Web Hosting Talk : Other Forums : Web Hosting Lounge : is this cease and decist request legal ??

[MarcD]

I have a client who has a modeling site. He recieved a email from his previous landlord saying that he has to remove all pictures taken at his place of resident down from his site.

As the lease said he would not operate a business from there

He has 3 pictures taken in his house next to a fireplace thing.

I dont think this is legal that is not really operating a business but I am not a lawyer and have no knowledge in this field


What do you think ?

O ya it was not a certified letter just an email. We have not had any contact from them.

Here was the email


SENT VIA EMAIL TO ADDRESSES ABOVE
> > >
> > > RE: PHOTOS CONTAINED IN XXXXXXXXXXXXXXX
> > >
> > > Dear XXXXXXXXXXXXXXXXXXX
> > >
> > > As you are aware, the lease which you signed on
> > > November 1, 2002 restricted you from conducting
> and
> > > operating a business from the property. It is
> > > obvious from the pictures contained in
> > > XXXXXXXXXXX that you did so.
> > >
> > > My clients are demanding that any photos taken
> at
> > > the property, or which contain images of any
> part of
> > > the property, be removed from XXXXXXXXXXXXX
> > > immediately.
> > >
> > > Failure to do so will result in my client
> seeking a
> > > court order instructing you to do so.
> Furthermore,
> > > they will seek a judgment to share in any income
> > > derived from XXXXXXXXXXXX since November 1,
> > > 2002, plus damages, attorney's fees, and court
> cost.
> > >
> > > Please notify me when you have complied.
> > >
> > > Regards,
> > >
> > > XXXXXXXXXXXXXXXX
> > >
> > >
> > > cc: XXXXXXXXXXXXXX
> > > (XXXXXXXXXXXXXXX

[MGCJerry]

I'm not a lawyer, but I think this is BS. That would be like telling someone to delete their files that were created on a different computer.

Anyways, I'd have a lawyer look over it to see if they can do anything, but I wouldnt worrry about it till you receive a letter from an lawyer.

Just my opinion, so please take it as such.

[Lesli]

Have your client run the letter past a lawyer. It sounds like a landlord getting snarky for little reason. (Of course, if the house is a famous landmark and recognisable in the photos as being in that house or location, then there may possibly be something to the landlord's complaint.) You really can't judge. Your client is going to have to do more footwork on this issue.

I kind of doubt that, if the former landlord chose to take legal action, that they'd be able to come after you. If they tried, they'd have to have you take the account out of comission based on your client violating your TOS / AUP.

EDIT: thinking...

An argument that can be used is "why was there a clause about not operating a business on the premises? Probably it's put in place to avoid extra traffic and / or damages to said property. If that's the case, then the former landlord would have to prove that there were damages to said property. If they can prove that, then they're probably legally entitled to get money for any repairs (either up-front or reimbursement), depending on how the lease was worded. Otherwise, they just sound like they are trying to make a money grab. (Again, this may fly out the window if the premises in question were something like a historical landmark or an otherwise highly visible but not publicly accessible (without fee) location - Hearst Castle, just to use an example.)

[SteveD3]

I had a client get a C&D letter once, I just asked my lawer what he thought about it. He said it was crap, and wouldnt hold water. Does your company have a lawyer? If so I suggest letting him\her look at it. IMO MGCJerry had a point with, unless you get a certified letter from a lawfirm, dont loose sleep on it.

[MarcD]

Good points thank you.

We have a small retainer fee paid to a lawyer. However not going to use it on this =)

The shot is really stupid It is a simple fireplace that I have seen in a thousand town houses.

I guess him and the landlord had a falling out and they moved out everything was fine on the lease as far as my client leaving so it seems the landlord is trying to get back anyway he can.

[SoftWareRevue]

You'll know when you get one that is legit.

[WII-Aaron]

We have a full time attorney on staff and here is what he said in a nutshell:

Unless the lease had something to the effect that if a business was run there would be profit sharing the landlord's only recourse is to terminate the lease.

Of course, the guy can still sue. But it's 90% that it would be dismissed and he would be ordered to pay court costs.


Aaron

[JayC]

I don't see that there'd be any connection between the two different issues: using the pictures on the site, having operated a business on the premise in violation of the lease.

If the tenant had been found to be operating a business while living there, there'd have been recourse. Without reading the lease or being familiar with local laws it's impossible to say what that recourse would be, but it's possible the lease could have been terminated. But if he's not living there anymore, the issue is moot unless there was some very extraordinary clause in the lease spelling out some arrangement like profit sharing, as mentioned earlier. It's not likely that's the case; probably the lease just said that he can't operate a business on the property.

Using the photos now is a separate issue. In general, though, the landlord would have no basis to stop it. A photographer under some circumstances may have to get permission from a person in order to use photos of that person, but the same rules don't apply to a place. Other than places covered by specific laws (certain government installations, the security area at airports, etc.) a property owner may request that you not take photos but generally would have no legal way to prevent you from publishing photos you've taken of the building on the web.

Disclaimer: I am not a lawyer, but I played on in the school play.

[MarcD]

Thanks for your help guys =)

I have shown him this thread

[hostpath.com]

Crap like this annoys me. I didn't ask my attorney, but just on the surface of it I can't see how they'd have any case whatsoever, and even if they did an e-mail is not legally sufficient notice.

[ljprevo]

I do have a on staff attorney where I work and showed this to him.

The clause really is to not use the property as a business, that is fine.
Only thing you have to do is not list the business address as the property address, get a PO Box.

Landlord can't dictate what you can do in your personal life.

The only thing here is you can't use the property as a brick and mortar business where customers show up and you have a big sign out front, that is all the landlord can dictate.

HOWEVER

If the pictures are displaying their property, YES they can demand that they not be displayed.

Our attorney said that what ever you are selling, take your pictures from elsewhere, get a PO Box, don't use the property address as the business address, you will be fine.

[kneadingu]

My first thought was tell the sender to GFY. I would ignore the email because even if the landlord had a case the only recourse would be to terminate the lease. Since the person no longer lives there the landlord's case is mute.

Now regarding the landlord crying about their property being depicted. If all that is depicted in the photos are the interior the ex-landlord is SOL. The interior of the dwelling is arguably not unique by merit of the fact that the tenant decorated the same uniquely.

Furthermore the exlandlord would need to prove damages as a result of the images being used.

If any of the images depict the exterior and/or address of the property I would remove them.

[JayC]

Originally posted by kneadingu
Furthermore the exlandlord would need to prove damages as a result of the images being used.

If any of the images depict the exterior and/or address of the property I would remove them.

Hmm... I took the first post as implying that these were interior shots but I guess it doesn't actually say that. So, yes, if the photographer is making money of photos, or attempting to (that is, this doesn't apply if you take a picture and just keep it in your photo album; it's if the photo is "an article of commerce), he'd need a model release for a recognizable image of the exterior of a building just as he would for a recognizable shot of a person that was used in that way.

For the interior shots, again you need permission for use of images of "recognizable personal property." If a picture included a painting on the wall that belonged to the landlord, that's one thing -- if a shot included a sofa that belonged to the tenant, it's his personal property and he can use it in his photography if he wants to.

The complication here is that the photographer was living there when the photos were taken. So arguably would he have had the right to give that permission? I don't know, and it probably differs state to state since landlord-tenant laws vary widely as to which property rights belong to which party.

If it was the case that the landlord had that right, though, he wouldn't have to prove any damages -- if profit was made from the photos, he'd have a case for demanding a share of that profit.

[Bling Bling]

Its just BS,when you sign a lease that means that your renting/leasing a place for a certain amount of time.The only thing you must follow are the guidelines that are in the contract (like not making holes in the walls,etc).


But if the pictures were taken outside of the house were it can be identified then thats a differnt story.Also the lanlord doesnt have proof a bussiness was being ran when the contract lease was in effect,all you would have to say is that it was a hobby.