a PDF to view it. The device must also have the necessary software already installed to view it. Not all devices inherently have PDF viewing capabilities.

I run into PDFs occasionally and when I do encounter them, they don't "just display" as casually as if it were a web page. 

Having said that, I agree that determining the facts of the usage does have bearing. But images in a PDF just ain't the same as images on a web page as a practical matter.

I do not see anything inherently different about the merits of a claim just because the infringement was on a pdf.   Like all copyright claims, they are fact specific.   I would need to know much more before I called it nutty just because the infringement was on a pdf.   

So, I would not make categorical assumptions based on the file format in which the infringement occurred. 

[DavidVGoliath]

The picture was used only in a single PDF to portray a scenario we solve, that's all.

So it was used to illustrate your company's services - to your own staff as training materials, or to potential clients as solicitation of their business?

It matters that it's not in the website and in a pdf because it was not "stolen" to be used in a public platform where we use it to our benefit in my mind.

The "benefit" is that you didn't seek permission and/or pay for the use of the photograph and, now that fact has been discovered, you're on the receiving end of a copyright infringement claim.

I occasionally work with corporate clients and, depending on their brief, the images they want may be for internal use only, for client-facing use, or a combination. My licensing fee reflects the expected scope of use and yes, sometimes this will include electronic copies of documents in PDF format.

To claim that the photographer and their attorney have no grounds for a claim because it was a PDF and not a website usage is, frankly, ludicrous.

[RR]

No one said they had no grounds, this i was done in an innocent way.
First of all to ask for $3000 is outrageous, if they were asking for $300 i would think there's something to talk about but asking for this amount like we used it knowingly while stealing someone else work is just not true.
Those blood sucking lawyer treat this matter like this was some kind of armed robbery while this was an innocent mistake of someone who does not understand that taking a picture from the internet isn't really free and coming without warning to claim i owe them money.

What is $3000 is based on? why it's not 2300 or 5000 or 350? is this pure speculation.

[DavidVGoliath]

No one said they had no grounds, this i was done in an innocent way.

Infringement of copyrights is what is called a strict liability tort; in plainer language, that means that when you infringe, the why/how doesn't really come into play. In some ways, it's similar to getting a speeding ticket and trying to argue you know of or see the speed limit signs. If you want to argue about circumstances, then that's done to either a judge, jury or court-mandated arbitration. You can try to argue your case during pre-trial settlement negotiations, but the attorney/photographer may not believe you.

First of all to ask for $3000 is outrageous, if they were asking for $300 i would think there's something to talk about but asking for this amount like we used it knowingly while stealing someone else work is just not true.

I license photographs to corporate clients for three, four, and five-figure sums. If the photographer has a sales history of doing the same, then maybe $3,000 isn't a stretch in terms of their lost revenues. Consider: if you'd asked this specific photographer to use the specific image before you published it, you would have had the opportunity to do one of three things

1: Pay their requested fee

2. Attempt to negotiate a lower fee

3. Walk away and choose a different photographer's work at a price suitable to your budget

By simply finding, taking, and then publishing their photograph, there was an end-run where none of the above happened.

Those blood sucking lawyer treat this matter like this was some kind of armed robbery while this was an innocent mistake of someone who does not understand that taking a picture from the internet isn't really free and coming without warning to claim i owe them money.

It's almost twenty years since Napster came on the scene and disrupted the music industry, with the term "copyright infringement" entering the consciousness of the public at large. Maybe you really didn't know that taking a random picture from the internet then publishing it in a business-related capacity wasn't legal but, in my opinion, that argument holds less water with each passing year since 1999.

[RR]

Since you are the guy that making money out of stuff like that i don't expect you to agree with me.

You are missing the point, the have only a presentation with the photo. No proof it was on the website only showing a link.
All i'm saying this is a presentation that was not shared in public and i'm willing to pay a small fine of few hundreds dollars for the use but not 3000.

Also a judge won't award them that money so fast either but i just don't want to drag this too much.

The main question is should i contact them and negotiate, someone from higbee called once left no name and said they will call again which they never did.

[DavidVGoliath]

The main question is should i contact them and negotiate, someone from higbee called once left no name and said they will call again which they never did.

The $64 question that only you can answer. All business requires management of risk and uncertainty. Whether you negotiate (risk management) or wait to see if you're taken to court (uncertainty) is your decision alone.

[Robert Krausankas (BuddhaPi)]

Generally speaking we here advise to not contact anybody directly, as you can easily state something that could come back and bite you, however, since you pretty much admitted to using the image without a license, it probably doesn't matter at this point..( since we all know for a fact that Higbee and others frequent these forums)..i doubt contacting them will yield the desired results, at the end of the day, the artist wants to be paid and higbee wants to be paid..

[Ethan Seven]

@DavidvGoliath. I know you claim to be a photographer, but you think and write very lawyerly.  My guess is that you had a solid classical education or your parents were lawyers.  No need to divulge, I enjoy a mystery.

[RR]

Generally speaking we here advise to not contact anybody directly, as you can easily state something that could come back and bite you, however, since you pretty much admitted to using the image without a license, it probably doesn't matter at this point..( since we all know for a fact that Higbee and others frequent these forums)..i doubt contacting them will yield the desired results, at the end of the day, the artist wants to be paid and higbee wants to be paid..

I didn't admit to do anything since it's not me that created the file.
As everyone in this forum if they get contacted with an email or letter they have a screenshot of the violation. No one used this image knowingly without a license and who ever created the file found it on google images and not in a certain place, at the time of the creation google did not still note anything about copyrights.

I definitely think i have an argument here.