Have you received a so-called “cease and desist” order (“Abmahnung”) by someone who claims to cooperate with PhotoClaim? If so, we can help you verify whether it is a legitimate claim or a scam.
PhotoClaim tracks the portfolios of photographers on the Internet. Unfortunately, it has become common practice for companies to simply grab images from Flickr, Google or other search engines. This is destroying photography as we know it. A photographer needs to be able to make a living from their work, and any company that needs a photo to advertise their services or products needs to purchase image licenses.
When we detect a commercial copyright infringement, we notify the photographer, who then checks their licensing records. If the use was not licensed, they authorise a lawyer to enforce their rights. Since some photographers experience hundreds of copyright infringements, this is the only way to do it.
How to make sure it is not a scam or fraud:
Lawyers: Robert Fechner and Filipp Bickel
Currently PhotoClaim cooperates with the lawyers Filipp J.A. Bickel and Robert Fechner, who also frequently use the e-mail addresses email@example.com and firstname.lastname@example.org. If you’ve received a claim via e-mail by those lawyers, you can be almost certain that it’s a legitimate claim and not a scam.
Both are registered in the bar association of Berlin and you can verify this with those contact details:
Littenstraße 9, 10179 Berlin
Tel.: 030 / 306931-0
Fax: 030 / 306931-99
Is the claim about an unlicensed use of a photo or video, and demands from you to declare to cease and desist? If so, then yes, that’s when you can be sure the claim is legitimate.
The dynamics of the internet require you to solve the matter quickly and the communication via internet gives you the possibility to respond in time. Delivery via email is sufficient according to the law.
Here is why you received the claim:
“The injured party shall notify the infringer before instituting proceedings in court to desist from infringement and shall give him the opportunity to settle the dispute by entering into an obligation to desist from infringement accompanied by an equitable contractual penalty.” (Article 97a of the German Copyright Act).
That means, after you infringed the copyright, you’re obligated to submit a declaration to cease and desist, which is what the lawyer is asking you to do.
You are also asked to reimburse the photographer for their damages. Those damages are most of the time calculated by applying the industry standard of the so-called MFM tables. This offers transparency; as otherwise, it would be hard for you to verify the demanded licensing fees. Here are some examples of those MFM tables, so you can verify if the amount
|Example of Use||Fee|
|4 months on a homepage, size smaller than 1200px||270 €|
|2 weeks on Social Media||188 €|
|6 1/2 months on Social Media||582 €|
|4 months in a national travel offer (Homepage)||405 €|
|4 months in a international / English travel offer (Homepage)||735 €|
All fees are doubled if the photographer is not mentioned as the author.
The Legal Costs
Along with the damages, you also need to reimburse the photographer for the costs that incurred due to the infringement. Since they will have needed to secure the evidence as well as hiring a lawyer, the law obliges you to reimburse the photographer for those costs. The attorney costs are set by the law (RVG), which offers again transparency in regard of the calculation.
If the lawyer applies a 1.5 sentence on the value in dispute of 6,000€, that would result in a net fee of 531€. Additional to that, a flat fee for communication in the amount of net 20€ is due.
The value in dispute of 6,000€ per photo is what the District Court of Berlin is generally applying as you can see from the many orders and verdicts on our website. In addition to that, the value in dispute increases by the amount of damages that is asked for.
What should I do after I receive the Abmahnung?
As written above, you urgently need to submit a declaration to cease and desist. If you did not understand the above or the applicable law, it would be best for you to seek legal counsel with knowledge of the German Copyright Act.
However, please be aware that on the internet, many lawyers use PhotoClaim as an easy way to get clients. You may be offered help by paying a small fixed fee, but limited to the outside of court proceedings. Some lawyers make a business out of sending copy and paste replies to the lawyers above, then not replying to any further messages. That way the photographer is forced to protect their rights in court, giving rise to additional costs, which are usually also charged by the lawyer who represents you.
Bear in mind that in the cases that we have detected for our photographers, no lawsuit for damages was ever lost. If you have financial troubles, please contact the lawyer who ordered you to cease and desist as soon as possible to find a solution.