To answer your questions; each “impression” of an image on the web or in print counts as one infringement.
Because you used a low-res version of the original photo, that would decrease the amount of your damages in a court case.
The fact that you removed the image shows “goodwill”, however, MF will still want to be paid for the past usage.
If the image was altered so much as to be “unrecognizable”, then you might have a defence based on the alteration, but 50% is not normally enough.
Try to avoid mentioning that you grabbed the image off of Google.
---
For those who don’t want to settle, a big part of all this is the waiting game. What some do is “wait” and see if a lawsuit is filed.
If no lawsuit is filed within three years, you’re home free.
If a suit is filed, some settle at that stage (you’ll have less negotiating power, though), others wait to see if MF backs out of court (you’re probably home free)
Others actually go to court and fight. Some present an informal form of defence before a suit is filed.
Lawsuits are cheap to file, and are often used as an intimidation tactic. It’s a good idea to have a defence prepared which would make you appear to be a difficult target.
This could make the plaintiff move on to other “softer targets”, although you’ll be harassed a bit for a period of time regardless.
If you decide to use such a tactic, you might choose to reveal it before a lawsuit is filed in order to deter them from filing suit.
Once a lawsuit is filed, you may still use your defence, but it becomes more laborious and stressful.
---
The following could work in both Canada and the US, I think:
I wouldn’t doubt that MF has stated that it has an “exclusive agreement” that assigns the rights of the artist to MF
This usually includes the right to litigate and collect monies in the event of an infringement.
As many of us know, the retail price of the image isn’t of the utmost concern.
“Statutory damages” are often of the most concern; these damages might include a multiple of the purchase price as a deterrent, and legal fees for the plaintiff.
The ability to collect statutory damages is dependent on the proper registration of the image with the copyright office.
You should search the online copyright database for entries by the artist in question. In Canada:
http://www.ic.gc.ca/app/opic-cipo/cpyrghts/dsplySrch.do?lang=engIf it appears that the artist hasn’t copyrighted his/her image, this means that the artist could not enjoy the benefits of statutory damages because he/she failed to copyright the image.
Therefore, if the artist couldn’t have collected statutory damages himself, he wouldn’t have been able to transfer such rights to MF even in an exclusive agreement.
I feel that even if MF was to prevail in court in a case like this (given the above conditions), they could only collect the retail purchase price of the image.
No legal fees, or any other damages “to act as a deterrent”. If met with these facts, it could be sufficient to cause them to back off in some cases.
In short, if the retail price was 800 dollars each, they wouldn't spend $6000 on court costs to recover $1600. That would be a net loss of $4400 dollars for MF.
Although MF may claim that they’ve copyrighted the image, this would be at odds with a statement that the artist owns copyright and has transferred the rights to MF.
Keep in mind also that copyrighting the image after the infringement may not be of help in most cases.
In the US, the artist has an opportunity to copyright the image within 90 days after first publication. But, that’s as far as “retroactivity” goes as far as I know.
….
Some important points to keep in mind here. Oscar is a US attorney; I doubt that he could get “formally” involved in a Canadian matter, although that would be great.
Lawyers don’t do much for free, unfortunately. Even consultations cost between 100 to 200 dollars.
Their “advice” will often be quite “conservative” and it may not be what you want to hear. They can’t promise anything, unless it’s a “slam-dunk” case.
That might change if you hire them, and express your desire to fight, and also state what your risk tolerance is.
Personally, I don’t answer posts here if the issue has been brought up in a previous post.
The questions about collections have come up numerous times, and have been answered, for example.
Sometimes, I’ll post if I can come up with a strategy like the one above.
Good luck.
S.G.
Show Posts