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Aerial photographer's damages claim achieves record height

10 March 2015 - EPUK

A recent court case won by EPUK member Jonathan Webb contains some good news for UK photographers who are drowning in infringements. Whilst the circumstances of this particular case are specific and somewhat unusual, both the elevated level of damages and the "piercing of the corporate veil" set important precedents.


The complete watermarked original image.

Jonathan Webb, a specialist aerial photographer, succeeded in convincing the court to award six times his normal usage fee as compensation for the extreme flagrancy of the defendants, the publisher of the now-defunct website vaevents.com. The judge also took the view that the defendants could not shelter behind their status as directors of a limited company, and were personally liable.

Webb normally charges a flat fee of £150 for credited use of one of his aerial landscape images, or £300 where the client opts to omit a byline. That established his loss of income at £300, but the aggressive degree of flagrancy elevated the award by an additional 500% to £1,800 plus costs. The court issue fee of £205, hearing fee of £335, train fare of £82, and witness fee of £90, plus interest at 4% made a grand total of £2,716.

In the past UK copyright law has seemed to encourage infringement, since the basic premise of a damages claim is merely to restore the revenue lost by unlawful use. If infringers have to pay little more when caught than they would have paid to purchase rights to use legally, it becomes a rational business decision not to pay and hope to evade detection at least some of the time.

As Webb says "Copyright of Intellectual Property worth just a few hundred pounds was effectively unenforceable with legal fees threatening to top £20,000 for a case arguing over a work with only a three figure value".

In common with most professional photographers he was drowning. "In my own case only a very tiny proportion of commercial users of my images were doing so lawfully. The vast majority of people wanting to use my images were simply illegally copying the image from my website and removing any copyright info from my images."

When, in 2011 Google introduced 'search by image' Webb "was shocked to find that almost all of my 45,000 photographs were being infringed often hundreds of times over for a single image. I was at the point of almost giving up and reduced my expenditure on stock photography in the UK dramatically, preferring to invest more in my German photography where copyright infringement is much less of a problem."

IPEC lands in UK

What changed this was the 2012 introduction of the Intellectual Property Enterprise Court (IPEC) and a Small Claims track to provide cheap and accessible resolution of copyright claims under £10,000 in front of specialist judges. Webb has been one of the pioneers of discovering how to use this new "somewhat bureaucratic" legal procedure, and this is the most recent of his many claims including two against law firms. Most settled before a hearing but each of the three cases that went to court has been successful.

Asked why infringers get themselves into this expensive losing situation, Webb thinks that "many try to fob off the claim or ignore the copyright holder. I think a lot of it is because they Google 'copyright infringement' and get a lot of inaccurate information from website forums written by people who have never been involved with a copyright case nor even read the relevant copyright law."

Although there is no concept of punitive damages in the UK law, s97(2) of the 1988 Act has always allowed an uplift in damages where flagrancy has occurred. The Act is also quite clear in s.107 that infringement for commercial purposes is a criminal act as well as a civil tort for which damages can be claimed. Historically awards in the County Court were variable and usually small, and judges seemed to struggle with copyright law. IPEC judges appear more consistent and receptive to flagrancy claims as case law has evolved and a measure of flagrancy has developed that is harsher on egregious infringers. Webb's previous IPEC cases awarded double the normal price plus costs for a small image used on one page of a website, and three times the value plus costs for an image used as a page header throughout an entire site. He adds "I have the impression that the court is supportive of creators rights to be paid for their work and it is a good thing that these cases are heard by judges who are experts in copyright law."

Fetch the chopper

Details of the infringing B%26W copy

Webb says "In November 2013 while working on my website I stumbled on an illegal use of one of my aerial photographs. I was especially annoyed as it was a night aerial photograph which are very difficult to take and had cost me £1,800 to charter the helicopter.  The illegal use was not small either as the copyright infringer had removed all 33 of my copyright watermarks and then used the image as the background for every page of his business website".

"I nearly spilt my coffee on my keyboard. Most of my infringers I save the details and attend to them at a quiet time, however this was a drop-what-you-are-doing case".

"I wrote to the company on the same day and did not receive a reply. I wrote again in January 2014 and again received no reply. In February I wrote a separate letter to the company and each individual director pointing out that as this was a criminal offence they were personally liable and if they didn't pay me I would commence legal action. Unfortunately I still did not receive any form of reply. I then sent each of them a separate "Letter before Claim" in April which for the first time referred to them as "defendants". That got their attention and they sent a short reply in which they claimed not to have received any previous correspondence as their postman had been forging their signatures on the signed for receipts and then not delivering the post! This was later shown in court to be untrue. The letter blamed their web designer and said I should go and chase after them."

On the day before Webb had said he would issue proceedings, in May 2014, the directors filed an application to dissolve the company with Companies House, apparently to escape the imminent litigation. The company had no assets or premises, and only appeared to possess a bank account and a telephone number and had perhaps ceased to exist. This left Webb with little choice but to name the directors personally on the summons as joint tortfeasors along with VA Events Ltd. In general Directors have little personal liability for Limited Company activities, so this looked like a high risk strategy, but as Webb said at the time "this needs to be pursued for moral reasons; we need to know if directors can be held liable."

Waving arms like a helicopter

In court one of the directors attended and represented himself, his co-director and his company. Webb was able to show that the defendants or their agents had painstakingly removed each of the 33 '©www.webbaviation.co.uk' text watermarks that overlaid the image. Attempts had been made to re-draw and clone in missing parts of the image where the watermarks had been, and Webb produced 100% images that showed this. The effort must have taken the infringer many hours. In addition, the defendants had asserted their own copyright via a copyright statement on each page of the site.

The defence arguments can be summarised as "we didn't know it was copyright protected" and "it wasn't us, but our web designer". No evidence was produced for the web designer's alleged involvement, such as a contract, and the web designer was also a liquidated Limited company and could apparently not be located.

The other part of their defence relied on section 97(1) -  perhaps the most misrepresented and misunderstood clause in copyright law. Most of the internet believes this clause is a get-out-of-gaol card that says 'if you didn't know it was copyright, you commit no offence'. As Webb says "this got short shrift from the judge who quoted the Hoffman v Dare judgement. The judge said it was naive to suggest a company involved in promotion and marketing  thought images found on the net were not covered by copyright".

As anticipated, the director argued that any liability on their side should be a liability of the company and not the directors.

Buying the farm

The judge found in Webb's favour and found the directors to be personally liable, quoting MCA Records Inc v Charly Records [2002].

Webb had expected that much of the veil piercing would rest on the defendants apparent abuse of  the corporate veil by dissolving the company to evade liability. Judge Hart did not mention this but referred to the two directors controlling the company alone. The phrase "directing mind" from the above case was used. Webb concurs: "in cases like this the directors must have been party to the decisions around the infringement which was criminal in nature, so they are personally liable".

Regarding flagrancy Webb was shown two letters which the defendants had written to the court describing his claim as "ludicrous and preposterous". As well as denying their own liability and placing blame on the un-contactable web designer, the defendants' letter also stated that Webb was responsible for the infringement because he had put the image on the internet.

Webb points to the 33 copyright watermarks. "There has never been a more clearly copyright-marked photograph displayed. There is no doubt the defendants unwise comments and attitude to copyright contributed greatly to the amount of the flagrancy award and indeed the judge commented on the defendants attitude to copyright in her summing up".

Also coming back to haunt them, the defendants had described the removal of 33 instances of “© www.webbaviation.co.uk” and unlawful use of the image as "inadvertent"! The judge commented the use of this word was misleading and indicative of the defendants attitude. Their removal was described by the judge as ""deliberate, deceitful, calculated and not easy to do with each script being individually removed". This also had the consequence of orphaning the work.

There was also derogatory treatment as the defendants had added their own assertion of copyright on the web page, deliberately removing the claimants copyright statement and inserting their own at the bottom of each web page, which indicated that they knew about copyright.

The overall result was a new record as far as uplift for flagrancy is concerned, and also a weakening of impunity for company directors who criminally infringe copyright. It is also a validation of visible watermarking as a protection mechanism, and that tampering with or removing them is evidence of substantial flagrancy and grounds for elevated damages. 

For Webb "the most important thing is not the £2,716 I will get from the defendant, but the fact that the defendant has to pay £1,800 for a £300 picture, plus costs, which will deter other image users from infringing my work. This will be worth far more in extra sales from people who will now buy instead of infringe". And as Webb points out "copyright law works exactly the same for musicians, authors, composers or any other creative. I think this latest judgement is good news to all of us, whatever branch of the creative arts we are in."

Photos © www.webbaviation.de

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Comments

What great news for UK Photographers, and artists.
Congratulations Jonathon, your success will no doubt help others in the future, and hopefully go a long way to discouraging copyright infringement.
Thank you.

Comment 1: Randell John, 11 March 2015, 08:11 PM

Thank you Jonathan for following this through to it’s wonderful conclusion. I’m sure it would have been easier to give in and more lucrative to concentrate on other projects but instead you have provided help and inspiration to countless photographers. Well done and thank you again.

Comment 2: Clare Woolford, 11 March 2015, 11:05 PM

Simply brilliant!

Comment 3: Pete Jenkins , 11 March 2015, 11:55 PM

Further info for those who need it:

Details of this judgement have not yet been published, but the case details are:

Jonathan C K Webb (Claimant:)
vs
1.VA EVENTS LIMITED, Company No. 07400868
2.Mr Carl Jason Austin
3.Mr Dale Stanley Vicker
(Defendants)

Case number IP14S01982, heard in the High Court, Chancery Division, Intellectual Property Enterprise Court (the IPEC), before District Judge Hart, 5th March 2015.

You can read Jonathan Webb’s own account at http://www.webbaviation.co.uk/court-report.html

Comment 4: Tony Sleep, 12 March 2015, 01:05 PM

Thank you Jonathan for your exemplary and sterling work and persistence.

As one of the small team of photographers at AOP who steered the new tighter rights for visual creators and artists through Parliament some years ago I am thrilled to see the doggedness of such as you, supporting rights and worth that we all as professionals seem to have been losing ground over these last digital years with impunity.

Your inspiration, example and unique efforts are so, so appreciated. For all of us I thank you and hold your efforts in the highest esteem and profoundest regard. Well done, sir, well done!

Comment 5: Jonathan Trapman, 14 March 2015, 07:19 AM

Congratulations Jonathan,

A win for those who do the heavy lifting of being creative, taking risks, and dare to be on their own! Congratulations to the judge(s) who realize our society is richer for individual effort and business honesty.

I have a few who appreciate my aerial work so much they’ve taken it also. They think its easier to steal than to do a simple business transaction called paying for what you use. The funny thing is how, like cattle thieves in western movies, they try to re-brand stolen property then claim it as their own.

Every photographer who makes a living taking photos needs to take their infringers to court. Its not just that someone stole something from you or that you might get the court to side with you. No, its far more important. By asserting your right to copyright, you are protecting the very concept that you have a right to own your work. If you don’t stand up for yourself, then nobody will stand for you.

Good job Jonathan… this case ought to be printed and emailed to everyone in the arts.

Jim Cordes

Comment 6: James Cordes, 14 March 2015, 05:38 PM

I’m pleased to add my congratulations, Jonathan. At last it seems you guys now have a clear path that gives enforceability to your copyright laws. We, across the pond, have no such remedy. You can’t even get an attorney unless the image(s) are prior registered with the Copyright Office, as I’m sure you’re aware.

Wholesale infringers, (think Publishers) take 1000% advantage of that, lawyering the would be plaintiff to death. I’m presently in the fourth year litigating with one, fortunately the infringement was on the cover of a many-million-dollar best seller, 1.75×2.5 inches.

I thought we had settled two weeks ago, but another spike strip has been thrown, now we’re only forced to use up a bunch more paper & court time. The good news is that the settlement offers are now well into six figures and climbing; but approaching five years of depositions, motions, phone calls, emails, postponements, extensions, ad absurdum!

One could but wish for a similar Small Claims path here, one that didn’t require hundreds of thousands worth of legal expertise in order to prevail!

For those interested in following the case:

WARREN V. WILEY

At it’s conclusion, later this year - that’s if we don’t have to go to trial - I intend to spend some of the proceeds touring the UK, and some pub tabs owed to Tony et al…

Hail EPUK!

William Warren

williamjameswarren.com

Comment 7: William Warren, 14 March 2015, 09:04 PM

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