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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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Al, We are currently preparing a new website and planning

Resolved Question:

Hi All, We are currently preparing a new website and planning to add new hotels in our new website. One of my staff was preparing the hotel list for other destinations but we are not selling those new destinations. we also started adding hotels in USA without any trading with USA region as we were planning to add in our hotel list only. One of the hotel which was added in our list for that particular hotel and that picture read on bottom name of a company which owed that hotel picture. Now I received email from that company in USA and they said we were in copyright infringement by using that picture and asking to pay them $ 900/= I have replied them that we are not trading with USA region and also we deleted all hotels we were preparing list for USA region. Can you please advise whether we should pay him this much $900 for a picture which was never used to generate any revenue? Awaiting your comments

Submitted: 1 year ago.
Category: Law
Expert:  Ash replied 1 year ago.
Hello my name is ***** ***** I will help you.
Is this a UK law question?
Customer: replied 1 year ago.

Hi Alex, Thanks for your reply. Our company is based in UK. and the company who is asking to pay them $900 is based in USA

Expert:  Ash replied 1 year ago.
Any written contract? If so which country is it governed by, does it say?
Customer: replied 1 year ago.

Hi Alex, Hotel picture is related to USA and he is claiming that he is claiming that image is owned by his company under below ref

You may find evidence of our ownership at

> http://www.copyright.gov/records/ for said image under Registration

> Number: VAU000981647.

Customer: replied 1 year ago.

This Picture is for hotel in USA. he company who is asking to pay them $900 is also based in USA. here is their email where they claimed the ownership of that image:

You may find evidence of our ownership at

> http://www.copyright.gov/records/ for said image under Registration

> Number: VAU000981647.

Expert:  Ash replied 1 year ago.
Ok. I would not worry about it. They can't issue proceedings here in the UK as they are in the USA. Therefore even if they issued proceedings in the USA they couldnt enforce in the UK. There is no UK contract.
I would not worry and therefore their is no claim.
Can I clarify anything for you about this today please?
Alex
Customer: replied 1 year ago.

he sent us this message today morning, pls see and advise your comments:

Be advised that being in the UK does not exempt you from copyright infringement. The Berne Convention, states that once a work is protected in one of the Convention member countries, it is protected by copyright in all of them. The U.S. and U.K. belong to the Berne Convention.

Regards

Expert:  Ash replied 1 year ago.
Indeed, but USA Judgments cant be enforced in the UK and they wont get a UK Judgment as there is no UK contract.
Does that help?
Alex
Customer: replied 1 year ago.

Alright, The last question

If he gets a USA Judgement then what will happen, will they file here in UK court on those basis?

Is he just trying to get money out of us?

Expert:  Ash replied 1 year ago.
Yes he is.
Alex
Customer: replied 1 year ago.

Then Why he is referring to Berne Convention? What does it mean? Kindly advise your comments. Thanks

Expert:  Ash replied 1 year ago.
The full title is the Berne Convention for the Protection of Literary and Artistic Works. It was first adopted in 1886 as an agreement to honour the rights of all authors who are nationals of countries that are party to the convention. The current version of the convention is the Paris Act of 1971. The convention is administered by the World Intellectual Property Organization.
The member countries form a Union, and the Act provides protection for the work of authors who are nationals of one of the countries of the Union, or where the work is first published (or simultaneously published) in a country that is a member of the Union.
It is a breach of copyright Convention which the UK signs up to. However he would need to show a UK based contract to bring a claim in the UK and given his claim is for $900 it would be a small claim. Any claim for £10,000 or less is a small claim and therefore legal costs are not recoverable.
Does that help?
Alex
Customer: replied 1 year ago.

I really appreciate your response.

He said just a while ago as below:

Before I refer the matter to our counsel, I take it you won't be settling this matter amicably? Be advised after this matter is escalated the settlement offer no longer applies. Anyone who copies, publicly displays or publicly distributes a photograph, infringes the copyright whether it was aware that the use was infringing or not. If this is not resolved, I will be forced to forward this matter to our counsel who will then pursue a larger amount of $5,000.

Expert:  Ash replied 1 year ago.
This would still be a small claim in the UK and no legal costs can be recovered, save for the Court issue and hearing fee.
Alex
Customer: replied 1 year ago.

How should I reply to him about his claim? What should I tell him?

Expert:  Ash replied 1 year ago.
Ignore it, they can't do anything........
Otherwise you will just end up with protracted correspondence.
Alex
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience: Solicitor with 5+ years experience
Ash and other Law Specialists are ready to help you
Customer: replied 1 year ago.

Dear Alex

if he claims more than £10k then what would happen?

Customer: replied 1 year ago.

SETTLEMENT AGREEMENT AND GENERAL RELEASE
This Settlement Agreement and General Release (“Agreement”) is entered into by and between Destination360 Inc., a Nevada corporation whose address is 3450 East Russell Road, Las Vegas, NV 89120 (“D360”) and Dawn Travels, a UK corporation whose address is Dawn Travels Ltd, MWB 43 Temple Row, Suite Number: 309, Birmingham B2 5LS, England. Destination360 and Dawn Travels shall be referred to herein collectively as the “Parties.”
WHEREAS, Dawn Travels utilized artwork owned by Destination360 (artwork shown here - http://www.destination360.com/north-america/us/nevada/las-vegas/paris - the "Image") without permission:
WHEREAS, the Parties now wish to settle all issues and claims between them.
NOW THEREFORE, in consideration of the mutual covenants, promises and conditions set forth herein, the adequacy of which are hereby acknowledged by each of the Parties, the Parties agree as follows: 1. CONSIDERATION AND DISMISSAL AND RELEASE OF CLAIMS 1.1 Within a reasonable time following final execution hereof, Dawn Travels will pay to Destination360 an amount totaling £900.00. Said payment shall represent the entirety of Dawn Travels’ obligation to Destination360 relating to any use, license, and alleged infringement of any kind regarding the Image. Dawn Travels must remove the Image from its server. 1.2 Upon execution of this Agreement by the Parties and Dawn Travels removal of the Image, Destination360 will on his own behalf and on behalf of his past and present companies, subsidiaries, affiliates, partners, shareholders, principals, officers, directors, members, predecessors, successors, heirs, executors, conservators, trustees, employees, former employees, agents, representatives, attorneys, administrators, transferees, and assigns, hereby forever and irrevocably releases, discharges, and covenants not to sue Dawn Travels and its respective past and present companies, subsidiaries, affiliates, partners, shareholders, principals, officers, directors, members, predecessors, successors, heirs, executors, conservators, trustees, employees, former employees, agents, representatives, attorneys, administrators and transferees, with regard to any and all rights, claims, demands, costs, expenses, attorneys fees, causes of action, debts, obligations, and liabilities, of any kind or nature, in law, equity, or otherwise, whether known or unknown, suspected and unsuspected, disclosed or undisclosed, that it had, now has, or may have in the future, arising out of any and all conduct or matters occurring prior to the date hereof, whether known or unknown.
§1542 WAIVER. With respect to the matters released herein, Destination360 expressly waives any and all rights under §1542 of the Civil Code of the State of California, which provides as follows:
A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release which, if known by him or her must have materially affected his or her settlement with the debtor. 2. ATTORNEYS’ FEES AND COSTS. Each Party shall bear its own costs and Attorneys’ fees incurred in connection with the drafting and execution of this Agreement.
3. INTEGRATION. This Agreement shall be deemed fully integrated. As such, it represents the sole and entire agreement between the Parties regarding debt collections and supersedes all prior agreements, negotiations, discussions, and understandings, whether oral or in writing, between the Parties and/or their representatives.
4. WAIVER AND AMENDMENT. The provisions of this Agreement may be waived, altered, amended, or repealed, in whole or in part, only upon the express written consent of the Parties.
5. NO IMPLIED WAIVER OF BREACH. No breach of any provision of this Agreement shall be deemed waived unless the waiver is in writing signed by a duly authorized representative of the waiving party. Waiver of
any one breach shall not be deemed a waiver of any other breach of the same or any other provision of this Agreement.
6. REPRESENTATION BY COUNSEL. The Parties acknowledge that they have been represented by independent legal counsel of their own selection, that all Parties have reviewed this Agreement, and that they are fully aware of its contents and have been advised of its legal effect. Counsel for each of the Parties to this Agreement has fully explained to their clients the legal effect of this Agreement and of the releases and the dismissal with prejudice provided for herein and that the settlement and compromise stated herein is final and conclusive forthwith, and each party has freely consented to and authorized this Agreement.
7. GOVERNING LAW / VENUE. This agreement shall be governed by the Berne Convention for the Protection of Literary and Artistic Works, and jurisdiction shall be the courts of the World Intellectual Property Organization.
8. SEVERABILITY. The provisions of this Agreement are severable. If any provision is held to be invalid or unenforceable, it shall not affect the validity or enforceability of any other provision.
9. HEIRS AND SUCCESSORS. The terms of this Agreement are, and shall be, binding upon, and enforceable by, the Parties, and any and all heirs, successors, assigns, creditors, successors-by-merger, parent corporations, subsidiaries, directors, officers, general partners, limited partners, agents, attorneys, heirs, and upon all other persons and entities claiming an interest in the subject matter hereof through any of the Parties.
10. INCUMBENCY. Each signatory to this Agreement represents and warrants that he/she is fully authorized to enter into the terms and conditions of, and to execute and be bound by, this Agreement.
11. CONFIDENTIALITY. The Parties shall not disclose the terms of this Settlement Agreement to anyone except as required by law, and may only comment to third parties that the matter has been settled satisfactorily for both sides.
In witness whereof, the Parties hereto have executed this confidential settlement agreement and general release on the dates indicated below.

Expert:  Ash replied 1 year ago.
What would you like to know about this?
Customer: replied 1 year ago.

Hi I received this contract copy from the company in USA asking to pay $900 for this image and saying they can finish the issue if we send them $900 and sign this agreement?

What should we do with it?

Also if we don't agree with that company and in case if they file a claim more than £10k in UK then what would happen?

Expert:  Ash replied 1 year ago.
Ignore it.
If they file a claim more than £10k you can defend it on the basis the US company does not have jurisdiction.
Alex
Expert:  Ash replied 1 year ago.
Hi
I am just following up to see if there is anything else I can help with?
If you have not done so already might I ask you to rate my answer before you go today please, the button should be at the bottom of the screen.
If you need more help please click reply.
Alex
Customer: replied 1 year ago.

Many Thanks for your follow up. I have closed the issue with that company and I appreciate your valuable information. Many thanks

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