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Stolen photographs: what to do?

18 November 2011 - Simon Crofts

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.

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.

• Remember, 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 editor@epuk.org.

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Recently, there has been 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.

Photo © David Hoffman.

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.

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.

When establishing the basic level of damages don’t feel that you have to accept the infringer’s declared ‘standard payments’; your own reasonable charges ought to be a better guide. Because the publisher has infringed copyright, and didn’t give you the chance to offer terms, they are in a weak position to argue with your pricing. But it is essential to have objective evidence that your own pricing is genuine. This does not have to be generic ‘stock’ pricing. The question is how much would you have charged this particular person for the specific use of that particular image.

Gather all the information you can; what you have charged in the past, what large stock agencies charge in their pricing calculators, look at NUJ rates and recommended rates of other organisations, evidence of what other photographers have charged in similar cases, what makes this particular image valuable and unique, and so on. Not all images are equal so none of these sources is likely to be definitive, but the more evidence that you can draw to show that your claimed price is genuine and reasonable, the better. Since the other party is the infringer, courts are likely to be sympathetic to your valuation provided you can reasonably justify it.

It may be that you would not have wanted to issue a licence at all to that particular infringer (such as an organisation whose aims you strongly disagree with) or for a particular kind of use, and that would be an argument to increase the level of compensation.

Claiming more

Once you have worked out the cost of a licence you should be looking at whether to claim additional damages. For most business infringements at least, for reasons I talk about below, you should normally claim these as a matter of course, unless there are genuine mitigating circumstances. Even if you prefer to settle quickly for a lower sum without going to a solicitor or going to court, making the infringer aware of the potential consequences of taking matters further can encourage them to come to terms.

To a very large extent the court has discretion as to which of these additional sums, if any, it might award, so it is important to be seen to be behaving reasonably, to show that you are a victim rather than an aggressor, in order to keep the sympathy of the court. You are extremely unlikely to be awarded ALL of the following amounts, especially where they overlap or where you have already taken them into account in calculating the licence fee element, and you are probably just going to annoy the court for being unreasonable if you try, but very often a court should be awarding one or more – or several – of them, so identify which are most appropriate to your case and concentrate on those. That does not mean that you shouldn’t claim sums that you are entitled to, but evaluate your claim objectively and behave – and be seen to behave – reasonably. You should also bear in mind the possible amount of additional damages if you are thinking of making an early settlement offer. In any case, take care to draw attention to facts that make the infringement particularly reprehensible:-


  • Flagrancy – This is one of the most important. The courts can award such additional damages as they think “the justice of the case requires” if the breach was “flagrant”1 . Your correspondence should from the start draw attention to any circumstances that make the breach a particularly bad one. There is a good argument that most uses by a business will automatically be ‘flagrant’, unless there are special mitigating circumstances. See the next bullet point for why.
  • Flagrancy and criminality – If the image was used by a business, where the infringer knew or ought to have known that the image was protected by copyright2, then they have committed a criminal offence3 punishable by up to two years in prison and/or a fine4. This is the criminal offence commonly known as “copyright theft”. It is distinct from the criminal offence known as “piracy”, which involves dealing in physical articles such as pirated DVD’s. Copyright theft is also a separate crime from, and should not be confused with, ‘theft’ within the meaning of the Theft Act 1968.

    While photographers are not in the business of locking people up, and trying to prove a criminal offence is inherently unrewarding for a private individual, it should be hard for the infringer to argue that a copyright breach that would be a criminal offence is not flagrant. So, with a business infringer you should normally be claiming additional damages for flagrancy as a matter of course, and it is worth pointing out the criminal offence provisions to the court should the case get that far.



  • Notes

    1 S.97(2) Copyright Designs and Patents Act 1988 (the ‘Copyright Act’) “The court may in an action for infringement of copyright having regard to all the circumstances, and in particular to —
    (a) the flagrancy of the infringement…
    … award such additional damages as the justice of the case may require”

    2 Many infringers will no doubt plead that they did not know the identity of the owner of the copyright or could not find the copyright owner. But that is no defence. There is only a defence if they had reason to believe that there was no copyright over the work eg. that more than 70 years had passed since the death of the author, or that the author had renounced copyright.

    3 S.107(2A) Copyright Act: “A person who infringes copyright in a work by communicating the work to the public
    (a) in the course of a business, or
    (b) otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright, commits an offence if he knows or has reason to believe that, by doing so, he is infringing copyright in that work”

    4 S.107(4A) Copyright Act

  • Benefit to the infringer. Have a look at what the infringer got out of use of the image. If you can show that there was a particular benefit to them from using the image, then the court has power to award additional damages5. If there have been actual substantial profits arising from using the image then see the next point.
  • Accounting for profit. The law entitles the photographer to make an election between making a claim based on the notional licence fee as I have described above, or one based on profits that the infringer made out of use of the image (an “account for profits”). You have the right during court proceedings to require the infringer to make an “Island v Tring disclosure6 which involves a process of providing all the records and accounts associated with the use of your photos to allow you to establish how much the profit was and whether you would like to elect for the account for profits procedure.

    Of course, this is getting into serious legal fees territory, and if you are trying to keep the claim simple and within the small claims track a claim for profits would certainly push the case outside that system. But even the thought of having to go through this procedure and the potential claim it may lead to could make a profitable infringer quail, and in some cases it might greatly increase the amount of damages that you are entitled to. It does no harm to remind the infringer that you may have the right to make this election, especially if the image was used in a highly commercial way that brought quantifiable profits to the publisher. If you’re feeling adventurous it might even be worth thinking of doing this in the case of, say, an especially profitable newspaper or magazine – in theory at least it may be possible to claim a proportion of profits for that issue. This is probably not going to be relevant to most infringements, but for any use that seems particularly profitable for the infringer it may be worth at least thinking about it. Ask your lawyer!

  • Picture credit – Where the infringer hasn’t given a picture credit, you may be entitled to additional damages, for ‘breach of statutory duty’7. Apart from anything else, use of the image without a credit makes it more likely that the image will be orphaned or taken by other infringers, particularly if accompanied by metadata stripping (see below). Failure to provide a credit is also evidence of flagrancy.

    However, in the UK moral rights, such as the right to a picture credit, need to be asserted. To avoid any argument it is best to ensure that when images are distributed a suitable statement is made either alongside the image or in metadata, or both, asserting moral rights. Even if you haven’t asserted you might be able to claim if you can argue that you were given no opportunity to assert your moral rights by the infringer.

    One way to avoid such discussions and to quantify the amount payable is to argue that the fee that you would have charged for use of your image without a credit would be higher than you would charge if there had been a credit, and to adjust your fee accordingly. It may even be the case that you would not allow use of your image at all without a picture credit, in which case your damages could take account of that. As always, you would need to support such an assertion with evidence.



  • Notes

    5 S.97(2) Copyright Act “The court may in an action for infringement of copyright having regard to all the circumstances, and in particular to — …
    (b) any benefit accruing to the defendant by reason of the infringement,
    award such additional damages as the justice of the case may require”

    Also, see S.3(2)(a)(i), The Intellectual Property (Enforcement, etc.) Regulations 2006: “When awarding such damages—(a) all appropriate aspects shall be taken into account, including in particular—(i) the negative economic consequences, including any lost profits, which the claimant has suffered, and any unfair profits made by the defendant”.

    6 Island Records Limited v Tring International PLC(1995) EWHC 8 (Ch)

    7 S.103, Copyright Act

  • Moral prejudice – This is a new one that originated from EU law. When awarding damages, the court can take account of any “moral prejudice” caused to the photographer, even if there is no economic loss associated with it8. This is potentially a very flexible concept. But perhaps one example might be if an infringer has taken an image that you only intended for use for private, or artistic, purposes, and has used it commercially.
  • Consequential losses – If the infringer’s unauthorised use has opened up the image to theft by other users – for example has put the image on the internet without any data identifying you as the author, exposing the image to further theft and the potential ‘orphaning’ of the work – then there is at least a possibility that you may be able to claim such consequential losses from the infringer. This might be especially useful where the third parties are difficult to pursue directly, eg they are abroad, or are fly-by-nights, or are multiple blogs not worth pursuing individually. The infringer may argue that the secondary infringers’ intervening act in stealing the image a second time has ‘broken the chain of causation’, in other words that they are not responsible for the acts of third parties. But depending on the circumstances, there may be arguments against this.

    A more straightforward way to deal with this is to argue that the increased risk of theft by third parties should be taken into account in the fee that you would charge for use of the image in the first place. Alternatively you may argue that if the infringer has opened you up to greater risk of theft from third parties, that this aggravates the seriousness of their breach and should be taken into account, for example in calculating damages for flagrancy or for moral prejudice.

  • Metadata – If you become aware that someone has stripped metadata from your image you are entitled to act as if the stripping of metadata was a breach of copyright and claim damages accordingly.9 If the infringer has also used your image without permission this may not increase your damages further since you can’t claim for the same loss twice (“double dipping”), but it is worth bearing in mind where a user who does have a licence strips metadata, that they may be liable for the consequences of metadata stripping (eg. orphaning of the image). In addition, metadata stripping may help to establish or increase damages for flagrancy (see the first bullet point above).
  • Derogatory treatment – If the work has been subject to ‘derogatory treatment’ then you may be entitled to additional damages for that based on damage to your goodwill and reputation.
  • Devaluing the image – Certain kinds of uses may decrease the value of the image for use by other clients, and your claim for damages may reflect this if you can show it. For example, it may mean that the image can no longer be offered to clients for exclusive use, or it may conflict with use by a potential client and lead to lost sales. If you have evidence that this may be the case, then that may be used to increase the damages award. For example, in a 2010 case Experience Hendrix vs The Times Newspapers the Chancery Division awarded $5.8 million damages when The Times issued a cover CD distributed with their paper that damaged the plaintiff’s market for release of their CD. The same logic can apply to your photograph if the infringer’s use has damaged the market for it. Note however that the economics of this may be taken account of in calculating the notional fee that you would have charged, and you can’t ‘double dip’. This is effectively an alternative way of calculating damages to the licence fee approach.
  • The internet – If the infringer argues that market rates for web use are low you might argue back that web use gives extremely wide access to the image, increasing the risk of image theft and orphaning and so should attract higher fees. It might be the case that you simply wouldn’t allow publication of the image on the web at the low rates currently offered and that your rates for web use, if they had asked permission in the first place, would have been high. Since the infringer didn’t ask permission they have deprived you of the opportunity to refuse.


  • Notes

    8 S.3(2)(a)(ii), The Intellectual Property (Enforcement, etc.) Regulations 2006:
    “When awarding such damages—
    (a) all appropriate aspects shall be taken into account, including in particular—

    (ii)elements other than economic factors, including the moral prejudice caused to the claimant by the infringement”

    9 S.296ZG(4), Copyright Act

  • Costs – Of course, if you are forced to go to court you can add the costs of doing so (lawyer’s fees, court fees etc.) to your claim, and your first letter should make that clear as a powerful incentive to settle quickly. It is a double edged sword – if you do go to court and either lose the case, or at least lose the sympathy of the court, you may end up paying the other side’s costs. So it is in everyone’s interests to avoid that and settle before things go too far. Often the costs will quickly become much greater than the claim itself. Make sure that the infringer fully understands the potential downside for them of dragging out the dispute. You should keep records of all expenses that you incur chasing the debt.
  • Delivering up – You may have rights to confiscate infringing copies, though this is unlikely to apply where your image is part of a wider publication.
  • Contractual damages – If you have an arrangement with the infringer, for example, they are a client who has used your images in an unauthorised way, you may also be able to claim damages on a contractual basis. Your standard contractual terms, if well written, might for example impose liability for consequential losses such as third party usage resulting from orphaning of an image. The breach of contract is also likely to be simultaneously a breach of copyright, so many of the heads of damages discussed above will also be relevant.

    Even if you don’t intend to demand the full sums you are entitled to, or you want to maintain a good relationship with the infringer (eg if they are also a client), or you are happy to agree a quick and low settlement to save time and trouble, it doesn’t hurt to protect your position and look professional by making the other person aware that you might be entitled to claim substantially more than in a settlement offer. Emphasise that you are being helpful and reasonable by allowing settlement for a lesser sum. The initial correspondence is extremely important in establishing the potential downside to the infringer.


Corresponding with an infringer

The problem for photographers often begins with that first letter of demand, most likely written without the help of a lawyer. It sets the tone for what is to follow. Since the photographer may often suspect that the infringement may not be worth pursuing beyond this, the temptation is to ask for very little in the hope that the infringer will cough up quickly and they can move on. The infringer, thinking that the claim will be a small one not worth the photographer pursuing, typically comes back with an even more derisory offer, and the photographer either settles for that or makes a half-hearted attempt to push a compromise. The chances are that the infringer will end up paying less than if they’d asked for a licence in the first place.

Even if the photographer does have the stamina to go to a lawyer, the lawyer may have his hands tied by the valuation put on the infringement in that first letter of demand. Unless you have marked that letter “without prejudice” the infringer may use your offer as evidence against you as to the amount you believe your damages to be. It may severely limit the possibility of claiming the kind of additional damages I discussed in the first part of this article.

By this stage the exchange of correspondence may have shown the infringer to be more culpable than first thought, or more difficult to deal with. The photographer might even regret having been too generous or conciliatory in the first offer. Or, on the contrary, it may have shown that the infringer had a reasonable excuse.

Photographers are often in a stronger position than they think. I have argued in the first part of this article that photographers should often be claiming additional damages unless there are particular reasons not to. Even if there is no real desire to go to court it is important to make infringers aware that you have the right to do so.

I would suggest not firing all your cannons in the first letter. This letter should point out the infringement and try to elicit further information from the infringer. It should be firm but not confrontational. Their response to the first letter might range from contrition accompanied by full cooperation and offer of payment, or a valid explanation of how they obtained and used the image (eg. your agent licensed it to them), to blank denial and abuse. The amount you want to claim, and how aggressive – or conciliatory – your follow up is, will depend on their response.

You should keep your end of the correspondence professional and polite at all times while emphasising the strengths of your case. And to prevent anything you say being used against you, always mark all correspondence “Without Prejudice Save as to Costs” especially if it contains a settlement offer.

Once you have more information, or the infringer has failed to reply, then you have the choice of building your claim with the next letter, possibly making a “without prejudice” offer of settlement, or going to see a lawyer. You must make the infringer aware not only that they may be paying considerably more if you have to take it further, but also that you are serious and that you know what you are doing.

Samples

The following examples are not intended to be used literally, they are more of a checklist of the kinds of things that you might include in that first correspondence to establish your position. They will need modifying to your own situation. With the possible exception of the first letter however, I would suggest always including at the top of the letter the magic words “Without prejudice save as to costs”, particularly if you are making a settlement offer. If the first letter includes any kind of suggested pricing or settlement offer, however, the words should go at the top of that letter too.

First Letter


Dear X

It has come to my attention that you have used my image [describe image and the usage]. I do not have any record of having issued you with a licence to use this image. I would be grateful if you would provide me with any evidence that you have been issued with a licence by myself [or my agent] for such use.

Subject to that, as it appears that you have breached my copyright I require you to provide me with information about where you sourced the image, the length of time that you have used the image, and any other usages that you may have made of that, or any other image that you may have reason to believe may be mine.

[Unless you have a licence from me/my agent for use of the image] I require you to remove the image immediately, and will be requiring payment for use of the image to date. [If you would like to make use of the image for the future, any such future use would only be permitted subject to negotiation with me of a separate additional licence and payment of a licence fee at my rates.]

Yours faithfully

Second letter – a grumpy one

Letter to be used for a flagrant breach, and includes a settlement offer, which you may or may not want to make. The letter is just a starting point and needs modifying for each particular case. If there are mitigating circumstances, it would be more appropriate to send a ‘softer’ letter.


Dear X

Without Prejudice Save as to Costs

Further to your reply of [ ], I was extremely disappointed to see my image used in this way. This was a particularly flagrant breach of my copyright because [ ]. [list any factors that make the breach more flagrant eg. if they were warned not to use the image in this way, or if it would have been easy for them to find out who the copyright owner was, or if they’re using a private photo without model release in a commercial context].

[You ought to have known that the image would be protected by copyright, and use of my image in this way by you in the course of your business would be a criminal offence under S.107(2A) of the Copyright Act 1988, punishable by up to two years in prison and/or a fine. [Include this wording if the infringer used the image in the course of a business and ought to have known the image was protected by copyright.]]

[In addition, there was no attribution (picture credit) of my image to me. Unauthorised use of the image in this way devalues the value of the image for myself and my clients. Use on the internet, especially where unattributed, is especially damaging as it presents further opportunities to third parties to infringe my images, and increases the risk that the image may become ‘orphaned’.]

If I have to take this matter further, I may be entitled to claim damages not only for the direct losses caused by your infringement, such as my loss of license fee, but also for one or more of the following:


  • I am entitled by law to additional damages where the breach is flagrant or where you have gained a benefit from using the image.
  • I may elect to require an account of profits from your use of the image, and may require you to carry out disclosure of the full amount of profits derived from use of my image. This may include my claiming a share in the total profits from the sale of any edition in which my image appeared.
  • I am entitled to further damages for failure to credit my image to me: for breach of statutory duty under S.103 of the Copyright, Designs and Patents Act.

    [Describe any derogatory treatment of the work, which may entitle you to further damages.]

  • I may be entitled to additional damages for ‘moral prejudice’ under S.3(2)(a)(ii), The Intellectual Property (Enforcement, etc) Regulations 2006.
  • I may be entitled to claim from you any additional losses caused to me which results from your breach, for example if my image becomes ‘orphaned’ due to your actions.
  • If I have to take this claim further, the costs of lawyers’ fees, court fees, and other expenses will also be added to the cost of the claim.

The foregoing list is not exhaustive, and I reserve my right to claim for additional heads of damage. I would strongly urge you to consult a solicitor in relation to this claim.

In the interests of resolving this matter quickly for both of us I am, at this stage, willing to make a without prejudice offer to waive my rights to damages from you with respect to your breach for a payment of £[ ], provided that you accept this offer in writing within the next [7] days and provided that such sum is received on my account within the next [14] days.

This offer applies with respect only to your breach of copyright and usage of my image as described in my letter to you of [refer to first letter], and does not in any way imply waiver or consent regarding any additional usage or use of any other image or any breach by any other person. This offer is made on condition that you have disclosed all material facts to me in relation to your breach of my copyright.

This offer applies to settlement of your breach of copyright for this image until the date of expiry of the offer, and assumes that you remove the offending copy of the image forthwith. No consent to future or continuing use of the image is implied in the foregoing offer. Should you wish to continue use of the image, then that would be subject to separate negotiation and agreement.

Should I not receive notification of acceptance of this offer within the period described above I shall pass the matter to be dealt with by my solicitors and/or debt collection agents, and additional costs will be incurred which I shall recover from you.

Yours sincerely/faithfully



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Comments

Fantastic article. I have recently had to start taking theft of my images very seriously as I made the shocking discovery that the vast majority of users of my images are unauthorised. Using new internet search tools I was able to show all websites displaying an image and was horrified to find 157 websites using one image alone, an image I had only ever sold one licence from.

The list of infringers was as widespread as the economy, businesses of all sizes from one man businesses to some of the worlds largest companies, public sector and private sector alike. My image was being used to advertise all manner of products from property sales, security services,motor vehicles , financial advice, wind turbines, hotels, theatres, “aps”, the list is endless. There was even a public sector anti crime initiative which had stolen my image as illustration!

That was just one image so when you consider the value of all of my hundreds of thousands of images the figures become staggering.

People need to realise professional photographs are not free and the only way they seem to take notice is when they come up against legal action with a large cost to themselves. If every photographer were to pursue a number of infringements every year the public would soon get the message that copyright theft is not the cheaper option.

Regards,

Jonathan

Comment 1: Jonathan Webb, 19 November 2011, 11:56 AM

A truly excellent and valuable article. Evangelise this; all photographers should be aware of this advice and follow it when pursuing infringers. It’s in all our interests to deter infringers and make claims worthwhile.

Comment 2: Paul Ellis, 19 November 2011, 01:15 PM

I have taken people to court several times over copyright infringement, and won . This is such a useful letter and advice . I thank you for it.
I must ask that are you allowing EPUK members to use it ( copy paste parts of it for free?)
It is in theory your copyright !

Peter

Travelshots.com

Comment 3: `Peter `Phipp, 19 November 2011, 04:42 PM

Very succinct article! Wish I had seen this before just being happy to have my appropriated images removed from “Filmed By You – Edited By Us Wedding Video”‘s Business Facebook Page. See here: http://weddingphotos-video.co.uk/blog/?p=3542
May I link back to you from that post please? xx Elaine

Comment 4: Elaine Reel Life Photos, 19 November 2011, 05:36 PM

To answer the questions about what you may do with the article, yes, please do link to it. We have now added the following to the first page:

“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 admin@epuk.org.”

Comment 5: Tony Sleep, 20 November 2011, 01:52 AM

Thanks for this great article. I am battling infringers in Australia, the US and the UK and am now encouraged to pursue UK infringements more vigorously than in the past. My Sydney IP lawyer suggested a very similar text for the first letter to infringer but when I asked what the second response should be, he advised “Don’t send them a second response, refer them to me!”

Comment 6: Sheila Smart, 21 November 2011, 12:55 AM

Hi Sheila, that’s a good point, the second letter is really aimed at a DIY situation, where the photographer is taking matters forward him/herself, at least in the early stages, or wanting to make a settlement offer to see if a quick and easy settlement is possible without incurring legal fees. If a lawyer is involved (and of course, it’s better if there is, provided you have the budget), then you should put yourself into their hands and let them write the letters.

Simon

Comment 7: Simon Crofts, 21 November 2011, 03:24 PM

An excellent article and good advice.
Let me add that in a recent case in Scotland I argued that the case should be heard in my home court rather than where the defender is based and despite the original Sheriff arguing that the local court did not have jurisdiction the position was confirmed by the Sheriff Principal at the appeal process.
The case can be found at:
http://www.scotcourts.gov.uk/opinions/sa1251_08.html
The point of this is that they now have to come to a court near you and that can cost serious money. Currently I’m suing people from London in Ayr Sheriff Court and they’re complaining that every appearance costs them £400 which they can never hope to recover.
That’s a shame.
Thanks again for the article, hope this added info helps.
Alan Mackie

Comment 8: Alan Mackie, 4 December 2011, 07:06 PM

I am an amateur photographer who has had a few pix nicked (thanks ‘Google Image search’ and ‘TinEye’) and I was interested to read the article.

To the dozen or so of those who have stolen my pix in the UK (I haven’t approached the more numerous US and elsewhere thieves of my
images) I wrote demanding payment of £60 for their use of my image.

Perhaps half paid up, with varying degrees of resistance.

And despite my threats of legal action, it is the more recalcitrant ones – who either ignore my communications or even threaten me (for
‘harassing’ them or trying to ‘extort’ them) who get away with it because my threat of legal action is, as yet, not followed through.

That is because I fear there may be difficulty in bringing legal action for small sums.

I have researched using the Small Claims track (as it is called now) to get payment from someone through court. There is much advice that says courts will very likely not allow claims for IP infringement to go down this route but will insist it will need a claim to the High Court (or other court).

Now I am sure I have copper-bottomed cases but I don’t have the cash to take people to the High Court and I am also wary because of reports about the difficulties you can get in the High Court, like a photographer who ‘won’ but actually lost money.

I’d be interested if anyone who has experience successfully pursuing the Small Claims track is able to advise how they did that but
stopped it being refused to be heard there and sent to the High Court – or was this not an issue?

And if anyone also has any experience in successfully using solicitors on a ‘no-win, no fee’ basis to pursue actions on IP infringements in the High Court, it would be useful to hear how they did it and maybe see details of the lawyers.

With both of these it will be useful to know whether people think they can work for both small claims and even minor claims (less than £50) as well as bigger sums.

Regards,

Cliff

Comment 9: Cliff, 8 December 2011, 08:51 AM

@Alan,
I’m interested in a Scottish angle as one of the most flagrant abusers of my image is in Glasgow (and I’m in London) and my reading of the situation is that it is a lot easier to take action for small claims in the Scottish courts.

Have you any info on whether I can take action against them in the Scottish legal system (even with the greater possible travel costs for me) rather than having to take action through the English courts i.e, not that you would want to, but do you think you could take action against the London infringers of your images in England, if you so wished?

Comment 10: Cliff, 8 December 2011, 09:09 AM

Cliff and any others, please use the link attached to my name below to contact me directly.

Comment 11: Alan Mackie, 10 December 2011, 07:40 PM

Very well researched article. For jurisdiction of Scottish courts, see http://www.jonathanmitchell.info/old/jurisdiction.html. This is an informative article by a noted Scottish advocate (equivalent to a barrister.) Also, most Sheriff clerks will be helpful to claimants, and will assist with completion of small debt claims court summonses. But I can’t imagine that any Scottish court would have any jurisdiction unless you can show a relevant link with Scotland

Comment 12: Venessa Richard, 20 December 2011, 08:16 PM

What an absolutely first class guide. The essence is to be reasonable first and be sure of your facts before going hell for leather to the courts.

Comment 13: Des E Gershon, 28 February 2012, 11:01 AM

I’m pleased to hear that ‘The Patents Court will be setting up a small claim track in the autumn which should help with low value cases where the copyright issues are
central.’ (http://www.ipo.gov.uk/hargreaves-enforce-c4e-pcc-response.pdf) I am likely to use that process to seek payment from some infringers that have been hard to take to court.

Also some news of another case where a photographer won a case where ‘Even
where the infringer had honestly held the belief that they had the right
to publish a work, this would not make the publication any less unlawful.’

http://www.bailii.org/ew/cases/EWPCC/2012/2.html
There is a digest report at
www.swanturton.com/ebulletins/archive/InnocenceIsNoDefence.aspx

Comment 14: Cliff, 1 April 2012, 02:32 PM

I’d just like to thank you for this very informative article.
It is a generous offering to us within the photography community, and obviously I’m not the only person to be really pleased to find information so well written, that goes to such lengths to de-mystify some of the laws applicable to copyright infringement.

Although I have had several images used without my consent in the past, I consider myself lucky in that all infringers have either paid for the unauthorised use, or removed the images from webpages when requested.

I must admit that even after reading this great article, the thought of having to take a case to court does fill me with dread, but if a worst case scenario were to raise it’s ugly head I feel a little more confident in knowing how to approach the issue from the outset.
Thank you again.

Comment 15: Randell John, 11 July 2012, 01:10 AM

I am at this time pursuing a case of this type. the breach is flagrant as the infringer had two ‘bite of the cherry’ to ask to use my images and didn’t both by phone and email, also the magazine in which my photos have appeared credited the pictures to someone else. its the first (that I know of) time this has happened to me. So can anyone advise me what I should be looking for in terms of a settlement out of court. three of my photos were used without my consent or notification to illustrate a magazine article. I’d be quite happy to go to court but would rather avoid it if possible, does anyone have any advice, please.
many thanks in advance.

Comment 16: Graham Dalley, 17 September 2012, 05:36 PM

You can get a general idea of the fees that magazines should pay by Googling “NUJ fees”.

It’s hard to get any more for a miscredit unless you have terms of business that specify this.

You might try asking on a forum such as http://copyrightaction.com for more detailed advice.

David Hoffman

Comment 17: David Hoffman, 19 September 2012, 07:18 AM

Does anyone know the maximum fine which can be imposed on a proven copyright theft?

Comment 18: Graham Dalley, 25 September 2012, 06:24 PM

how about landlords who have
tenants who stay and do not pay the rent, and the property is left in a filthy state, is that the same

did you get to keep the 24000 and the cash you claimed from the poor people who were sued?

Comment 19: janice allan, 30 July 2013, 05:59 AM

terrible these people being sued, lots of people pinch photos from the internet not to make money, in any case your photos should be marked if you are so concerned sounds like a dangerous money making scam to me, i am sure you can do better than doing that.

Comment 20: janice allan, 30 July 2013, 07:25 AM

If a shortbread company used a photo of mine eg Edinbugh castle, for their packaging, they will sell lots and lots of shortbread, the sales will be ongoing, I would sue. But to take people to court, have them pay costly solicitors’ fees, travel all the way up from England to Scotland, and perhaps not fit people into the bargain, have them stand up in court, all for the sake of a photograph which was used in a weekly/monthly magazine for example, is to my mind ?

Comment 21: janice allan, 24 August 2013, 02:25 AM

Janice Allan, you are trolling.

It’s like shoplifting – not a problem if a kid occasionally takes a Mars bar, but C21st photography is like trying to run a shop in a neighbourhood where everybody is a looter.

Do not tell me infringement is not theft, it is theft of value and income from individual creators. And everybody is at it from hobby bloggers up to the largest media organisations. The law does no more than return the stolen value to the photographer.

Why not just ask permission instead of stealing?

So let’s hear your repulsive defence of shoplifting, or stealing cars, or mugging.

Comment 22: Tony Sleep, 24 August 2013, 09:47 AM

Hardly COS.

Comment 23: janice allan, 25 August 2013, 10:33 AM

Hi. I had a photo used by 2 TV stations for broadcast and web and 2 nationals for web and print without permission. I got £400 each from the TVs but nothing yet from the nationals. I’ve invoiced one for £400 but they’ve come back offering £200. Any thoughts if I should accept this or keep pushing for the full £400 (based on £100 normal use for one media, times two for infringement in each)? Much appreciated.

Comment 24: Edward Matthews, 23 September 2013, 05:40 PM

Just wondered if e-mail is acceptable as a first communication or must it be sent snail mail? Cheers.

Comment 25: Douglas Carr, 3 March 2014, 02:30 PM

@Douglas Carr. Acceptable, yes (but keep a copy), but also receipt is deniable. The RCPT TO email mechanism is worthlessly anonymous.

I’ve had an infringer deny having received 3 posted letters, even though they had actually phoned me about one of them. They were just wriggling, and making life as difficult as possible. I would now send all communications by recorded delivery.

Comment 26: Tony Sleep, 5 March 2014, 02:28 PM

Hi, I have read through the pages but am still a bit confused with this legal jargon. Basically I have discovered that a picture I had taken and put on flickr has been used by a media company to go along with an online poll. The picture is only small and I did mark it with ‘©2013 Dave Cullen’ which is shown on the stolen picture on their website. Can I demand payment and if so how much? I’ve tried selling pictures and not had much joy and as an amateur don’t know where I stand here. I was advised by someone ages ago to put the following on my flickr profile “****WARNING****
To anyone and everyone You do NOT have my permission to use any of my profile or pictures in any form or forum both current and future. If you have or do, it will be considered a serious violation of my privacy / copyright and will be subject to legal ramifications. This includes all forms of blog sites. It is recommended that other members post a similar notice to this
If you do use my work you will be agreeing to pay my fees as follows:
Use of image – £100.00 per image plus £50.00 per day image is displayed in unauthorised state.
Commercial use – £500.00 per image plus £100.00 per day image is used in unauthorised state.” Obviously these weren’t on my picture but were on my profile and all pictures are marked as copyright all rights reserved. I realise that these fees are nuts but presume I was advised to put these on to try and put people off nicking photos. So What can I claim, do I just send the letter, do I have a case? Any help would be appreciated. thanks

Comment 27: Dave, 26 June 2014, 07:39 PM

Why not tony sleep ask permission before hacking into a person’s computer and be courageous enough to give your real name? I thought good for him he has done something with his life, when I discovered your site. I thought can this be the same person. I don’t think pinching fotos from the net is crime of the day unless as I said, the company is making megabucks as in the example of shortbread biscuits. Why not just ask before hacking?
Trust you. S G is a good friend A M wasn’t… he will make your life so much better,
I going to be sick.
Cheers

Comment 28: janice allan, 1 August 2014, 01:44 AM

Even though the IPEC small claims court has not published any statistics yet, by all accounts photographers have a 100% record of successful judgements against infringers. This is not really surprising considering the how straightforward these cases are. An interesting example of a case is here:

http://www.webbaviation.co.uk/court-report.html

Comment 29: Alan Gallery, 1 June 2015, 10:19 AM

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