PHOTOS) ATTORNEY
For Settlement Purposes Only, Subject to F.R.E. 408
May 23, 2011
Re: __ Infringement of Ryan McGinnis’ Copyright
Dear Mr.
¥ is represented by an attorney, please forward this letter immediately to its
lawyer and provide the attorney's name and contact information to me.
Ryan McGinnis has retained this firm to represent him in the matter of
infringement of his copyright. Specifically, {_ "is using Mr. McGini
Nebraska Skyline at Night (“Photograph”) without permission on its website to
advertise the Lincoln Marathon. The Photograph at issue is shown here:
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Page 10f5
Law Office of Carolyn E. Wright, LC ?.0. Box 250208, Atlanta, GA 30325 phone 404.496.6605
evan@photoattomey.com | ynvu.photoattorney.com fax 75 588.5961PHOTO) ATTORNEY
took Mr. McGinnis’ Photograph without authorization of Mr. McGinnis or the law from
http://www. flickr.com/photos/digicana/3824421125/ and is using the Photograph at
blog/lincoln-marathon/, as shown in part below:
archives
on 2009
A review of Mr. McGinnis’ licenses does not include 's use of his Photograph. Y’s.use of
the Photograph without permission constitutes copyright infringement. The infringement is clear; the
only question is the extent of damages to be paid.
MR. MCGINNIS’ RIGHTS UNDER U.S. COPYRIGHT LAW
United States Copyright Law grants exclusive rights to the photographer of an image for use of that
image, including the rights to:
Page 20f5
Law Office of Carolyn E. Wright, LC P.0. Box 250208, Atlanta, GA 30325 phone 404.496.6606
evan@photoattomney.com | ynvw.photoattomey.com fax 775.588.5961PHOTO) ATTORNEY
~ reproduce the copyrighted work;
~ prepare derivative works based on the copyrighted work;
- distribute copies of the copyrighted work to the public; and/or
= display the image.
See 17 USC §106. When those rights are infringed, the copyright owner is entitled to recover damages
suffered as a result ofthe infringement. See 17 USC §504,
‘Since Mr. McGinnis’ Photograph was registered with the U.S. Copyright Office prior to ~ “ls
infringement, he may elect to either claim actual damages and profits earned by the infringer as a direct
result of the infringement, or seek statutory damages of up to $150,000 per willful infringing use for
each photograph. See 17 USC §504(b) and (c). Legal fees and costs also may be recovered from the
infringer. See 17 USC §505.
Mr. McGinnis’ copyright notifications are clearly marked in multiple locations surrounding his
Photograph. As stated in Lowry’s Reports, Inc. v. Legg Mason Inc,, et al, 271 F.Supp.2d 737 (D. Mad., July
10, 2003):
“{w)ilifulness” means that the infringer either had actual knowledge that it was
infringing the owner's copyrights or acted in reckless disregard of those rights. Brown v.
McCormick, 87 F.Supp.2d 467, 482 (D.Md.2000).. Evidence that the infringed works bore
prominent copyright notices supports . . . a finding of wilfulness. See Castle Rock
Entm't v. Carol Publ'g Group, Inc., 955 F.Supp. 260, 267 (S.0.N.Y.1997).
Accordingly, | ‘s use of the Photograph is presumed to be willful
Further, Mr. McGinnis posted his copyright management information ("CMI") in the form of a
watermark, “COPYRIGHT RYAN MCGINNIS,” on the Photograph itself in the lower right-hand corner. But
» removed Mr. McGinnis’ CMI in violation of 17 USC § 1202, which states that, “[n]o person shall,
without the authority of the copyright owner or the law, intentionally remove or alter any copyright
‘management information knowing, or, with respect to civil remedies under section 1203, having
reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any
right under this title.” The damages for violating 17 USC § 1202 alone start at $2,500 and go to $25,000
per violation, in addition to any fines for copyright infringement. 17 USC §1203(c)(3)(b).
Therefore, both ’s use of the Photograph without authorization and its stripping of copyright
‘management information were willful and Mr. McGinnis is entitled to combined damages ~ heightened
statutory damages for the willful copyright infringement and statutory damages for the removal of
copyright management information.
Thus, Mr. McGinnis demands that
1. Cease any further use of his Photograph; and
2. Provide an accounting of all of 's uses of his Photograph,
Page 30f5
Law Office of Carolyn E. Wright, LC P.0. Sox 250208, Atlanta, GA30325 phone 404.496.6606
evan@photoattomey.com | ynvw.photoattorey.com fax 775.588.5961PHOTO) ATTORNEY
NOTICE TO PRESERVE DOCUMENTS AND DATA
vis on notice that litigation is likely regarding its actions concerning Mr. McGinnis’ Photograph.
vis now obligated and has a duty to preserve all evidence that may be relevant to the dispute
discussed above and that may be the subject of pending litigation. This duty of preservation extends to,
but is not limited to, data files, e-mails, calendars, telephone logs, access lists, and logs that are located
on 's computer networks, e-mail servers, mainframes, individual computer workstations, and
external drives, or are located on any of those devices within! —_* 's control but not owned by
Runcolo, such as its web host. Specifically, but not exclusively, "...__'. is on notice that it must
preserve all evidence of all its uses of Mr. McGinnis’ Photograph.
is required by law to suspend any practice, even a normal or routine practice that might purge,
delete, or overwrite any electronic document or other evidence, including database matter and related
structural information, files remnants, residual and hidden data. This duty extends to.........'s
employees, and agents. We request that you notify any such employee or agent of this retention
request immediately. This duty also extends to the preservation of replaced computers, hard drives,
and other storage media. if~ ‘backs up its computer drives, it must preserve the back-up files, as
well. We request that Runcolo immediately back up and archive any documents, including e-mails and
all other communications, between and all other persons and entities that relate to Mr.
McGinnis’ Photograph. We further request that | suspend any act or practice that would cause
de-fragmentation, compression, or reformatting of those hard drives.
Sanctions for violating any of the foregoing duties can be severe and include substantial monetary
sanctions, adverse inferences in evidentiary rulings, and the entry of judgments by default. We remain
hopeful that we can resolve this dispute short of litigation. The above duties, however, must be
satisfied during any settlement or other discussions that we may have.
OFFER TO SETTLE MR. MCGINNIS’ CLAIMS
Mr. McGinnis is willing to forego his claim against ......» for copyright infringement in this matter if
you send certified funds in the amount of $9,000 payable to the following:
Law Office of Carolyn E. Wright, LLC, Trust Account
P.O. Box 430
Glenbrook, NV 89413,
Please note that this amount represents an offer of settlement but does not reflect the damages that
Mr. McGinnis could or will seek in a court proceeding, including attorneys’ fees pursuant to 17 USC 505,
and 1203. Rather, this settlement offer reflects what our client would agree to accept if no further
actions against you are necessary. If you do not accept this offer, Mr. McGinnis reserves the right to
seek the maximum available damages under the law, which far exceed this amount.
Be advised that if you are unwilling to resolve this matter as noted above, Mr. McGinnis may initiate
formal litigation at any time without further notice to you. This letter is without prejudice to our client's
rights and claims, which are expressly reserved.
Page 4of
Law Office of Carolyn E. Wright, LC P.0. Sox 250208, Atlanta, GA30325 phone 404.496.6606
evan@photoattomey.com | ynvw.photoattorey.com fax 775.588.5961PHOTO &) ATTORNEY
We look forward to receiving your timely response.
Sincerely,
1s Coan A. Andersen
Evan A. Andersen, Esq.
ce: Mr. Ryan McGinnis
Carolyn €. Wright, Esq.
Page SoS
Law office of Carolyn E. Wright, LLC P.0.Box250208, atlanta, GA 30325 shone 404.496 6606
sxan@photeattomey.com | yww.photoattomey.com 75, 588.5961