How WENN uses copyright threats as a sales tool

The rules relating to copyright in the United States are fairly clear, even if you don’t necessarily agree with them. At the core of US hosted content is the Digital Millennium Copyright Act (DMCA), a system the details the use of copyright materials online, and puts in a place a notification system in regards to copyright material. The DMCA though can and is abused, particularly in regards to material that constitutes fair use.

We’ve received a number of takedown notices (may 5-6) in the nearly twelve months since we started The Inquisitr. Some have been fine (one case was a mistake in the images posted), some have been beyond stupid, like a takedown notice we received for an embed of a file hosted on a third party site from the IFPI; we swapped it out for a YouTube embed of the EXACT same thing and never heard a thing again.

The DMCA process is fairly clear cut: the notice must detail your ownership of a work, and a demand to take down said copyright materials along with swearing that the statement is true etc. In roles before starting this site I’ve actually been involved in using the DMCA against other sites, so I’ve seen both sides.

Then there’s content owners that don’t respect fair use, who are seemingly incapable of properly using the DMCA, and instead simply use copyright threats as a sales tool for their photo collection. Like WENN photography.

We used one photo in a post recently that was said to have been taken by a tourist at the Berlin Zoo of a woman being attacked by a Polar Bear. There was zero indication of rights ownership, and was part of a larger set of shots; the same photos also circulated through the mainstream media and blogosphere, again mostly without attribution.

Then we got this delightful email from WENN threatening us with half truths…before encouraging us to become a customer:

COPYRIGHT INFRINGEMENT NOTICE – WOMAN MAULED BY POLAR BEAR.

Dear ALL @ inquisitir.com

It’s been noted that inquisitir.com is has posted WENN’s photo of a Woman being Mauled by Polar Bear taken in Berlin Germany.

If you are a client – please advise – and forgive this email.
However, we haven’t been able to find you in our database.

We take Copyright Infringement VERY seriously.

Unfortunately – you cannot just take photos from other sites on the internet – especially as it has WENN.com’s credit every place you look. Companies pay for photos.

That photo is being sold for thousands of dollars.
Would you like to purchase it? You can have it for $1,500.

Please immediately respond to this email.
If you do not wish to pay for the photo – if you do not take it down immediately – and it absolutely must be down within 24 hours – our attorneys will contact you.

Rather than this terse discussion – we’d really like you to be a WENN subscriber – where you can purchase “x” number of photos monthly and/or news feeds.

Finally – if you ARE a WENN client – again apologies…and remember – we protect your interests as well with other companies who may be poaching photos after YOU pay to post them.

Please contact me.
Thank you.

Joan Teitelman
Business Development Manager
WENN-NY
646-723-0780
www.wenn.com
joan.teitelman@wenn.com

The important parts to note:
1: it wasn’t credited to WENN everywhere.
2: Actually, fair use “provides for the legal, non-licensed citation or incorporation of copyrighted material in another author’s work.” This idea that one image from a set of images can’t be taken under any circumstances is wrong, and it’s WENN’s effort to deceive recipients who simply may not understand the legalities of the issue.
3: under the DMCA, a takedown notice must come in a particular form. “Our attorneys will contact you” sounds like a threat, when there can be ZERO legal action until such time the DMCA notice is issued, and even then I’d need to file a counter-notice and not take the image down before this went to court. Safe Harbor provisions in the DMCA allow that image to be removed given that we didn’t know it belonged to WENN, even if we ignore the strong potential that it was used under fair use.

I took the image down (one image of a polar bear is not worth the fight) and instead replaced it with a still from German TV footage of the exact same incident.

I responded, noting the same concerns as I’ve just ran through, and also referenced the Wikipedia page on Fair Use. Notably I also told them that this idea that I had taken the photos “especially as it has WENN.com’s credit every place you look” was false and that if she wished to state this publicly she would be hearing from my lawyers (that point is important given the response.) My response was no more terse than the threat they issued me.

Their response:

Thank you for removing WENN’s photo.
Whether a photo is taken from a WENN set or not – it is still WENN’s copyrighted property.
That a WENN photo posted on your site – unknowingly or not – without paying for it – is not a falsehood.

Furthermore – website publishers pay for those photos.
Photographers get paid when the photos get sold.
WENN protects its clients and photographers’ rights.
How would you feel if you paid for photographs and someone came along and felt they could just take them for free?

This is a business – not a free for all.
Copyright Infringement: A serious matter.

Wikipedia: Not a legal resource on Copyright Infringement.
Are you aware that Wikipedia is made up of people posting things?

Read the Copyright Infringement Law: The Digital Millennium Copyright Act of 1998. U.S. Copyright Office Summary (DMCA).
http://www.copyright.gov/legislation/dmca.pdf

I’m certain you weren’t unhappy your site probably enjoyed a great deal of traffic from that photo.
Needless to say on our end – there are many – many – publishers who have become WENN subscribers after they receive our note.

I thought you’d also like to know I’ve had communications with many people who also took the Polar Bear photo; nice exchanges I might add. They immediately took them down.
No need to be rude.

Trust me – we’re way too busy – working with our clients – to be running around telling people that the Inquisitor illegally posted our photo.
Fact – too busy to write this note.

Any further correspondence on this issue will immediately be sent to our attorney.

Guess they’re so use to people rolling over to their threats and becoming customers that they were taken by surprise ?

The most delightful part is the schooling over Wikipedia: “Are you aware that Wikipedia is made up of people posting things?” and quoting the DMCA when they never sent a DMCA notice, instead a menacing letter than finished with a sales pitch. Also note they constantly refer to photographs (plural) when we’re talking about one image.

But here’s the kicker: they admit in the response that legal threats are a standard sales tactic for WENN: “Needless to say on our end – there are many – many – publishers who have become WENN subscribers after they receive our note.”

If anyone out there is a lawyer, one thing I’d love to know: is it illegal in the United States to use coercion in this form for the sale of a good? That is: we’ll hold a gun to your head, but if you sign up as a customer, you’ll be ok? Would love to know. I also wonder if they have an office here in Australia; the site is published in the United States, but the attempt was made against me in Australia. Very tempted to head down to the local police station to ask the question.