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Jonathan Webb infringement

Cardiff Steal

9 December 2018 - EPUK

 

Court awards damages of £2851.42 for a single infringing image on a website

In 2015 EPUK member and photographer Jonathan Webb won a particularly flagrant case that set a record multiplier for  damages, and also held company directors personally liable despite the  protections limited company status offers. Webb has now set a further precedent, achieving an award for time spent dealing with an infringement. Moreover, he obtained permission from the High Court to publish a transcript of the judgement. 

Webb says that this infringement is absolutely typical of the majority of the cases he comes across, with the image being used for marketing on the website of a construction company. The photograph showed a cricket ground where they apparently carried out some significant construction work and the infringing copy was displayed on their Cardiff Steel Erection Ltd website.

The original was one of a number of high resolution images which Webb publishes on his own website as samples of his aerial photographic work. That photo has numerous copyright 'watermarks' spread across the image. The image used by the defendant had been reduced considerably in size with the effect that the copyright notices were illegible on the infringing version.

The original also contained embedded rights management metadata, including copyright notices and contact information which had been removed on the infringing version.

Paperchase

Before issuing a claim, the photographer complied with the Civil Procedure Rules (CPR) Pre-Action Conduct by allowing the defendant plenty of opportunity to settle his payment demand. After three letters and an email, their only response was a single short email blaming the defendant's web designer. Despite being told that this defence had no reasonable prospect of success, the defendant made no offer of payment. Webb had little choice but to issue a claim in the High Court.

The photographer claimed £1560.00 plus interest, costs and expenses. This is 4x the £390 he would normally charge to licence an image for use without attribution, with additional damages being claimed pursuant to section 97(2) of the Copyright Designs and Patents Act 1988. This allows the court to award additional damages where the infringement is "Flagrant". Also Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights states that damages must be "Dissuasive". That is, damages must be sufficient to dissuade the infringer from re-offending, and also to dissuade other potential infringers from offending in the first place.

The cost of being unreasonable

The defendant filed a short written defence with the court, still blaming the whole thing on their web designer. The Directors of the Company were again informed that this defence had no reasonable prospect of success as the company is responsible for its website, not those it employs to build it for them. The Court has repeatedly ruled this to be the case and the case of David Hoffman vs DARE was cited.

Unusually, Webb asked the court to award additional expenses on the grounds of unreasonable behaviour under Civil Procedure Rules.

Normally, in a small claims track case, litigants cannot claim for their time spent on the case bar a limited "witness fee" for attendance to the hearing. However CPR 27.14,2(g) allows the court to award litigants additional expenses for their time, even in the Small Claims Track, where a party has been unreasonable.

The general principle of the Civil Procedure rules is that the parties should make reasonable efforts to settle the case between themselves, including exchanging information about their respective positions. Webb argued that the defendant was unreasonable in pursuing a defence which had no reasonable prospect of success, and in not making any real effort to settle the matter out of court. He claimed £19 per hour for the time spent on the case pursuant to the Litigants in Person (Costs and Expenses) Act 1975.

The court agreed. Webb was awarded £2851.42, comprised of £1500.00 damages, £306.72 interest, £285.00 Court Fees and £759.70 Litigant's in person costs.

Of particular note was this award of £759.70 additional expenses pursuant CPR 27.14,2(g). In essence this was the cost of following the bad advice given on many Copyright Infringement forums and websites where readers are given all sorts of wrong advice to ignore legitimate claims. That advice is completely detached from the reality of the law in the UK and most other countries. Advising copyright infringers to ignore legitimate claims only serves to massively increase costs for the infringer. There's little excuse for ignorance: all the relevant Statute Law and quite a bit of Case Law can be read online so anyone can look it up and make a sensible decision on whether they have infringed copyright or not.

It makes sense to check out that Copyright Infringement Claims are genuine, but most photographers are easy to find. In order to sell their work, a photographer's name and images are usually a single Google query away. The defendant could have quickly verified that the claim was bona fide. He could also have verified that Webb had a record of successfully pursuing infringements when given no other choice. Of course, just paying to licence the image in the first place would have saved everybody a lot of trouble and expense.

The official Court Judgement transcript is available as a PDF, from Jonathan Webb's site 
 (Jonathan C K Webb [Claimant] vs Cardiff Steel Erection Limited [Defendant]. Case number IP17S00135, heard in the High Court, Chancery Division, Intellectual Property Enterprise Court (IPEC), before District Judge Hart, 11th April 2018.)

Do It Yourself

If any photographers reading this have a copyright theft problem of their own (and who doesn't?) we would strongly recommend they use the IPEC small claims track. Indeed not just photographers, but any creators including musicians, artists, writers, composers and film makers.

There is a certain amount of procedural rigour to issuing a claim; you cannot just see a stolen image and then issue a summons. It is important to be fastidious about collecting evidence of the infringement before taking any action. Most infringers will try and cover their tracks and hope the problem goes away. Also don't just send an invoice and expect it to be paid. Most people ignore unenforceable bills for things they haven't agreed to buy! You must write at least one warning "Letter of Claim" and in the interests of fairness it is better to send several letters before issuing a claim, which should always be seen as the last resort. All the forms are online and to issue a claim in the IPEC you need to fill in an N1 Claim Form.

It is best to seek advice from those who have experience and knowledge before you make first contact with a copyright infringer. Beware that bad advice about pursuing infringements is as commonplace on the web as bad advice to infringers. If you are the victim of copyright infringement and qualify for membership, it's free to join the EPUK mailing list where you will find support from those who have gone through the process before.

The UK Government publishes a copyright guide for using photographs on the internet. The relevant law is the Copyright Designs and Patents Act 1988.

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Copyright infringements abroad and how to manage themDACS Payback - againAerial Photography by Jonathan WebbPhotographing in public places - where/when/is it allowed?

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