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Copyright infringements by MPs, taxation of interest on Payment Protection Insurance payouts, compulsory self-billing, the PLUS registry, finding a good copyright lawyer and ‘Stolen photographs: what to do?’ – Simon Crofts’ excellent article published right here on the EPUK web site.
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Stolen photographs: what to do?
Your copyright, what you are entitled to claim from an infringer, and how to assemble and present a claim, are all discussed in detail here.
18 November 2011
Author Simon Crofts is a professional photographer and EPUK member. He studied law at Oxford University, and subsequently worked for ten years as a corporate finance lawyer at leading international law firm Linklaters in London and Moscow before he became a photographer.
This article is intended as a discussion piece to stir debate, and to help photographers avoid pitfalls in the period before they go to see their lawyer. It should not be relied upon as legal advice, and is no substitute for obtaining independent legal advice on the specific merits and conduct of your own claim
This document is Copyright material. You may download and print it for personal use. You may quote short extracts with attribution to “EPUK/Simon Crofts” and a link to the original article at http://www.epuk.org/Opinion/994/stolen-photographs-what-to-do. Full moral rights are asserted. You may not alter it or sell it. The sample letters at the end of the article may be freely adapted and used by copyright holders for the purposes of copyright enforcement. Copyright in the article remains with the respective authors, but please address inquiries to firstname.lastname@example.org.
Use it or lose it
Copyright protection for photographs in the UK has historically been feeble, at least compared to the US where photographers have heavy legal weapons available to them, including eye-watering levels of statutory damages for registered photos. The US, with the economic importance of Silicon Valley and Hollywood, has always taken IP seriously, while in the UK intellectual property has traditionally been a poor third cousin. Damages for photographers in the UK for breach of copyright have become so low that photographers often believe that breaches are scarcely worth pursuing (often they are right), and copyright abuse has become systematic and rampant. In this situation, photographers should not be ashamed to use whatever rights they do have to protect their property wherever possible. a ray of hope for photographers in the form of effective image recognition capabilities in the Google image search engine. Picscout and Tineye also offer ways to find where a specific image is being published on the internet. But this tool has limited value for photographers unless they are able to claim reasonable levels of damages for the image thefts that it reveals.
One of the reasons for the extremely low value of damages typically recovered by photographers is a popular belief, not only among infringers but even among photographers themselves, that the amount that infringers have to pay if caught will only be the same as if they’d asked permission to publish in the first place. Publishers may not see any incentive to seek permission in advance. The chances are (though this is changing with tools like Google image recognition) they won’t be caught and damages would be minimal anyway, so why bother?
A good IP lawyer will be able to advise about your options, but the great majority of claims will have no professional help and it is therefore very important that the photographer has some idea of what their rights are in order to assess how much to claim for an infringement and whether it is worth going to court or speaking to a lawyer.
UK copyright law is not in fact quite as emasculated as it may seem. But there is a danger that legal rights become atrophied through lack of use. The courts become unused to awarding substantial damages for breach of copyright, and this becomes the market norm.
As a photographer the first contact that you have with an infringer is very important – it sets the expectations for the amount of the claim, and if done badly it can severely limit your options before you have had a chance to get any legal advice. The second part of this article makes some suggestions about that all-important initial correspondence.
Playing conkers with that old chestnut – the starting point for damages
First, turning to that idea that photographers are only entitled to claim what they would have charged if they had been asked to issue a licence in the first place. There is an element of truth in it, it is indeed the starting point for calculating damages – but it is only a starting point. The first purpose of damages is, so far as possible, to put the photographer as closely as possible in the position as if the breach had not happened. Of course that is not possible. The breach did happen, so the law instead first of all tries to evaluate the amount of financial loss suffered, and compensates accordingly, putting the photographer financially in the same position as if the breach had not happened. The usual way to do this is to work out how much you would have charged for such a licence. But the law often goes beyond this purely compensatory approach, and awards additional, or even punitive, damages.
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