Copyrights can easily be infringed on the Internet, for example on your website, shop or social media. You should therefore not underestimate the danger of copyright infringements and warnings. Law firms have long since specialised in warning notices for illegal use of protected works. Michael Schöffmann explains what copyright law involves and how to react correctly when you receive a warning letter.
This Article does not replace legal advice. We assume no liability for the completeness, topicality and correctness of the contents and recommendations of the article.
Through global networking, copyright infringements and violations of other intellectual property are committed across borders. Even if the actual author is based in another Member State or in another EU country, it is easier to enforce his rights through a domestic lawyer. Special care is therefore required. In this article you will find out:
- Where copyrights are concerned
- What you should consider
- How to avoid copyright infringement
- Examples of possible situations using a private blog, a company website and an online shop
- How to react 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 is 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. However, it must also be taken into account that an illegal use can cause high costs to the illegal user.
A typical copyright infringement in the online area 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 the damage afterwards. Often it concerns copyright infringements by photographers or image designers.
This is followed by a warning to often several users of these pictures, without them being aware that they have done anything wrong. The costs can be extremely high, since on the one hand the damages and on the other hand the lawyer's fees are included in the invoice amount. In order to counteract such warnings preventively, some precautions should be taken.
What is protected by copyright?
Works of literature, science and art are protected by copyright. Even if the descriptions vary from one legal system to another in the EU member states, the same rights are largely protected. Particularly in the case of photographs and pictures, the case law is largely unanimous. In addition, the law regulates the scope, content, enforceability and transferability of said rights.
Examples of copyrighted works include photographs, images, lyrics and music. If you want to get an exact overview, you can download the european Copyright and Related Rights Act or the Austrian implementation of the copyright law .
On the net, image and copyright personal rights are usually violated, as photographs or images are often misused. The law speaks of photographic works and photographs: Photographic works are characterized by their special creative value (e.g. a photo shoot), while photographs can be the simplest photographs (snapshot). A different effect can be seen in the statute of limitations. It also makes a difference whether the protected works were used for private purposes or commercially.
Avoid copyright infringements
No matter whether you are a private blogger running a website for dietary supplements or a large web shop for natural products: You must always check the rights of use before using works of third parties (others who are not contractual partners).
In order to counteract copyright violations preventively, please note the following:
- Free images: use images and photos only if explicit reference is made to free commercial use.
- Despite free commercial use, the name of the author (e.g. the photographer) is often required, so you must include the name of the photographer or designer below the image so that everyone can see who created the 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 and at best again a screenshot for documentation.
Furthermore, you should always ask yourself the following questions when you see a picture or photo online that you want to use:
- Who is the author of the work? (e.g. on an instagram site this is often not clear)
- Can I use this photo for my website? Clarify with the author whether you are a private or commercial operator of a website and clearly state that you want to use his photo etc. on your website (at best also on which subpage).
As soon as you have obtained permission to use it, you should document this by taking a screenshot. Unforeseeable warnings can always occur. Often photographers sell their images to portals, which then pass on the usage licenses. If you can then provide the lawyer with evidence (e.g. in the form of a screenshot), the warning could be withdrawn.
Examples for the correct handling of photos
To help you better understand potential copyright infringement when using photos, I have two examples for you:
Example 1: Private blog
Let's assume that you run a blog that you use for purely private purposes. To make your texts a little more attractive, consider copying an image from Google and pasting it into your blog. This is the reproduction of a work protected by copyright and is therefore illegal, unless you have given your consent (preferably in writing).
Even though the penalty for commercial operators is higher and the compensation claim is usually higher, you should avoid such situations. It is best to use platforms like Unsplash, Pixabay , Pexels. Here you can find pictures and photographs for free commercial use.
Example 2: Online shop
Suppose you run an online store. You don't take the photos for your products yourself, but use the images from the manufacturer or hire external photographers. Even if the products are from the manufacturer, you need their permission to use the product photos.
In many webshops just these image rights are not considered at all; however, the manufacturer rarely complains, because between the author (manufacturer) and the distributor (webshop) there is usually a contractual obligation and a lawsuit would weaken these weaknesses.
How do I react to warnings?
Remember that you are by no means the first to receive a warning letter. Especially warnings due to copyright infringements happen every day. Of course, in the warning letters there are different paragraphs that refer in some way to copyright or other intellectual property rights; in the end it's always about money. In such a situation I recommend the following:
- keep cool
- Do not let a number of paragraphs and legal foreign words unsettle you
- Do not sign any ready-made cease and desist declarations
- Make a settlement offer or contact an intellectual property lawyer
Even if a warning letter is not in the mailbox every day, for a lawyer in this line of business it is "daily business". One thing is clear: copyright infringement is punishable by law. This means that a successful claim by the author can result in a fine and sometimes a prison sentence. At the same time, the author is entitled to damages, which are calculated, among other things, on the basis of the previous misuse of the work. Based on the amount in dispute, the lawyer calculates his costs for advising the client and adds additional documentation costs. Value added tax is also added; in total, the warning notice often results in very high costs.
The lawyer will send you a cease and desist declaration; you should not sign it immediately. Usually such declarations are pre-fabricated and designed in favour of the other party. It is best to contact a lawyer and get legal advice. If you are sure that you have not committed any violation, you should have the necessary evidence to prove it. If there is no response to the warning within a given period, the other party's lawyer will file a lawsuit. If you admit you have committed an infringement but do not want to hire your own lawyer, try a settlement offer.
Settlement offer: Reducing damage
The other side and their lawyers are only human. Often, they can meet you halfway if you repent and admit your mistake. In a settlement offer, you present your own point of view and explain why you committed the copyright infringement:
- Weren't you aware you were committing an injury?
- Why weren't you aware of it?
Thereafter, a counter offer can be made, which is called a settlement offer. If you are in financial difficulties or simply cannot afford the high demand of the other party, you should point out your financial circumstances. Of course, the opposing party's lawyer may want to see evidence of this. If you can provide him with this proof, the lawyer may consult with his client and agree on a concession of a sum X.
Provide the other side with proof that your business is threatened by the high costs.
What are the damages to be paid in case of copyright infringement?
As a user of potentially copyrighted works, it is your responsibility to verify that the use is lawful. If a lawsuit is filed, you as a user must have evidence to support his innocence. The courts are rather strict in their assessment of this evidence.
The injured party (for example the photographer) has the possibility to assess his damage according to different variations: lost profit, fictitious royalties and usual tariff rates. As a result, the assessment of damages depends on the individual situation. Legal fees are added to the damages, which can be as high as the damages themselves. For this purpose, it must be taken into account how long the work has been used illegally. For each additional day of unlawful use, most warning letters demand a predetermined sum.
The amount of compensation depends on the individual case.
And what happens if you do not respond to a warning letter? The consequences of not responding are probably a lawsuit. Because the unlawful use of intellectual property is a criminal offense. If you do not want to take this risk, you should respond to a warning letter as soon as possible.
Conclusion: Can a lawyer help me?
This question cannot be answered in a general way either. As a matter of principle, you should get a lawyer on board in case of major violations and high claims. This lawyer can possibly help you to reduce the compensation claims. Specialised 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 has own YouTube videos enlightens those interested in law on a wide range of problems.
When considering whether to engage a lawyer, you should of course take into account that law firms also charge a certain hourly fee. They will - just like the other party's lawyer - charge consultation and documentation costs. Consultation with a lawyer is usually the right solution, despite the additional costs. This is because many law firms are familiar with such cases and know the right procedure in the event of a warning.