We are aware that copyright lawsuits are on the rise within the fashion industry and among influential brands. However, what happens when you find yourself at the center of such legal disputes for an image you used in a post? Let's take the following experience as a case study that can benefit owners of non-commercial websites or blogs.
On August 16th 2023 I received an email from Copytrack. You may have heard about them as, since 2015, they have helped creatives and brands protecting their copyrighted images. In the "About" section added at the end of the email they sent me, they claimed, "As one of the leading digital licensing and copyright agents in the world, we have helped manage, license, and enforce over 200.000 cases of image theft. Though most cases settle peacefully, we reserve the right to proceed legally where necessary through our global network of partner law firms in order to protect the intellectual property of our customers."
In the email they explained they were conctacting me on behalf of their client, WENN Rights International Ltd, whose license and image rights, limited to the territory of the Federal Republic of Germany they were protecting (abroad they are represented by local lawyers and partners).
According to the email, I had used on my site, Irenebrination.com (which, I would like to highlight, was founded as a non-commercial blog and continues to operate as a non-profit venture) an image without permission and they were investigating the case for their client.
The image in question illustrated a post published on March 5th, 2009 and portrayed a model wearing a design by Gareth Pugh; the photograph was taken during the designer's S/S 2009 runway show. The image illustrating my post showed the head and shoulder of the model, not the full figure, and was included in the email they sent me.
I was requested to answer within a week (August 23, 2023) and I was told that if I didn't have a valid license, my use of the image may have constituted a a copyright infringement in the Federal Republic of Germany, and I would be legally obligated to compensate their client for the damages caused by this infringement.
I was suggested to resolve the case amicably visiting their portal and providing proof of my license by uploading it, or, if I didn't have a valid license, I could have purchased a license for past and future use for one year. The image license (valid for 1 year from date of purchase) amounted to €293.29, while the compensation costs (past usage) to €260.00 (payments, due by September 14, 2023, could have been made online at https://portal.copytrack.com – they accept PayPal, credit card, and bank transfer). As an alternative I was also offered to pay compensation for past usage and delete the image. The email contained a link to my post but no links to the client's database proving the image genuinely belonged to them.
In their email Copytrack added: "Failure to provide proof or pay for a valid license may result in additional fees. Ignoring this matter may lead to legal action in the United States [because their client is in the USA? But shouldn't it have been a German court if they were conctacting me on behalf of a client whose license and image rights they represented limited to the territory of the Federal Republic of Germany?], including claims for lost licensing fees, profits from the unauthorized use, statutory damages, costs, and attorney fees. Each copy or reproduction may be considered a separate violation. We urge you to consider this letter and attached evidence carefully, consult with your legal representatives, and respond promptly. We look forward to a timely resolution to avoid further legal actions." The email was signed by Marcus Schmitt, Copytrack CEO.
I logged on their portal and found that, while in their email they correctly showed the allegedly copyright infringing picture, in their online claim form they pointed to an image showing a full-figure version of the model (sorry, I didn't take a screenshot of their portal, I should have done it - my fault). The image looked squashed, but you could still see it was the same model/picture and the size of the picture was different.
Before replying them, I decided to do my personal investigation: I checked all the images on Wenn's site but couldn't find any relating to that particular runway I had used. The only images I found on their database were pictures (318 in total) of the designer Gareth Pugh at red carpet events or of celebrities wearing his creations and models from other Gareth Pugh shows.
I had taken my image from Zimbio when I did that post, and the original source wasn't available anymore, so I kept looking into the matter. In the end, I found the full figure version of the image they claimed belonged to their client at this link on Pinterest where the user who uploaded it stated it was taken from Zimbio, but was attributed to Flynet Pictures.
I also found another version of the same pic on the site of Hard + Shiny (at this link), the creative studio founded by Gareth Pugh and writer/director Carson McColl. In none of the instances the image was attributed to Copytrack's client.
I went onto their portal to explain the situation and to ask for further clarification. But, after I filled in their forms and tried to submit them, a red banner appeared saying "ERROR TRY LATER" (sorry again, I didn't take any screenshot of this as well, but always remember to do screenshots when you're working on legal cases).
I tried on two different computers and two different connections, but I kept on getting the same error message. So, in the end I sent them an email to explain how. while sourcing for clues I found different sites pointing at the same image that wasn't anyway attributed to their client.
In my email I added: "It is important to highlight that in your message there is no tangible evidence provided indicating that the image indeed belongs to your client, WENN Rights International Ltd. Your client's website predominantly features images of Gareth Pugh, people on the red carpet wearing his creations, and limited runway show photographs from other seasons than the one indicated. If the image is indeed under the ownership of your client, you should provide me with evidence."
I added that I had removed the post and image from any archives on my site to show my commitment to their request, highlighting that the fees requested were more expensive than what I pay to maintain my site (so purchasing the license wouldn't have been convenient).
On August 18th they got in touch to let me know they had reviewed the case and closed the claim. They didn't provide further explanations. So, in the end the situation was solved amicably.
That said, on August 21st I sent them an email to thank them for their cooperation and understanding. But I also asked them if, for my personal records, they could have provided evidence that the image belonged indeed to WENN Rights International Ltd.
They haven't responded yet, but I'm sure they will do so and, when they do, I will provide an update in this post. It's important to clarify that my email is not intended to question the integrity of their undoubtedly solid legal work. Rather, it is aimed at ensuring that I do not inadvertently engage in any further infringements against their client. Additionally, this may help me informing other users on how to avoid similar claims in the future by correctly attributing the images to their client.
In conclusion, while I'm happy the case closed without further issues, I'm also left wondering if the image genuinely belonged to their client (maybe their client acquired an image archive from another provider, and now they seek copyright payments for the use of images that originally belonged to someone else... I'm not sure). Because, while you want to show your client your are a professional entity, you should also treat the person you're asking to pay for copyright infringement with respect and prove them they have used their client’s materials without permission.
I'm also wondering what kind of actions they may take in future against users who upload images allegedly belonging to their clients on Artificial Intelligence systems to rework them (think users who upload images they want to transform adding a text-based prompt or who want to create new ones by blending several different images on systems such as Midjourney...how will they manage to track these pics? Will they resort to suing the site owners? Well, they're not responsible for what their users upload onto them,so things may become tricky there...).
My advice, in case you run a non-commercial site or blog and you get such an email, is always to try and remember where you got the image you posted and, rather than panicking, doing your little investigation before replying the email to try and find an amicable solution.
If you're not confident in your legalese when responding, consider writing a basic email explaining your situation or presenting your counterclaim. Then, use ChatGPT to assist you in transforming it into a formal email instructing the system to employ legal terminology. This approach will not only save you time and money (especially if you don't have a friend who is a lawyer), but will also demonstrate your are willing to cooperate in finding a solution.
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