For Settlement Purposes Only, Subject to F.R.E.408 May 23,2011 VIA Priority Mail with Delivery Confirmation and Email

Re: Dear Mr.


of Ryan McGinnis' Copyright

If is represented by an attorney, please forward this letter immediately 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, r ') is using Mr. McGinnis' photograph Nebraska Skyline at Night ({{Photograph") without permission on its website advertise the Lincoln Marathon. The Photograph at issue is shown here:
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By ryaorncginoisphoto
Ryan McGinnis + Add Contact

This photo was taken on September Canon EOS 20!l 1111113 2

28, 2000 using a


This photo oetonqs to


photostream (3,4(14)

Lincoln • nebraska • night • skjlline • capitol • travel • •


lincoln Nebraska skyline at n;ghl.

.. .-_. "' _ _ _



building holiday

• america

• tourism

• skyscraper.;


@ All Rights ReselYed


ReQuest 10 Jice~se ryanm:ginnisphoto's




Page 1 of 5 Law Office of Carolyn E. Wright, LLC P.O. Box 250208, Atlanta, GA 30325 phone 404.496.6606 fax 775.588.5961


. took Mr. McGinnis' Photograph without authorization of Mr. McGinnis or the law from and is using the Photograph at blog/lincoln-marathon/, as shown in part below:

ISearch ...


October 2010 D'e,cember 2009


--- - - - --

S~p:tembe~ 3D~O November 2009 October 2009 September



August 2009 July 2009 June 2009 May 2009 April 2009 March 2009

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February 2,[]09 -- -January 20(19 December 2008 November 2008 October 2008 September 2008 August 2008

July 2.009 June 2008 May 2008 April 1008 March 2008 February 2008 January 2008 At first I was leaning towards the satt lake city Marathon, but I decided to do some investigatillg. The Lincoln Merathcn is a true course. start and finish are in the same pla-ce and It'S at a lower elevation, about 1.2k feet above sea level. SLC at 4,330 feet above sea level, and the course is slightly downhill with a net

Moy 2011

Book Reviews (8.) Business 101

A review of Mr. McGinnis' licenses does not include

. 's use of his Photograph.


. )'s use of is clear; the

the Photograph without permission constitutes copyright infringement. only question is the extent of damages to be paid.

The infringement

MR. MCGINNIS' RIGHTS UNDER U.S. COPYRIGHT LAW United States Copyright Law grants exclusive rights to the photographer image, including the rights to: of an image for use of that

Page 2 of 5 Law Office of Carolyn E. Wright, LLC P.O. Box 250208, Atlanta, GA 30325 phone 404.496.6606 fax 775.588.5961


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 of the infringement. See 17 USC §504. Since Mr. McGinnis' Photograph was registered with the U.S. Copyright Office prior to ~ , 's 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 aI., 271 F.Supp.2d 737 (D. Md., July 10,2003): "[W]illfulness" 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 willfulness. See Castle Rock Entm't v. Carol Publ'g Group, Inc., 955 F.Supp. 260, 267 (S.D.N.Y.1997). Accordingly, I '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. 2. Cease any further use of his Photograph; and Provide an accounting of all of I'S uses of his Photograph.

Page 3 of 5

Law Office of Carolyn E. Wright,


P.O. Box 250208, Atlanta, GA 30325

phone 404.496.6606 fax 775.588.5961


) is on notice that litigation is likely regarding its actions concerning Mr. McGinnis' Photograph. ) is 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.jnainframes, individual computer workstations, and external drives, or are located on any of those devices within r . 's control but not owned by Runcolo, such as its web host. Specifically, but not exclusively, r '_ 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 I - 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.

Mr. McGinnis is willing to forego his claim against -' for copyright infringement 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 4 of 5

in this matter if

Law Office of Carolyn E. Wright,


P.O. Box 250208, Atlanta, GA 30325

phone 404.496.6606 fax 775.588.5961


We look forward to receiving your timely response. Sincerely,

Evan A. Andersen, Esq. cc: Mr. Ryan McGinnis Carolyn E. Wright, Esq.

Page 5 of 5

Law Office of Carolyn E. Wright, LLC P.O. Box 250208, Atlanta, GA 30325 I

phone 404.496.6606 fax 775.588.5961