Here's the latest from Photo Attorney Tyra...
I sent her this...
Based on the usage of the image and the fact that I am an innocent infringer, I am concerned that the initial amount your asked for is soooo unreasonable that it appeared consist with warnings I have read regarding copy right extortion.
Then I offered 200, then 400... she refused it.
Shelly,
Thank you so much for your emails. To answer your earlier question, under the law, the infringement you committed was an unknowing infringement but not an "innocent" infringement. Innocent infringement is a very high legal standard, which very few fall into. According to the case National Football v. Primetime 24 Joint Venture, (citation: 131 F.Supp.2d 458, 476 S.D.N.Y., 2001), the copyright infringer must show not only that she had the authorization to use the copyright owner’s photograph, but also that such belief was reasonable. That means that in order to qualify for this legal doctrine, you would have had to have thought that Phototake gave you permission to use the photograph and that belief would have to be a reasonable belief. Because you simply took an image from Google Images, this is not a reasonable belief that you had a valid license and is just an unknowing infringement.
The Copyright Act states that because my client registered the image with the Copyright Office, Phototake is entitled to statutory damages, which start at $750.00 per infringement and can range up to $30,000 per infringement, in addition to court costs and attorneys fees. Thus, the minimum damages my client will receive should we be unable to settle is $750 plus attorneys fees.
Thus, while my client appreciates your offer to settle for $400, we find it mildly insufficient, given what my client is entitled to. My client is open to reasonable installments, if that is necessary for you, but would like to counteroffer $1320, or three times the licensing fee of $440 in order to settle this claim without litigation, which is generally much more expensive (just in attorneys fees) than this amount. Please let me know if this amount is acceptable, and if not, please feel free to make a counteroffer to my client, bearing in mind 1) what they would be minimally entitled to in court; 2) the fact that the settlement would be inclusive of all amounts (no additional legal fees to be paid); and 3) taking into account the fact that my client's work was infringed upon and not licensed ahead of time. I look forward to us finalizing this matter and I think that we can work it out to where the payment is manageable installments for you and acceptable to my client.
Look forward to hearing from you,
Tyra
_______________________________
Tyra Hughley Smith, Esq.
Law Office of Carolyn E. Wright, LLC
www.photoattorney.com 573.268.0893 direct
775.580.7322 fax
THEN, Today I decided to send in the CC authorization, filled out the questionnaire and sent it to Oscar accordingly... I emailed her to let her know I did that and she sent me this....
Tyra Hughley Smith
11:33 AM (5 hours ago)
Shelly,
Thank you for that information. Do you know the extent of their representation? Will they be representing you throughout the whole matter or is this retention simply for an initial letter? I only ask because I am familiar with Oscar Michelen and I believe that I have addressed many if not all of the points that will be raised in his letter on your behalf. Please let me know if he will be representing you beyond that point.
Thank you,
Tyra
_______________________________
Tyra Hughley Smith, Esq.
Law Office of Carolyn E. Wright, LLC
www.photoattorney.com 573.268.0893 direct
775.580.7322 fax
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