Did you receive emails from COPYTRACK claiming you used the photo illegally? Do you have to pay it?

Did you receive emails from COPYTRACK claiming you used the photo illegally? Do you have to pay it?

August 15,2023 in IT Law | 0 Comments

And is legit or scam? Did Copytrack send you a warning letter? Have you been warned by Copytrack? Did you get an email or correspondence from them? Are they asking you to pay hundreds or even thousands of euros for a photograph usage?

When individuals receive an email from Copytrack, they wonder whether they really have to settle the claim. The communication from Copytrack often present claims that can run into hundreds of euros, leading many to believe they have no other choice than to pay the fee they wanted. In fact, however, it is often the case that many of the website operators/owners do not have to pay anything. In many situations, website operators aren’t responsible and, thus, are not obligated to pay the claimed amounts.

Furthermore, even when someone is genuinely at fault for a copyright infringement, challenging Copytrack’s claims can be beneficial. There’s often a possibility to significantly reduce the costs.

Over the years, numerous cases have emerged where people have successfully take action against Copytrack’s  claims, always keeping both their legal rights and financial interests in focus. It’s crucial to understand what are you legal obligations. There are actual quite a lot of attorneys who focus just on these claims (how to defend against Copytrack claims)

Understanding Copytrack emails – a quick overview

  • Keep calm! First and foremost, take a deep breath. While receiving a warning letter can be stressfull, it’s essential to understand the context. Many people received Copytrack’s warning letters and there are a lot of people who normally legally bought images via Adobe Stock or via any other service. As these emails are sent by robot and without proper check of anything, there is high chance, that you do not have to pay anything at all.
  • Do not sign anything! Do not call Copytrack! It’s better not to sign any settlement or documents with Copytrack, especially if it’s associated with Robert Fechner, without seeking counsel from a legal expert first (there is only reason why to do that – your lawyer told you to do so – which is very unlikely if he is good and well oriented in copyright law and court cases connected with copyright law) . Such contracts can have long-term implications and could further complicate your situation. Also avoid any phone calls which could be recorded which could make your situation even more difficult if you will try to find legal representative afterwards (you may say something which will be then hard to deny in possible court case – if there will be any, which is again very very unlikely). Also, it might be best to avoid direct communication with Copytrack until you are fully informed about your position or after you seek the legal advice.
  • Seek expert legal advice. For those who find themselves entangled in this situation, many legal professionals offer initial consultations free of charge to provide insight. A single conversation can often clarify most of the doubts and concerns surrounding Copytrack’s notices.
  • Royalties due? Think twice before paying the asked amount! Though some of Copytrack’s warnings might be valid, the financial claims often seem to be on the higher side. An uninformed or hasty reaction could inadvertently increase your expenses. It’s reported that many individuals end up paying far less than the initial claim, if anything at all. The main important part here is they try to use the most expensive license which you will not normally use at all (if you are small or mid-size company). As they try to charge the image as royalty (Right-managed licence), which is in most cases not the license you will not normally use. This license is most expensive because you when you buy it for specified time frame and medium and region it is not possible for other companies use same image (it should ensure that two companies do not use same visual in same time/campaign – which is as you probably understand – not required for your website image where you buy from photo banks royalty-free images. You can also learn more about image licensing in my previous article: Image Usage Rights – A Comprehensive Guide for Beginners.

Why companies use for royalty-based images licenses despite higher costs

Royalty-based image licensing, often referred to as Rights Managed (RM) licensing, involves paying fees based on how an image is used. The cost can be influenced by factors such as the duration of use, geographic location, medium (e.g., print, digital), and the scale of the distribution. At first glance, it might seem illogical for companies to opt for this model given the potential for higher costs, but there are several compelling reasons:

  1. Exclusivity: One of the primary reasons companies choose royalty-based licenses is the exclusivity it can offer. This ensures that the image won’t be used by competitors in a similar context, giving the brand a unique visual presence.
  2. Customizable licensing terms: Rights Managed licenses can be tailored to specific needs. For example, a company can secure rights for a particular region, medium, or time frame. This customization ensures that they only pay for what they require.
  3. Higher quality and unique content: Royalty-based collections often feature higher quality images or content that is more niche and specialized. These images are typically produced by professional photographers with a keen eye for detail and composition.
  4. Clear usage tracking: Royalty-based licensing provides clear documentation of where and how an image is being used. This can be crucial for brands that need to monitor their image usage meticulously.
  5. Legal protection and assurance: With royalty-based licensing, companies often get more comprehensive legal protection. They can be more confident about the image’s provenance, reducing the risk of copyright infringements.
  6. Budget allocation: Some large companies allocate a considerable budget for marketing and branding. For them, the assurance of quality and exclusivity outweighs the cost factor.
  7. Reduced overuse: Given that these images come at a higher price, there’s a reduced risk of them being overused in the market. This ensures that the imagery associated with a brand remains fresh and distinctive.
  8. Specific audience targeting: Some campaigns are designed for very specific audiences or regions. Royalty-based licenses can be customized to cater to such precise needs, ensuring that companies pay only for the exact usage they need.

In conclusion, while royalty-based image licenses might be more expensive upfront, they offer a range of benefits that can justify the investment, especially for brands aiming for exclusivity, high quality, and customizable usage terms.

Defend yourself against Copytrack!

The best answer is to provide the licence if it is easy for you to get it. In case you think you did not find the license, the easiest way is simply to delete the image from your website. As to be honest none court would approve Copytrack demand for paying wrong license costs (which are produced automatically by their software). So even if that will get to the court, they will have to pay full amount or partial amount of legal expenses/costs.

So imagine the court will rule that the image you did not buy is not worthy 350 euros, but just 10-15 euros (which is common price for one photo without regular subscription account). So it is like 95 % difference and in same way the Copytrack company will have to pay the legal costs (even yours probably). For sure – some court decision can be like – you have to pay some extra fee penalty from the final price (so you will pay the 200 %), but from the normal licence you will buy for web usage (royalty-free = of the 15 euros x 2 = 30 euros). So the result will be same = they will have to pay partial or full legal costs ((just for their company or in the best case – even yours) and even if they win they will get 20-40 euro probably and have like legal costs in thousands of euros. So from financial/business point of view, they will get to the bankruptcy soon if they will handle each case in that way. Same thing is with validating of the licenses (as most of the Copytrack’s court cases would be lost for sure if they are not trying to sue someone who has valid licence = again high legal costs for Copytrack).

I regularly receive around 5-10 emails every single year even though I bought the images legally from the Adobe Stock or from other photo banks. Is that scam? Legally maybe no, but I have personally different opinion. I don’t even reply to their emails as they are simply completely irrelevant and I would not do anything else than just reply to robotic emails. Up to today’s date no court case was even started from their side…

There are more companies who simply built their business on rather dubious grounds like Copytrack. I mean – it is OK to pay for images/to content creators as otherwise there will be no new content/no new photos. But the way how these companies is trying to demand legal action from to people who in most of the cases do not know they did anything wrong, is stupid.

I mean if you want to catch “thieves”, you should not act like a thief yourself or use dubious practices which are very close to scam/fraud techniques.

Below you can find the most important questions and answers about a claim from Copytrack you should know.

Most frequent questions and answers about a claim from Copytrack

Is an email or invoice from Copytrack a scam, rip-off, or fraudulent?

The answer is unfortunately no. Emails or invoices from Copytrack must be addressed seriously. They represent photographers, image agencies, publishers, and e-commerce providers, and they are quite familiar to us.

I’ve received a reminder, a complaint, or a temporary injunction from Copytrack. What should I do now?

You must address any communications from Copytrack promptly. Be sure to pay attention to the deadlines mentioned in their notices.

What is Copytrack?

Copytrack is a Legal Tech IT startup founded in 2016. Its primary mission is the automated tracking of copyright infringements. The platform allows professional photographers, image rights holders like publishers or online shops, and even amateur photographers to register and upload their photographic content. Using image recognition software, Copytrack scans the internet for these specific images.

If a match is detected, the photographer or rights holder is notified and can determine if it is indeed their image and if its usage was unauthorized. If an infringement is confirmed, Copytrack contacts the individual or entity responsible for the website where the image appeared.

While Copytrack claims to offer its services for free, they do take a commission. Specifically, if they successfully recover a claim for payment, the startup charges a 30 – 45% commission based on the claim amount.

What is outlined in a Copytrack warning letter?

Copytrack routinely sends out numerous warning letters, often across borders. Unlike traditional warnings for copyright infringements, Copytrack primarily demands compensation or royalties. Those warned are presented with an option to purchase an expensive license. From our observations, the compensation claims align with the rates specified by the Mittelstandsgemeinschaft Foto-Marketing (MFM) for photo usage. However, these rates are frequently difficult to enforce and this calculation model then quickly leads to absurdly expensive claims for damages at the expense of the warned.

The documentation provided by Copytrack indicates that they also have the authority, granted by their clients, to seek injunctive relief. Yet, Copytrack typically refrains from enforcing a preliminary injunction alongside their warning.

This Berlin-based IT startup does not request legal fees. Their warning process is mostly automated and initially proceeds without any legal intervention. So basically to say – the whole company Copytrack trying to create illusion that they know you did something wrong (even if you did not).

Not to mention the fact their stupid software cost thousands of people hell of time (as they have to deal with this stupid system Copytrack created to be sure they do not miss something very important.

It also cause one thing – that some smaller clients are scared and afraid at the beginning as the threatening e-mails/letters are written in very offensive way. Which cost us the companies and individuals who manage their sites A LOT of time. For 30-45% of some stupid software. I understand that somebody want to get easily money in his pocket and try behave like he is Robin Hood, but do not remember that Robin was supposed to act as c*nt/bitch.

So for 30-45 % of photo which cost normally few euros you simply spam whole internet and waste time of hundreds thousands of people – webmasters, developers, graphic designers, lawyers.

Also there is for sure reason why these emails are already marked as spam in practically all email services. As it is in most of the cases legit spam service.

Also what is evident, that companies like Copytrack can easily bet on that some people even though they bought legally images will have some difficulties to prove that after couple yeras (to be honest try to get the from from where you have taken the image 4-5 years ago is very difficult). That is actually the reason why we use for our internal purposes marks in the articles as source of the photo so we knew exactly from where we took the photo originally – it saves a lot of time). But again – regular internet user/webmaster probably do not do that.

And thanks to that sometimes you find our that companies like Copytrack try to sue other companies for photos which are downloaded from Wikipedia and were uploaded to photo bank automatically. Strange? Yes, this also sometimes happens, then the thief representing thief is trying to point on some else and claim the biggest thief is him…

If I’m located in Austria, Switzerland, the Netherlands, or another foreign country – should I be concerned about the notice from Copytrack?

Absolutely! Regardless of your location, it’s crucial to address the notification from Copytrack.

Copytrack issues warnings on a global scale.

Jurisdiction of German courts on international matters: In April 2016, the Federal Court of Justice decreed that German courts typically hold jurisdiction over copyright infringements if the offending website can be accessed within Germany (BGH, judgment dated 21.4.2016, reference I ZR 43/14). At any rate, in other European countries, the service and recognition of a decision of a German court is no longer a major hurdle.

Should I pay the amount demanded by Copytrack?

Even in the case of basically justified warning letters, the amounts demanded are not justified. So in most situations, I wouldn’t recommend paying the specified amount.

This is because the sums detailed in the letters or invoices are typically not determined on an individual basis but are generated automatically. Copytrack asserts that their claim letters are purely machine-generated. As a result, there’s no individual assessment to determine if the claim amount is justifiable for each specific case. In our experience, when estimating the potential licensing damage to the photographer or copyright holder, Copytrack usually relies on the rates of MFM Mittelstandsgemeinschaft Foto-Marketing. This method can sometimes result in exorbitantly high damage claims for those being warned.

What are MFM tariffs?

The MFM (Mittelstandsgemeinschaft Foto-Marketing) annually determines the prevailing rates for photo usage in Germany. These are subsequently released in a publication titled “Bildhonorare.” There is, however, some debate over whether the so-called MFM recommendations are the appropriate measure for computing licensing damages. Rather than being a true reflection of conventional image usage royalties, these recommendations lean more towards the definitions set by the providers themselves. Judicial opinions on the relevance of MFM recommendations vary from one case to another.

Is the application of MFM tariffs justifiable?

The question is legitimate, but… . The tariffs are unilaterally established by a professional organization of photographers. To apply these rates, it’s crucial that the image wasn’t used in an exclusively private setting, and that it was either captured by a professional photographer or is of comparable quality to professionally taken photos, as affirmed by several court rulings.

The same precedens is by the way used in other countries as well. 

Will it be enough – can the photographer prove a license practice?

However, it’s insufficient to simply to claim that a photo was taken by a professional. As the District Court of Berlin elucidated in a verdict:

“The calculation of this license fee is not mechanically based on the MFM table. Decisive is rather the own licensing practice of the originator. The MFM table, which in any case is doubtful to what extent it actually reflects the usual licenses of professional photographers, can only be used if there is a corresponding licensing practice. The MFM table results in extremely high amounts of compensation, which in most cases do not match the photographer’s licensing practice. The Federal Court of Justice now also assumes that the amounts in the MFM table are unreasonably high (GRUR 2015, 258 Rn. 75 – CT-Paradies).”

In alignment with Berlin’s legal perspective, which we have also endorsed, solid evidence is required. This proof should confirm that the image was genuinely licensed following the rates delineated in the MFM table – a proof which according to our experience does not often succeed.

If that is so easy, do I have to react to emails? And what will happen if I do not send any reply?

While Copytrack only demands payment from a contractor when they themselves receive payment, based on my personal experience, they do not hesitate to incur legal fees in their pursuit of settling claims. If one chooses not to respond, they might find themselves receiving correspondence from legal representatives.

So in that case you will get another letter/email from the legal firm of Thomas Mauser from Mannheim has been enlisted to enforce such claims. Should one continue to remain unresponsive, there is the potential risk of the legal firm seeking judicial intervention to enforce the claim.

It also depends on the potential income for Copytrack. If there will be real case including 10-20 photos used in company website, they might be more persistent.

If you do not have one image licence, easiest way is to delete the image and wait. As what I could see nothing will happen after that.

The most interesting part in whole Copytrack process is that even the authors which are mentioned in their emails/letters, do not know anything about that they are “represented” by such a “great” company as Copytrack. I wrote to few content creators and they no clue what these “reputable law firms” are doing by their name (yes, they have contract with photo bank, they might get some money afterwards if the case was successful, but they would be very surprised how they are represented and some did not even know there is company like Copytrack using their name in the “enforcement process”).

A quick search shows they also steal 30-45% from the photographer/creator, from the amount they receive.

How to handle a notification from Copytrack

If you’ve received a warning from Copytrack, it doesn’t necessarily mean you need to pay the full amount they’re asking for, even if there was a copyright issue.

Should you just pay the amount?

No, you shouldn’t. Based on our understanding, using the MFM fee table as a one-size-fits-all charge isn’t always legally justified. So, don’t rush to pay an amount that might be too high.

Should you call Copytrack directly?

No, it’s best not to. Talking to them might accidentally give them more information, making things harder for you later.

What’s important to remember regarding to the Copytrack claim?

Make sure you don’t ignore any deadlines in the warning. Copyright claims can be legally binding, so it’s crucial to take them seriously and act in time.

However as I mentioned above, that is not such hot case as it looks like on first look. 

Did you receive a notice from Copytrack?

If you’ve been approached by Copytrack regarding photo usage or are facing potential legal proceedings, it’s essential to consult with legal professionals. Please feel free to reach out to any lawyer company who specialise on Copytrack claims.

Like which I used also as reference site for this content.

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