Attention copyrights: How to avoid warnings and fines

It's pretty easy to infringe copyrights on the internet, for example on your website, shop or social media. That's why you shouldn't underestimate the risk of copyright infringements and warnings. Law firms have long specialized in warning letters for illegal use of protected works. Michael Schöffmann explains what copyright law entails and how you can react correctly to a warning notice.

Through global networking, copyright infringements and violations of other intellectual property are committed across borders. Even if the actual author is based in another country or EU member state, it's easier to enforce your rights through a domestic lawyer. Special care is therefore required. In this article you'll find out:

• What copyright law is
• What you need to pay attention to with copyright law
• How to avoid copyright infringement
• Examples of possible situations using a private blog, a company website and an online shop
• How to respond correctly to warnings
• What to look for in case of a settlement offer
• The amounts of the claim for damages
• What happens if you simply disregard a warning?
• Whether it's worthwhile contacting a lawyer

Why are copyrights relevant for you?

Copyrights accompany us in our daily lives without us being aware of them. Rights to use works and other copyrights can be sold at a high price. But this also means any illegal use can results in hefty costs for the illegal user.

A typical online copyright infringement is the illegal use of images, for example in online shops and on various websites. This consequently causes damage to the author. The author can then claim for the damage afterwards. These cases often concern copyright infringements of photographers or image designers.

This can be followed by a warning being sent to several users of these pictures, without them being aware they've done anything wrong. The costs can be extremely high, as both the damages and the lawyer's fees are included in the invoice amount. The are some precautions you should take in order to prevent such warnings.

What is protected by copyright?

Works of literature, science and art are protected by copyright. Even if the descriptions are structured differently by the various legal systems of the EU member states, the same rights are largely protected. Especially in the case of photographs and images, case law is largely unanimous. Furthermore, the law regulates the scope, content, enforceability and transferability of said rights.

Examples of works protected by copyright are photographs, pictures, song lyrics and music. If you want to get an exact overview of the UK law, for example, you can have a look at the Copyright, Designs and Patents Act.

On the net, image and moral rights are usually violated because photographs or images are often misused. The law speaks of photographic works and photographic images: photographic works are characterized by their special creative value (e.g. a photo shoot), while photographic images can be the simplest photographs (snapshot). A different effect can be seen in the limitation period. Furthermore, it makes a difference whether the protected works were used for private purposes or commercially.

Avoid copyright infringement

It doesn't matter if you're a private blogger running a website for nutritional supplements or a big webshop for natural products, you always need to check the rights of use before using the works of third parties (others who are not contractual partners).

To prevent copyright infringements, please note the following:

• Free images: use images and photos only if explicit reference is made to free commercial use.
• Despite free commercial use, you're often required to give credit to the author (e.g. the photographer). That means you must include the name of the photographer or designer under the image so that it's clear to everyone who created this work.
• Save the link or make a screenshot of the site where the free commercial use of the image is granted.
• Buy images if no free commercial use is offered (e.g. Adobe Stock) and keep the invoice as proof. It's best again to store a screenshot for documentation.

Furthermore, you should always ask yourself the following questions when you see an image or photo online you'd like to use:

• Who is the author of the work? (e.g. it's not always clear on an Instagram page)
• Can I use this photo for my website? Explain to the author whether you're a private or commercial operator of a website and clearly state that you want to use their photo etc. on your website (ideally also on which subpage).

Examples for the correct handling of photos

I have two examples for you to better illustrate potential copyright infringement when using photos:

Example 1: Private blog

Let's assume you run a blog that you use purely for private purposes. To make your texts a little more attractive, you consider copying an image from Google and pasting it into your blog. This is a reproduction of a work protected by copyright and is therefore illegal unless you have given your consent (preferably in writing).

Even if the penalty is higher for commercial operators and the claim for damages is usually higher, you should avoid such situations. It's best to use platforms like Unsplash, Pixabay or Pexels. Here you can find images and photographs for free commercial use.

Example 2: Online shop

Let's assume you run an online shop. You don't take the photos for your products yourself and instead use the pictures from the manufacturer or hire external photographers. Even if the products come from the manufacturer, you need their permission to use the product photos.

In many webshops, it's precisely these image rights that are not taken into account at all. However, the manufacturer rarely sues since there is usually a contractual relationship between the copyright holder (manufacturer) and the distributor (webshop) and a lawsuit would weaken this.

How do I react to warnings?

Don't forget that you are by no means the first person to receive a warning letter. Above all, warnings about copyright infringements happen every day. In the warning letters, of course, different paragraphs are mentioned, which refer in some way to copyright or other intellectual property rights. Ultimately though, it's always about money. If recommend doing the following when you receive a warning letter:

• Keep calm
• Don't let yourself be confused or intimidated by several paragraphs of legalese
• Don't sign prefabricated cease-and-desist declarations
• Make a settlement offer or contact an intellectual property lawyer

Even if you're not likely to find a warning letter in your mailbox every day, such things are daily business for a lawyer in this industry. One thing is clear: copyright infringement is punishable by law. If a copyright holder successfully sues, a person may be fined and sometimes even imprisoned. The author is also entitled to damages, which are calculated, among other things, according to the previous misuse of the work. On the basis of the amount in dispute, the lawyer calculates their costs for advising the client and adds documentation costs. In addition, the value added tax is calculated. In total, the warning often results in very high costs.

The lawyer will send you a cease-and-desist letter but you shouldn't sign it immediately. Such declarations are usually prefabricated and interpreted in favor of the other party. It's best to contact a lawyer and get legal advice. If you're certain you haven't committed an infringement, you should have the necessary evidence to prove it. If the warning is not responded to within a specified period of time, the other party's lawyer will file a lawsuit. If you admit that you've committed an infringement but don't want to hire your own lawyer, try a settlement offer instead. 

Settlement offer to reduce the damage

The other side and their lawyers are only human. Often, they may accommodate you if you're remorseful and admit your mistake. In a settlement offer, you state your own position and explain why you committed the copyright infringement:

• Were you not aware that you were committing a violation?
• Why weren't you aware of it?

After that, a counteroffer – a settlement offer – can be made. If you're in financial difficulties or simply cannot afford the other side's high demands, you should point out your financial circumstances. Of course, the other party's lawyer may want to see proof. If you can provide them with this proof, the lawyer may consult with their client and a concession be agreed upon.

Provide the other party with evidence that your business is threatened by the high costs.

What damages are to be paid for copyright infringement?

As a user of potentially copyrighted works, it's your responsibility to verify that the use is legal. If a lawsuit is filed, you as the user must have evidence to support your innocence. The courts are rather strict in assessing this evidence.

The injured party (for example the photographer) has the possibility to assess their damages according to different variations: lost profit, fictitious royalties and customary tariff rates. It follows that the assessment of damages depends on the individual situation. Legal fees are added to the damages, which can sometimes be as high as the damages themselves. Moreover, how long the work has been used unlawfully needs to be considered. For each additional day of unlawful use, most warnings demand a predefined sum.

The amount of damages depends on the individual case.

And what happens if you don't respond to a warning letter? The consequences of not responding are likely to be a lawsuit. This is because the unlawful use of intellectual property is a criminal offence. If you don't want to take this risk, you should respond to a warning letter as soon as possible.

Bottom line: can a lawyer help me?

This question cannot be answered in a general way either. Basically, you should get a lawyer on board in case of major violations and high claims. They may be able to help you reduce the claims for damages. Specialized law firms (intellectual property law) are often confronted with such situations. One of the best-known law firms is the Cologne-based media law firm WBS, which uses its own YouTube videos to educate those interested in the law on a wide range of issues. 

When considering whether to hire a lawyer, you should of course bear in mind that law firms also charge a certain hourly fee. They'll charge for consultation and documentation costs, just as the other party's lawyer will. Consulting a lawyer, despite the additional costs, is usually the right solution. This is because many law firms are familiar with such cases and know the correct procedure to follow in the event of a warning.