Did you find a Cease and Desist Letter (‘Abmahnung’ in German) in your mailbox sent by someone who claims to work with PhotoClaim? How to make sure it is not a scam but a valid email? What to do next? We will provide you with an answer in the next paragraphs.
PhotoClaim was created by a photographer for photographers. The service was set up to address the pressing need for protecting photographers’ rights and to start getting back the money they deserve from their copyrights. Having over 5 years of experience in this field, we still observe that companies use the images without obtaining permission from photographers.
Once the rights get violated, we go the legal way to get back the compensation. We do not use post-licensing because it harms photography. Very often the thieves only have to pay what they would have to pay anyways if they bought a license. Some services offer the thief the post-licensing option which means that the invoice sent once the infringement is detected is the equivalent of the license. Such practise does not influence and change the way of thinking of those who used the image illegally. PhotoClaim does it differently. We always work with a lawyer. On top of what the license fee is, the opponent always has to pay for the legal fees. Stealing a photo has to be more expensive than buying a license, otherwise is hurts photography.
As soon as we discover an infringement, we notify the photographer who checks and confirms the illegal usage of their picture. If the infringement is valid, we ask the photographer to give an authorization to our partner lawyer to enforce their rights. Some of our clients face hundreds of cases when their photos get stolen. They would never be able to get back what they deserve if they were to do it on their own.
Marcin Zieliński joins our Photography Defender team
So far we have been working with Robert Fechner and Filipp Bickel. Recently we set up new cooperation with a German lawyer: Marcin Zieliński – a strategy consultant & lawyer with a strong focus on digital business and solutions. Marcin loves to work at the crossing of business, law and politics.
Marin Zieliński’s official email address is firstname.lastname@example.org. If you have received a claim via email from this address, you can be quite sure it is a valid claim and not a scam. You can verify it via the german Roll of Solicitors.
You can also read more about Marcin Zieliński on his website.
What is the claim about?
If the claim you found in your inbox mentions unlicensed usage of a photo or a video, then most probably it is legitimate. You may not even remember the exact moment or purpose you used the picture for, but we have got the proof, as the action was saved online.
The reason why you have received the claim is stated in the mail:
’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). In accordance with the law, you are obliged to submit a Cease and Desist letter and this is what the lawyer is asking you to do.
You may find the Internet as both a blessing and a curse but you cannot deny its usefulness. Since we are all present there, we must stick to some rules. Online communication means enables us to exchange messages in an instant. Since it takes only a couple of seconds for an email to reach almost any point in the world, it is easy to reply in time. Stick to the dates because time is money.
How much are you obliged to pay?
The amount of damages is calculated in accordance with the industry standard, MFM tables, or a given photographer’s individual license prices. Once you know how it is calculated, you can always check if it was done correctlyYou can find the examples of fees and more info about the MFM tables here.
Apart from the damages calculated with MFM tables, you also need to reimburse the photographer for the costs associated with the infringement, such as securing the evidence and hiring a lawyer. The costs of a German-based attorney are transparent and set by the law (RVG).
What to do once you receive the Cease and Desist Order (Abmahnung)?
Let’s sum up the next actions that you should take once you receive the email from Marcin Zieliński.
- In case the reason why you need to pay the damages or the procedure is still unclear to you, look for some assistance from a legal counsel with knowledge of the German Copyright Act. Make sure you establish a secure cooperation. Double-check the lawyer. From our experience, we can tell you that there is a lot of lawyers who use PhotoClaim as an easy way to get their clients and do not offer much in return.
- Do not waste time on figuring out how to get away with it. Submit a declaration to Cease and Desist as soon as possible.
- Keep 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.