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Dear Mr. <removed>:
I am legal counsel for <removed>, who are the heirs of Herman Herzog (the "Artist") and the owners of all subsisting copyrights in the Artist's works of art (the "Works"). Your February 26, 2014 e-mail to Mr. Herzog was forwarded to me for a response.
In light of the fact that you have taken the legal position that Wikimedia Foundation ("WF") is an internet hosting provider entitled to the "safe harbor" protections of section 512 of the Copyright Act of 1976, 17 U.S.C. §§ 101, et seq. (the "Copyright Act"), and without conceding the correctness of your legal position, please be advised that I have sent a DMCA-compliant take-down notice to WF's Designated Agent for the purpose of receiving such notices, Ms. Sue Gardner. A copy of that notice is attached here.
As you will see, the notice applies to all of the Artist's Works that are currently displayed on the Wikimedia website that my clients have determined were first published in the United States with valid copyright notices on dates falling between January 1, 1964 and December 31, 2002, and therefore still within their terms of copyright under the Copyright Act. Please be further advised that my clients are continuing to research the publication histories of all the rest of the Artist's Works, and reserve the right to send Wikimedia additional DMCA take-down notices with respect to those other Works, if and when their research determines that those other Works were also first published in the United States with valid copyright notices on dates falling between January 1, 1964 and December 31, 2002.
Finally, with respect to your request that my clients send you specific "evidence about each painting's first date of publication, location of initial publication, notice of copyright, and any applicable renewals", I assume you are aware that sections 512 (c)(1) and 512 (c)(3)of the Copyright Act do not impose that burden on my clients, and instead require Wikimedia to expeditiously comply with my DMCA-compliant take-down notice regardless of whether they produce the requested evidence at this time. Should anyone file a counter-notification, and/or should this matter lead to litigation, then at the appropriate time my clients will produce all necessary supporting evidence that they have collected to date. Until then, however, I fully expect and demand that Wikimedia expeditiously honor my DMCA-compliant take-down notice without the need for the requested evidence, as required by sections 512 (c)(1) and 512 (c)(3)of the Copyright Act.
All rights reserved.
Sincerely,
<removed>
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avoinigescu@wikimedia.org On Behalf Of Wikimedia Legal
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| To:
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<removed>
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| cc:
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<removed>
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| Date:
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Wednesday, February 26, 2014 11:29 AM
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| Subject:
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Re: Unauthorized Reproduction, Display & Distribution of Copyrighted Paintings of Herman Herzog
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| Content:
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26 files. See attachment (page 3–4)
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Dear Mr. Herzog,
Thank you for reaching out to us about this matter and for your patience.
As a preliminary issue, if you are being represented by an attorney in this matter, ethical rules require me to contact him or her directly. Thus, if this is the case, please forward this e-mail to your attorney and provide me with his or her contact address.
Secondly, I must inform you that the Wikimedia Foundation is only a internet hosting provider, and does not actually create, upload, edit or curate any of the content of Wikipedia or Wikimedia Commons. These projects are entirely produced and administered by communities of contributors who dedicate their time to editing and governing the projects. These communities have extensive policies and processes in place for ensuring that all content is free of copyright restrictions and to delete content that is not. However, copyright law is a complex area, and mistakes are sometimes made.
As a non-profit organization created to facilitate the community's work, our mission is to enable the Wikipedia and Wikimedia Commons communities to widely disseminate free educational materials. Please understand that the Wikimedia Foundation is in a unique situation in that we only have a mandate to circumvent the community processes and directly edit or delete content of the projects in very limited circumstances where we are required to do so under U.S. law as a hosting provider. Of course, I should note that as a hosting provider, the Wikimedia Foundation also enjoys protection from copyright infringement claims based on the activity of its users under 17 U.S. Code § 512.
As you may have been advised by your attorney, the copyright status of the paintings of your great grandfather depends on (i) the dates when each of the paintings was originally published, (ii) the location where each work was initially published, (iii) whether the works, upon first publication, were published with notice of their copyright status, and (iv) in the case of works published before 1964, whether copyright was timely renewed before the 28th year after publication.
Thus, in order to evaluate your claim that these paintings are still covered by copyright law, we would need to see evidence about each painting's first date of publication, location of initial publication, notice of copyright, and any applicable renewals. If you believe you can provide us with sufficient specific evidence to substantiate the claim that one or more of the paintings you've identified are still under copyright, I would encourage you or your attorney to send us a DMCA-compliant take-down request for that painting which lays out all the relevant facts.
If I can be of further assistance, please do not hesitate to contact me.
Sincerely,
Andrei Voinigescu
Legal Counsel
Wikimedia Foundation
On Wed, Jan 29, 2014 at 7:21 PM, <removed> wrote:
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<names removed>
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| To:
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Sue Gardner, Executive Director
Wikimedia Foundation, Inc.
149 New Montgomery Street, Floor 6
San Francisco, CA 94105
Tel.: (415) 839-6885 / Fax: (415) 882-0495
E-mail: sue@wikimedia.org
Sue Gardner, Designated Agent
Wikimedia Foundation, Inc.
c/o CT Corporation System
818 West Seventh Street
Los Angeles, CA 90017
Tel.: (415) 839-6885 / Fax: (415) 882-0495
E-mail: legal@wikimedia.org
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| cc:
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<removed>
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| Date:
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Wed, Jan 29, 2014 at 7:21 PM
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| Subject:
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Unauthorized Reproduction, Display & Distribution of Copyrighted Paintings of Herman Herzog
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| Content:
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26 files. See attachment (page 3–4)
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An attachment to the below has been uploaded as  DMCA Take-Down Notice - Wikimedia 040814 (1)(signed).pdf.
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Dear Ms. Gardner:
Please see the attached letter, which was mailed to you today by certified mail, return receipt requested.
Sincerely,
<removed>
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DMCA Take-Down Notice - Wikimedia 040814 (1)(signed).pdf.