Copyrights can easily be infringed on the Internet, for example on your website, your shop or social media. You should therefore not underestimate the risk of copyright infringements and warnings. Law firms have long specialised 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.
This article does not replace legal advice. We assume no liability for the completeness, topicality and correctness of the content and recommendations in 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 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 the damage afterwards. These cases often concern copyright infringements of photographers or image designers.
This can be followed by a warning being 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, you can have a look at the european Copyright and Related Rights Act or the Austrian implementation of the Copyright Act.
On the net, image and moral rights are usually violated, as photographs or images are often misused. The law speaks of photographic works and photographic images: photographic works are characterised 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
No matter if you are a private blogger running a website for nutritional supplements or a big webshop for natural products: You must always 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 are often required to give credit to the author (e.g. the photographer); you must therefore include the name of the photographer or designer under the image so that it is clear to everyone who created this work.
- Save the link or take 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 an image or photo online that you would like 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? Explain to 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 (ideally also on which sub-page).
As soon as you have acquired a consent to use, you should document this via screenshot. There can always be unforeseeable warnings. 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 better illustrate 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 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 do not take the photos for your products yourself, but 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 is 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, it is always about money. In such a situation, I recommend the following:
- keep calm
- Do not let yourself be confused by several paragraphs and legal foreign words
- Do not sign prefabricated cease-and-desist declarations
- Make a settlement offer or contact an intellectual property lawyer
Even if a warning notice is not to be found in the mailbox every day, for a lawyer in this industry it is "daily business". One thing is clear: copyright infringement is punishable by law. This means that if the copyright holder successfully sues, he or she may be fined and sometimes even imprisoned. At the same time, the author is 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 his 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; you should not sign this immediately. Such declarations are usually prefabricated and interpreted 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 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 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 may accommodate you if you are 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 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 side, you should point out your financial circumstances. Of course, the other party's lawyer may want to see proof of this. If you can provide him with this proof, it may be that the lawyer consults with his client and a concession of a sum X is agreed.
Provide the other party with evidence 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 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 his 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 add up to the damages, which can sometimes be as high as the damages themselves. In addition, it must be taken into account how long the work has been used unlawfully. 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 to 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 will 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.