In the dispute between photographer and blogger Kathy Mormino and Survival Magazine, an online-only publication about survivalism, very little is agreed upon.
According to Mormino, she learned that Survival Magazine was using a photo she had taken on their Facebook page as a means to promote an article about raising chickens. Mormino claims to have tried to contact the magazine directly through both email and by commenting on the post. However, when she didn’t get a response, she filed a DMCA notice with Facebook, which promptly removed the image.
According to Survival Magazine, Mormino never attempted to get in touch with them and filed a takedown notice over multiple items, including many that had nothing to do with her. Mormino has since provided a screenshot over a Facebook comment she posted and submitted a copy of Facebook’s response, which showed only one item being complained about, the photo in question.
Either way, what happened next is not up for debate. Someone from Survival Magazine then wrote Mormino with the subject line “You’re an ***hole Kathy” and proceeded to insult her and threaten to sue her for the costs of the promotion of the post and legal fees, which the email estimated at being between $5,000 and $10,000.
Rather than be intimidated, Mormino posted the tale to her Facebook page, where it rapidly became the talk of photography and advertising circles.
The backlash against Survival Magazine has been swift. The publication has already removed their Facebook Page and their Twitter account has been barraged with people decrying their response.
No matter what one may think about the actual dispute, one thing has become very clear, Survival Magazine is a case study in how not to respond to a legal dispute and what the consequences are for getting it wrong.
The Wrong Answer
Back in 2007 I wrote an article entitled “What to Do If You Get a DMCA Notice.” The advice holds up just as well in 2014 as it did then.
However, one thing that I didn’t spell out was that, if you have a need or a reason to contact the complaining party, it’s important to communicate with them in a professional manner.
In a perfect world, all communication over legal disputes would be handled by attorneys. However, that simply isn’t practical, especially for minor disputes. While you should always consider having an attorney handle all communications, if you have to handle it yourself, the most important things are to be honest and be professional.
The letter Survival Magazine sent was neither. It made threats that, so far at least, have not come to any fruition and the use of course language, name calling, etc. makes it a far less-than-professional work.
Even if we completely accept Survival Magazine’s version of the story, which evidence seems to debunk at least some of it, there was nothing gained by them sending an angry, unprofessional and threatening letter.
All that it did was condemn them in the court of public opinion and create a backlash that forced them to close their Facebook page and has been a major distraction from their other efforts.
In short, even before any legal action has been filed, Survival Magazine comes out the loser in the dispute. Barring some kind of revelation, there isn’t much that they can do to turn the story around.
It’s important to remember that anything you say on the Internet, even if you say it in private, could easily become public. This is why it’s important to make sure that our words are a representative of who we are at all times.
This isn’t easy, especially in moments of anger, but it is important to remain calm and respond to situations in a way that would not put us in an awkward position if the facts became public.
In a legal dispute, that makes even more sense. Even if Mormino hadn’t published the letter, if the issue had escalated to an actual lawsuit, the letter would have come out then as a part of the lawsuit. That not only would have made it a matter of public record, but also would have the additional impact of negatively impacting the perspective a judge or jury might have.
In short, no matter what, this letter was misguided and wrongheaded. But while it’s easy to say that it was just the action of one person or one company, the truth is, when confronted with legal disputes, many people act in a way that’s very unbecoming.
But when it comes to legal disputes, most of the time, cooler heads really do prevail.