Watch out for copyrights: How to avoid warnings and fines

Copyrights can easily be infringed on the internet, for example on your website, store or social media. You should therefore not underestimate the risk of copyright infringements and warnings. Law firms have long specialized in issuing warnings for the unlawful use of protected works. Michael Schöffmann explains what copyright law entails and how to react correctly in the event of a warning letter.

Global networking means that copyright infringements and infringements of other intellectual property are committed across borders. Even if the actual author is located in another member state or in another EU country, his rights can be enforced more easily by a lawyer in Germany. Special care is therefore required. In this article you will find out:

• What copyrights are
• What you should bear in mind
• How to avoid copyright infringements
• Examples of possible situations based on a private blog, a company website and an online store
• How to respond correctly to warnings
• What you should look out for in the case of a comparison offer
• The amounts that make up the claim for damages
• What happens if you simply ignore a warning letter
• Whether contacting a lawyer is worthwhile

Why are copyrights relevant to you?

Copyrights accompany us in our daily lives without us being consciously aware of them. Rights of use and other copyrights can be sold at a high price. However, it must also be noted that unlawful use can result in high costs for the unlawful user.

A typical copyright infringement in the online sector is the unlawful use of images, for example in online stores and on various websites. This results in damage to the author. The latter can then claim the damage retrospectively. This often involves copyright infringements by photographers or image designers.

This is often followed by a warning to several users of these images, without them being aware that they have done anything wrong. The costs can be extremely high, as both the damages and the legal fees are included in the invoice amount. In order to prevent such warnings, a number of precautions should be taken.

What is protected by copyright?

Literary, scientific and artistic works 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. In the case of photographs and images in particular, case law is largely unanimous. In addition, the law regulates the scope, content, enforceability and transferability of said rights.

Examples of works protected by copyright include photographs, images, song lyrics and music. If you want to get a detailed overview, you can take a look at the German Copyright and Related Rights Act or the Austrian version of the Copyright Act.

Image and moral rights are usually infringed on the internet, as photographs or images are often misused. The law refers to photographic works and photographic images: photographic works are characterized by their special creative value (e.g. a photo shoot), while photographic images can be simple photographs (snapshots). A different effect can be seen in the limitation period. It also makes a difference whether the protected works were used for private or commercial purposes.

Avoid copyright infringements

Regardless of whether you are a private blogger running a website for food supplements or a large online store 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: only use images and photos if free commercial use is expressly indicated.
• Despite free commercial use, the author's name is often required (e.g. the photographer); you must therefore state 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 page 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, 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 page this is often not clear)
• Can I use this photo for my website? Clarify to the author whether you are a private or commercial operator of a website and explain clearly that you want to use his photo etc. on your website (ideally also on which subpage).

Examples of the correct handling of photos

To better illustrate potential copyright infringements 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 inserting 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 is best to use platforms such as Unsplash, Pixabay or Pexels. Here you can find images and photographs for free commercial use.

Example 2: Online store

Let's assume 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 come from the manufacturer, you need their consent to use the product photos.

In many webshops, these image rights are not even taken into account; however, the manufacturer rarely sues, as there is usually a contractual relationship between the author (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, warning letters due to copyright infringements happen every day. Of course, the warning letters cite various paragraphs that relate 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 calm
• Don't be confused by numerous paragraphs and legal jargon
• Do not sign any prefabricated cease-and-desist declarations
• Create a settlement offer or contact an intellectual property lawyer

Even if you don't receive a warning letter in the post every day, for a lawyer in this sector it is "daily business". One thing is clear: copyright infringement is a criminal offense. This means that if the copyright holder successfully sues, they may receive a fine and sometimes even a prison sentence. At the same time, the author is entitled to compensation, which is calculated according to the previous misuse of the work, among other things. Based on the amount in dispute, the lawyer calculates his costs for advising the client and adds additional documentation costs. VAT is also added to this; in total, the warning letter often results in very high costs.

The lawyer will send you a cease-and-desist declaration, which you should not sign immediately. Such declarations are usually prefabricated and designed in favor of the other party. It is best to contact a lawyer and seek legal advice. If you are sure that you have not committed an infringement, you should have the necessary evidence. If the warning letter is not responded to within a specified period, the other party's lawyer will file a lawsuit. If you recognize that you have committed an infringement but do not want to hire your own lawyer, try a settlement offer. 

Settlement offer: Reduce compensation

The other side and their lawyers are only human. They may often be willing to accommodate you if you show remorse and admit your mistake. In a settlement offer, you explain your own position and why you committed the copyright infringement:

• Were you not aware that you were committing an infringement?
• Why weren't you aware of it?

A counteroffer can then be made, which is called a settlement offer. If you are in financial difficulties or simply cannot afford the high claim made by the other party, 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 is possible that the lawyer will consult with his client and a concession of X amount will be agreed.

Provide the other party with proof that your company is threatened by the high costs.

How high are the damages for copyright infringement?

As a user of potentially copyrighted works, you have a responsibility to check whether the use is lawful. If a lawsuit is filed, you as the user must have evidence to prove your innocence. The courts tend to be strict when assessing this evidence.

The injured party (e.g. the photographer) has the option of assessing their damages according to different variations: lost profits, fictitious license fees and standard rates. As a result, the assessment of damages depends on the individual situation. Legal fees are added to the damages, which can sometimes be just as high as the damages themselves. In addition, it must be taken into account how long the work has already been used unlawfully. For each additional day of unlawful use, a predetermined sum is demanded in most warning letters.

The amount of compensation depends on the individual case.

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

Conclusion: Can a lawyer help me?

There is no general answer to this question either. As a general rule, you should get a lawyer on board for major infringements 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 cases. 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 you want to involve a lawyer, you should of course bear in mind that law firms also charge a certain hourly fee. They will - just like the other party's lawyer - charge for consultation and documentation costs. Despite the additional costs, consulting a lawyer is usually the right solution. This is because many law firms are familiar with such cases and know the correct procedure in the event of a warning letter.