Cease and Desist letter from Robert Fechner. What to do if you received a Copyright Infringement Notice?

 

1. What is it and why did I receive the Cease and Desist letter?
2. Why didn't the photographer contact me directly but hire a lawyer?
3. What should I do after I receive it? 
4. How do I know it is legitimate / it is not a scam? 
5. What to do step by step. 

What is it and why did I receive a Cease and Desist letter from a lawyer? 

Cease and Desist letter (Abmahnung) is a legal warning letter that is sent in case of copyright infringement that was detected on your website. It means that the creator found her/his work published on your website or on a social media page without permission and decided to hire a lawyer to take legal action against the infringer. 

In the light of copyright law, publishing a photo or graphic without the consent of the author or without the appropriate license is a violation of copyright. That is why you received a warning letter from the lawyer. 

Why didn't the photographer contact me directly but hire a lawyer? 

In the light of German law, before the creator decides to sue, he is obliged to encourage the infringer to an amicable settlement of the dispute. The Cease and Desist procedure is used for this purpose.

Most creators, before they decide to cooperate with a lawyer, have the habit of writing private emails to infringers directly asking them to remove the photo and to pay for the infringement. How many such requests do you think are ignored daily? All of them.

That is why photographers and other artists more and more often decide to take matters into their own hands. Only appropriate legal action can guarantee that their effort and work will be sufficiently guarded, their rights will be enforced and what is most important - they will get paid for their hard work. 

Although the Copyright Infringement Notice (Abmahnung) from Robert Fechner should be taken seriously, you don't need to stress out - before an artist decides to go to court, their intention is to reach an agreement with the person or company who stole their photo. Please rather treat it like a polite but firm invitation to amicable settlement. 

At the same time you should not forget that stealing intellectual property is a serious offence. Therefore, even though the aim of the procedure is to find a solution that will help avoid a lawsuit and satisfy both parties, above all it must be satisfactory and fair for the author of the infringed work. That is why she/he should dictate the terms of the settlement. 

What should I do after receiving the Cease and Desist letter?

First of all, you should take it seriously and read the document carefully from top to bottom. In the letter you will find detailed information about the claim and its legal basis. On the first page, pay attention to the link to your page (URL) where the violation was detected. 

If you are not sure which artwork is a subject of the claim, a copy of the photo or graphic in question can be found at the bottom of the letter in the attached Declaration Cease and Desist.
 
Secondly, it is important to meet the deadline for the reply so do not hesitate to remove the photograph, sign the Declaration and send it back. Replying via email takes a few seconds and allows for instant communication around the world. Therefore, it is quite easy to answer on time. 

At this stage you are probably wondering if email correspondence with the attached PDF can serve as a valid notification of the infringement. Yes it can. In fact the communication order via e-mail is sufficient according to the law.  The more important fact is that our law firm strives for sustainability so we deliver demand notes by email due to the fact that we would like to conserve natural resources. Physical letters are the last resort.

What to do if you do not remember or you are unaware of the breach? It’s worth knowing that your website was secured in case of such a situation. If necessary, we can send you a screenshot that proves the availability of the infringement on your website. 
In brief, you are obliged to do all the following: 

a. remove the infringing content, 
b. deliver a signed declaration to cease and desist and 
c. pay compensation for damage caused by the breach, pay a legal fee and reimburse the cost of preparing professional documentation.

a. Removing a photography

Upon receipt of a Copyright Infringement Notice, your primary responsibility is to immediately remove the infringing content - photograph or other artwork. According to German law, removal means deleting all copies of a photo that you or third parties have reproduced and published on the Internet or on your computer's hard drive. Make sure that the subject of the infringement is completely removed from the website.

b. Signing the Declaration to Cease and Desist

In addition to deleting the photo, according to §97 UrhG (Copyright and Related Rights Act), you are required to provide a signed Declaration. With this document you declare that you have stopped using the photo and you will never use it again. It is, in a way, a guarantee for the author of the photograph that the infringement is over and that it will not happen again. The Declaration, which you can find on the last page of the warning letter, was prepared to meet the standards acceptable in the event of a court procedure.

The most common question about the Declaration is the amount of the contractual penalty that might seem uncomfortable for some people. However, the given amount will not apply to you if you stop using the photo and do not publish it again in the future after the dispute is resolved. 

The amount of the standard contractual penalty of € 5,001.00 for breach of the terms of the declaration is based on the value of disputes in district courts in Germany. This is a common clause in this type of contract.

c. Payment for damage caused by the infringement

As you already may have noticed the letter also contains information about the obligation to pay damages. The rates are based on so-called license analogy. Meaning, that the amount you are obliged to pay corresponds to the license fee you would have to pay to the photographer if you decided to buy a license, instead of taking the photograph without paying for it.

The amount of damages is calculated in accordance with the recommendations of the MFM-tables and depends on the duration of the infringement. The MFM-tables represent the industry’s average license fee in Germany based on thousands of transactions during the period of one year differentiated for each specific use. It may happen however that the photographer uses his own license rates.

In other words, MFM tables serve as objective and fair guidelines for calculating market-based charges for damages.

In addition, the amount of compensation includes the costs of hiring a lawyer and preparing documentary evidence. In Germany, the lawyer's fees are fixed in accordance with the specific regulations (RVG).

How do I know if this letter is legitimate / it is not a scam?

We understand that the Internet is full of dishonest activities. You may have reasonable doubts if the letter you received is legitimate. So remember that we use the email robert.fechner@fechner.legal. It could also happen that you will receive correspondence from the old email address: robert.fechner@photography-defender.com. However both those email addresses are valid, but we are slowly resigning from the second one. 

If you get an email from either of these two addresses, you can be sure that this is a genuine and legal claim. A copy of the power of attorney signed by the photographer is also attached to the email to confirm that Robert Fechner is authorised to act in this matter on behalf of the client. 

Another important thing to mention is that Robert Fechner is a registered attorney at law as you can verify it with the chamber of attorneys in Berlin:

Rechtsanwaltskammer Berlin
Littenstr. 9
10179 Berlin
Telefon: (030) 30 69 31 0
www.rak-berlin.de

To verify the lawyer you can use the following form to search the database for all lawyers admitted in Germany: https://www.bea-brak.de/bravsearch/search.brak Search for “Fechner Robert” enter the captcha / security code and wait for the results.

Let's summarize what steps you should take after receiving the letter:

1. Verify if the letter is genuine (see above instructions). It may happen that someone is impersonating us in order to extort money from you. 

2. Answer as soon as possible. Remove the photo and send back the signed Declaration on time (see details above)

3. If you read the letter carefully, but you are still unsure what to do, contact a good lawyer with knowledge of German copyright law. Remember that there are many legal advisors on the market who use our activity to easily attract many customers. However, they do not always offer a good service.

4. Please let us know if you are: 

- financially affected by the Covid-19 pandemic, or 
- your financial situation is poor for any other reason or 
- you are a nonprofit organisation. 

Be prepared however that your financial status doesn't make a difference to the due licensing fee, but it may be taken into consideration.

5. Remember: even though we strive for an amicable solution, it is also important to know that we have never lost a claim for damages in a copyright infringement court case. You should take it into account and not underestimate the Copyright Infringement Notice. 

Photo credit: Shutterstock / BRO.vector