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Hawaiian Letters & Lawsuits Forum / Re: Hawaiian Artwork, LLC Files Lawsuit!

« on: December 12, 2011, 10:55:12 PM »

mcfilms-thank you for the info.  I am in the U.S. 

So am I understanding the law properly?  Is the need for copyright registration prior to infringement (for purposes of determining actual v. statutory damages) based on actual infringement date, or "discovery" of infringement?  The law seems clear to me (actual infringement date), but the attorney coming after my wife insists its based on "discovery".  She doesn't quote any law (like she normally does) she just says it and insults our intelligence (shes an attorney, we aren't, blah blah blah). 

Excellent advise regarding the fair price offer, I will do that.

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Hawaiian Letters & Lawsuits Forum / Re: Hawaiin Artwork, LLC Files Lawsuit!

« on: December 12, 2011, 08:38:19 PM »

This is my first time posting on here.  Thank you in advance for your help.  Approximately 2 months ago my wife received a letter from Leslie Burns, Esq.  (letterhead of: Carolyn Wright, PhotoAttorney) alledging an infringement on our part of a single picture by Vincent Tylor (Hawaiian Art Network).  I will start by saying this, we never received any official correspondence, only an emailed letter (which is a little unprofessional).  The letter very boldly attacks us and paints us as thieves.  It says we knowingly infringed, making us liable up to $150,000.00.  It offers to settle around $3500.00. 

The photo in question was taken from a site portraying it as "free", which we now (of course) understand to be untrue.  My question is this: our unintentional errant use of the photo occurred nearly 4 months prior to the registration date of the copyright (based on the copyright registration number they provided us & the date on my wife's blog, which they included a screen shot of in the letter).  The publication date is over 9 years prior to the registration date (clearly more than 3 months). 

I have explained this to the attorney, who insists the law only requires the copyright be registered prior to the "discovery" of the infringement, therefore still making us liable for statutory damages.  I can find no law to back up this logic, the only discussion of "discovery" I can find pertains to "statute of limitations" issues (which also vary greatly from district to district as to whether its "discovery" or "injury" date).  In fact, 17 USC 412 appears to very clearly state: "no award of statutory damages or of attorney's fees, as provided by sections 504 and 505, shall be made for any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work". 

If I interpret that properly, the commencement date of the infringement is the date in question, it mentions nothing about "discovery".  Any help you can provide is greatly appreciated.  Thank You!