Our firm recently got a warning letter (Abmahnung) from attorney Marcin Zieliński, who represents an alleged professional photographer. The warning is based on a claimed infringement of copyright which was determined by the company photoclaim.com.
The warning is in English, even though the warning is from attorney Marcin
Zieliński, a german attormey. Both the photographer and the addressee of the letter do not live in Germany.
Take the warning by attorney Zieliński serious
The warning letter have to be taken serious. Photoclaim.com, the company which is behind the research of the copyright infringement is a company, is a small german company, specialized in research for copyright infringements. The firm cooperates with various lawyers, including Robert Fechner.
Good prospects for a successful defence
Even if an infringement of copyright has taken place and a picture was used unjustly, good means of defence against the warning letter itself and the costs claimed by attorney Zieliński exist.
The international component of the case is legally difficult. German courts are happy to accept jurisdiction, but one of the conditions is that the case must have some kind of connection to Germany. We doubt whether simply calling up a website is enough to give German courts jurisdiction.
Unjustifiably high costs
In our view the claimed lump sum is too high. The evidence of the damage rate of the MFM (an association of photo-marketing) is not suitable to justify the sum of the damage. The highest German Court BGH decided the verdict that the list of the MFM should not be used in general. We also doubt that an international photographer actually charges according to German rates.
Even though reasonable doubts do exist you must not ignore the warning. It is important to defend youself. If you do not act correctly in this case, consequential costs might be imcured.
Guidance of Attorney Hoesmann
As a lawyer, I deal with these cases frequently. To date, no client has ever had to pay the full amount claimed by me. On the contrary, many clients have not had to pay at all.
Do not sign without examination
I cannot recommend signing the pre-formulated declaration to cease and desist enforced by penalty handed out by attorney Zieliński without examination. It contains of too onerous phrasing. And of course I cannot recommend to pay the amount unchecked.
Our expertise, your benefits
Our german law firm is specialised in IP and copyright law and we successfully defended more than 1000 clients in copyright proceedings.
We would like to help you as such we provide clear upfront information on the costs that will be imcured.
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