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 disclosure“⁶ 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

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, 03:32 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, 02:10 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, 06:36 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, 08:18 am

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

Comment 18: Graham Dalley, 25 September 2012, 07:24 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, 06:59 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, 08:25 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, 03:25 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, 10:47 am

Hardly COS.

Comment 23: janice allan, 25 August 2013, 11:33 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, 06:40 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, 08:39 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, 02:44 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, 11:19 am

I use photographs to illustrate academic articles in journals, real and virtual.

Matters of copyright are as a rule handled by (or on behalf of) the editors.

In the old days the source/origin/originator would always be obvious (details accompanying the photograph), but I have recently found some on line which are anonymous in every way: it is not even possible to identify who posted them. I don’t think there’s any criminal intent: ordinary people don’t think twice about passing on interesting information – even in pictorial form – through the ether.

I have sought other examples of the images on line using the appropriate search engines, but seldom find any.

(a) What course of action would you recommend to identify where copyright lies?

(b) What is the situation as regard anonymous “family snaps”.

© What is the situation as regards studio portraits (including outdoor portraits) produced to order where neither the subject nor the photographer can be identified, or owing to the age of the photograph may no longer be identifiable?

Comment 30: Philip Heath, 30 October 2015, 10:02 am

Excellent article! Informative, clear and encouraging.

Thanks Simon Crofts, just what I’ve been looking for.

Mine is to me a clear case except for one regard: that the photo was copied.

An image was supplied speculatively to a potential client that I had met. It was a product shot and was taken from a unique angle. He liked the work and asked me for a quote, which I supplied, but I did not hear back from him. No problem – win some lose some.

However I subsequently discovered that he had given my image (which was unique and was watermarked) to another photographer who then copied it exactly. And when I say exactly I mean e x a c t l y. I superimposed them in Photoshop and, without skewing them in any way, they matched perfectly – even down to the depth of field used.

I had sent them to the client (via Messenger) with the caveat that they were just samples not finished products (he was redesigning the labels anyway). No permissions were given or implied.

My question is: should I proceed, broadly speaking, as described in the article above or is there another course of action.

Aggravating circumstances might be:

Loss of income.

Allowing others to profit from my work (i.e. the other photographer (whose name he refuses to supply)).

No credit.

Flagrant breach because he has refuses to take the images down despite knowing that they are in breach of copyright.

etc.

I would be interested to hear anyone’s thoughts on this or if anyone has ever been in a similar situation.

Comment 31: Guy, 15 February 2016, 12:15 am

Thanks for the great article, Simon! The more photographers know about how to protect their rights, hopefully, the more infringers would think twice before right-clicking a photo.

I wanted to add a more recent tool to your list – Pixsy (https://www.pixsy.com/) that doesn’t only track the use of images online, but also helps photographers get compensation for their stolen work. Full disclosure: I work there and I love it.

Basically, it is the tool that is “able to claim reasonable levels of damages for the image thefts that it reveals”, as you put it.

I love the letter templates you’ve provided. However, we noticed that direct communication with an infringer can often harm further resolution of a case. Also many of our photographers found that having an additional authority backing them up has a bigger effect on an infringer. Many of the photo thieves “break the silence” only when they see that the photographer doesn’t stand alone.

If you’d like to give Pixsy a try, please let me know — I’d be happy to share an invite code with you and walk you through the process!

Best,
Nadia

Comment 32: Nadia Reckmann, 13 April 2016, 04:38 pm

Hello Simon,
I’ve found this article very informative and I hope to use the information provided to good effect in tackling a stolen photograph issue.
I took some shots of a friend’s car back in 2010 and, as a Ford owners’ club member and web forum moderator, he duly posted some of them on his forum. Unfortunately, I hadn’t watermarked them and later that year an engineering company (clearly with owners’ club members on their staff) started using one of my photos in their ad. They’ve continued to use it over the years and it has appeared in three publications that I know of.
I’m not a professional but if my photo’s good enough for their ad then I think they should cough up a fee. I’ve sought legal advice and want to send a letter before action to the company that continues to use my image. The problem is I have no idea what rates they should have paid had they requested a licence to use the image. I don’t want to pluck a figure out of the air so where could I obtain a realistic figure. Your advice would be greatly appreciated.

Comment 33: Michael Currie, 25 August 2016, 12:09 am

Michael – there are no set rates. In law the amount that you would have charged if you’d been asked is the starting point. If you don’t normally make sales like this then it becomes a bit less certain but if they had asked then you might have looked at a site such as Getty Images and used their online pricing calculator to get a figure. If you have a contact who uses a system like PhotoQuote you might have asked them. Or you might have just thought of what seemed like a reasonable figure to you. Any of those would be a basis for a claim.

If it were editorial rather than commercial then Googling “NUJ fees” gets you the Freelance Fees Guide with useful minimum rates.

Don’t name a figure yet or send an invoice or jump in with a letter before action. Go through the steps in Simon Croft’s article but as it’s now a few years old you should also look at:
http://www.epuk.org/the-curve/the-infringement-pathway-a-step-by-step-guide-for-issuing-a-copyright-claim

Comment 34: David Hoffman, 25 August 2016, 09:20 am

HI there, I run an online art business and I recently found out that a competitor has stolen not only some of my images but whole pages of my text verbatim. We are both based in the UK but wondered if the US DMCA applies in the UK? They’ve taken images that show our work in it but that also promotes it (ie I had our graphic designer design it) so I didn’t watermark it. Also there are images i had taken myself with my camera but as im not a proper photographer I obviously haven’t liscenced them or charge a fee for people to use them. Basically this guy has just gone onto our website and copied chunks of text and taken our images and put them on his. I don’t have 500 pounds to spare to get a lawyer to write a cease and desist letter on my behalf. Can you please offer any advice, it would be greatly appreciated. I have tried phoning them but nobody ever picks up.

Comment 35: Anouska, 16 September 2016, 10:03 am

Easy question first – the DMCA has no relevance in the UK. That’s a good thing, the purpose of the DMCA is to protect those who make a business of facilitating infringement.

You don’t give enough info to judge how best to stop this infringement. Lawyers are expensive. £500 is barely a start and would probably be money wasted. Trading Standards may be helpful. That depends a lot on the area where you and the infringer trade. Worth a try perhaps, it’s free and may get you useful info if nothing more. It’s not going to get you any damages though.

You may be able to get the host for the infringing site to take down the work that you own. There’s a better chance of that if it’s a UK host.

Does the infringer have sufficient assets for you to recover your losses? If so then one of the paralegal firms such as ImageRights, Pixsy or IPP may be willing to have a go.

Comment 36: David Hoffman, 17 September 2016, 01:18 pm

What a great article! I only came across this today 1 January 2017.

I have suffered greatly from image theft. Having tried to deal with these incidents on my own, I have had mixed results. I fully sympathise with anyone who had ran into the ‘nasty’ infringers, who will do everything possible to avoid accepting blame. Your examples of the myths and excuses are true. I have personally received many of them.
I would like to add the following myth.“I am in the photo, so it belongs to me!” This is a common reason offered by sports clubs/sports people. You should however have received permission prior to taking the photo, from the relevant sporting body.This will save you a great deal of problems if an issue arises. Please also be aware of child protection law, which may require you to be registered/disclosed, before taking images of children.
I have received many derogatory comments both personal, and also regarding my photography. These could seriously harm your reputation. ‘Word of mouth’ can be enough to ruin your services. The infringers do not have to post, ‘false’ poor reviews of your work to cause harm.
With so many people sharing images via social media, many believe that it is acceptable to copy any image.
Another situation I have also come across has been when a ‘charity’ makes use of an image. Many charities have websites for all manner of uses. Once again, I would draw your attention to sporting charities, who believe that because they are a charity they are entitled to use any image for FREE.
In closing this post, I would encourage every photographer to take action against copyright theft.
If anyone has advice they can offer on the content of my post, I would be extremely grateful

Comment 37: John Williamson, 2 January 2017, 12:40 am

Well John, let me put this forward to you. I’m have a website, I don’t earn any money from it, and just received a letter from a German Lawyer, that I’m being suid by an American Photographer, for £4000. I won’t name and shame…..yet……

The website was built 11 years ago, and all pictures were bought from stock image websites. As it’s such a long time ago I don’t have the proof of purchase anymore, but the picture is still available on stock websites. The picture is on a page where literally nobody visits. All the Photographer had to do was be reasonable and ask me to take down the picture, and I would have happily obliged.

I understand that Photographers want to protect their work, but please tell me, this is absurd ?? I found the same picture on her website, which she sells for £20 ! Hardly a picture of much value. It’s taking me lots of time and stress drafting up letters, and contacting Advisers regarding this. I’m disgusted by this level of greed, and would be interested to hear if other Photographers and John would find this acceptable ?

Comment 38: Cate, 15 January 2017, 05:53 pm

Hi Cate,

The situation you outline is absurd and I don’t find it acceptable. That is my view point from the details you give. However,I am not legally trained so this is purely an opinion.
I have no idea how many situations of your type arise, but I believe from the details given that if the image ‘was’ stolen by you- I have no reason to believe it was- it is likely that the law would only grant the cost of the photo £20. The figure claimed is outrageous. If the photo is on a stock website, then they should have records of the sale to you.

Cate,I understand your frustration, and I am happy to respond but please don’t take your frustration out on me by asking if I find this acceptable. I have not accused you of anything, and the comments made in my post above relate to my experiences in dealing with photography theft and are not meant to relate to people like yourself who have also suffered. We are really on the same side. We both want to be treated fairly by the law covering these situations.
Just to add another situation. I came across this week a photographers blog, where he was pleading with those who wanted to use his photographs to treat him fairly. He sates on his website that the photographs can be used provided a donation towards his expenses like,equipment, website cost, travel etc. Now, that I feel is a pretty good deal. However, a large number of people say the will donate but never do!!

Life would be very easy if we all complied with the law. At least it is my understanding that is why we have laws.

Anyway, to conclude. Cate, you and I both appear to be ill treated, although in different ways. My encouragement to act in my previous post still stands.I would obviously encourage you to take a stance against the person who wants to sue you. Laws are there for a reason. Unfortunately, there are people in this world who are not prepared to follow the rules!
I hope that your situation is resolved in the very near future.

Comment 39: John Williamson, 16 January 2017, 12:48 am

Hi John,

Apologies if it came across as my frustrations were directed towards you, that was not my intention ! I think I’m just in general baffled and disappointed by this particular Photographer’s attitude. I actually thought it was a scam, and emailed the Photographer to confirm this is actually coming from her. I apologized for using a picture against her wishes, and took the picture from the site immediately. Her only reaction was: refer to my Lawyers.

It’s such a grey area, as on social media people share photos, without considering who made it or where it came from. Many people are not aware they are doing anything illegal, and not maliciously thinking to themselves, let me steal that image. So really, Web Developers (amateurs especially!), and social media users need educating to be respectful regarding this, also to protect themselves, as I have a feeling these type of law suits coming from the States, are going to hit the UK by storm.

I’m sending my response to the Lawyer today. I’m not too worried this case will go her way, as I know I have done nothing wrong, but I don’t know enough about these laws to know for sure what will happen with this, so I’m a bit on tender hooks still.

Thank you very much for your response, and it’s good to know you don’t agree with this law suit either.

Comment 40: Cate, 16 January 2017, 11:17 am

Hi Cate,

Thank you! Yes it is indeed frustrating to be in this position. I have been threatened with Lawyers letters trying to blame me for the theft. Yes, that’s the case. I was told it was my responsibility to password protect my images.If they are stolen it is my fault! Can you believe this type of reply? I guess I will need to put a notice on my door to make the burglar aware that they are not to steal from my house, or maybe I should walk about with a t-shirt that says-you are not allowed to mug me!

It is also interesting that you consider that there may be a run on law suits of this type from the US. One infringer claimed that I intentionally post photographs and wait for them to be copied. Then I can extort money from innocent people!
A little nostalgia. My mother used to go out shopping and leave her door open without any concern. Changed days?
I hope you get matters resolved to you satisfaction asap.

John

Comment 41: John Williamson, 16 January 2017, 01:23 pm

Hi John

Useful article thankyou!

I find myself in a similar position but with a youtube video video that went viral. Whilst I granted non exclusive licenses to many tabloids, three major tabloids decided to reupload my video to their website.

I have emailed them simply asking to be put in contact with somebody concerning copyright infringement and got no response. Do you suggest I write a letter or email them again? I assume what you recommend here applies to videos as well.

Also they are showing adverts before they show that video, do you think I have a right to ask how much money they have earned so I have an idea about how much damages I can claim?

Cheers

Alex

Comment 42: Alex, 13 February 2017, 07:17 pm

Hi Alex,

I don’t have experience of video copyright infringement, but came across the following sites which I found very interesting. Maybe, you can find something useful?

https://www.videomaker.com/article/c15/15953-9-copyright-laws-every-video-producer-should-know

http://www.lawtechnologytoday.org/2016/03/tips-avoid-copyright-infringment/

https://en.wikipedia.org/wiki/Copyright_infringement

https://turbofuture.com/internet/Embed-YouTube-Videos—-Copyright-Infringement

https://www.gov.uk/topic/intellectual-property

I do hope you can get matters resolved.

Best wishes

John

Comment 43: John Williamson, 13 February 2017, 08:21 pm

Hi, I was wondering if you could give me some advice?
I own and run a 4D baby scanning business I have an active Facebook page where I post videos captured in the clinic. All of the videos are anonymised and in our website terms and conditions we state that all of our videos and images are owned by us and are able to be used by us for promotion and advertising.
A news agency has extracted one of our videos and used it to sell on to several tabloid newspapers and other media outlets and it was used on an Australian breakfast news segment.
The agency did not ask for permission for using this footage and we were already in talks with a separate newspaper who were going to write a editorial spread using our video as a centrepiece for the article.
Since the agency ran the story and sold it on to 5 outlets of ( of which we are aware, there could be more?)
The newspaper we were in talks with pulled the segment as they didn’t want to reprint a story that had already been printed.
We have been in touch with the editor of the agency who is claiming they made minimal amounts so really there is not much of a claim, which is very frustrating.
Another issue we have is that they have the journalists name added to the video as if she has the rights to it.
Please could you give me any advice on how to proceed?
Any advice would be much appreciated this is only a start up business which has only been open for 5 months and the promotion we would have got from the article would have really helped our business.
Many Thanks
Gayle

Comment 44: G MacTaggart, 26 February 2017, 09:34 pm

Hi Gayle – is your business in the UK? Is the agency in the UK? If not, where?

Comment 45: David Hoffman, 26 February 2017, 10:05 pm

Hi David,
Yes based in Glasgow in the uk
Thanks Gayle

Comment 46: GMacTaggart, 26 February 2017, 11:14 pm

Hi Gayle,

It comes as no surprise to me that they claim to have made very little. However, that is not the point.It is still theft, no matter what the value of the item. More importantly, have they now admitted fault by means of their response. Was it in writing or only by telephone. Is there a paper/electronic record?
The problem we all have at present is the cost of taking legal action. Can we afford the cost upfront, even although we have a good case and are confident of winning. The company will no doubt take the risk that you will do nothing following their response.So far, it has cost them only the time to give a short response.
As I am not legally qualified, I can’t give legal advice. Only my experience of dealings of this nature.
What we really need here is for the original author to give some update, as we are now 5+ years since the article was first published.

John

Comment 47: John Williamson, 27 February 2017, 05:46 pm

The law is administered differently in Scotland to the way it is in England and Wales but from what you write it appears that both the agency & the Australian broadcaster have breached your copyright. It’s hard to take action in Australia and the real offender is the agency so you might want to take action against it to prevent a repeat and get damages.

At the least you have lost the fee from the newspaper so that’s your basic loss. What the agency might have made is irrelevant. The question is what would you have charged if the 5 broadcasters had come to you? That’s another way to measure your loss. On top of that you may also look for additional damages by losing the newspaper publicity (that could be quite a lot) and because of the flagrant way that the agency has helped itself to your IP. If there is any loss of client confidentiality or other adverse consequences then those, too, form part of the claim. making a flase copyright claim is an additional offence under the CDPA 1988 (that’s the law on this).

Your difficulty will be in getting legal help. Do you have a professional organisation? Legal cover as part of your insurance?

Otherwise there are some paralegal services that might help. These are ones that work for photographers, I don’t know if they will be able to help but you might ask:

https://www.imagerights.com/
http://www.ipprotection.net/
https://www.pixsy.com/

Good luck!

Comment 48: David Hoffman, 27 February 2017, 07:18 pm

Hi David,

Thanks for adding a more detailed response. I should have mentioned the CDPA 1988, which I have read numerous times.However,as I am also based in Scotland, I am always concerned that there may be slight differences. I don’t believe we have the same facility of using a small claims procedure for photography? Yes/No?

I now have my work monitored through PIXSY. They have legal experts in numerous counties, which is very helpful. Basically, they will support you if their legal team feel you have at least a 51% chance of success with your claim for copyright infringement.Not sure if they will help if you are not already a member. I have contacted them on occasions and they are very helpful and quick to reply.
There is a free account you can sign up for. You are able to upload images, and Pixsy will search the internet to see if they are being used. Not 100% fail safe but an individual would never be able to do this amount of searching. There is also some good information, and a list of some of the poorest excuses for copying photographs. Give it a try. It’s FREE.

Good luck Gayle! and thanks again to David for his valuable contribution.

John

Comment 49: John Williamson, 27 February 2017, 10:05 pm

Hi John

Well I’m back, I wrote letters similar to what you’ve described here to two tabloids and they never got back to me apart from one which said they would deal with it and I never heard from them again. I wondered if I claimed damages for too much money or something (was expecting an offer).

So I guess my hand is forced and I’m off to the small claims court.

Any tips on how to proceed?

Thanks

Alex
(based in England).

Comment 50: Alex, 28 February 2017, 05:44 pm

Hi Alex,

I don’t have experience of the small claims system in England, but David Hoffman gave me the following link, which you should find very useful.Thanks again David!

http://www.epuk.org/the-curve/the-infringement-pathway-a-step-by-step-guide-for-issuing-a-copyright-claim

It comes with a careful warning, but this is probably the advice you need.

It is also worth reading the following, which gives accounts of various cases and outcomes.Thanks is once again due to David, for providing the link.

http://www.epuk.org/news/legal-developments-that-help-photographers

There is a great deal of information on the EPUK site, it just takes time to select what you need. Remember however, this is not all legal advice, but those who have produced it have taken a great deal of time and care to provide guidance to all readers. My thanks, and I’m sure I speak for most readers, your work is very much appreciated.

Good luck Alex. Please keep us informed of the outcome, and other relevant points. By helping each other, we can at least move some way towards solving the problems we experience with copyright infringement.

Best wishes,

John

Comment 51: John Williamson, 28 February 2017, 10:20 pm

Hi everyone,

I thought that following my mention of PIXSY above, I should update you on some good news that arrived in my email today.

UK Resolution Program Launched

Infringements in the UK? If so, Pixsy has great news: we are now pursuing many UK cases through our in-house resolution program. This means we can handle cases quicker and without legal fees.

NB: I am not legally qualified to give advice. This is purely information obtain. It is your responsibility to research further any terms and conditions related to the above information.

John

Comment 52: John Williamson, 9 March 2017, 10:08 pm

I am a professional photographer, however I stopped taking pictures 10 years ago. Today I came across 2 stock agencies licensing. out my photos.. Royalty free both of these sites have a yearly renvue above 4 million yearly, and they both have about 70 photos of mine. 70!! differnt ones each..

And are selling high resolution digitized pics. For all kinds of commercial use or whatever the buyer wants, they also are selling licensing for my pictures. I dont want to say the name here, but I want to ask what do I do?? I have no idea how long this has been going on, if it has been going on a long time does that mean I no longer can do anything? I addition to this I find a art website, on this website you make a login and sell your art for free and the website takes a commission some one uploaded 12 pages of my photos on this website as well………….. For this website obviously someone pretend to be me and uploaded pictures to them, these pictures are NOT the same as the one of the stock agency sites. But there is about 300…….. So some person is running around using my name to make money. Again this is not the same pictures as stock agencies.

To make matters worse I am a horrible financial situation right now, I do not have a money for a lawyer. however I could pay a lawyer to right some cease and desist message, but I have zero ability to take anyone to court.. But this is just wrong, I do not want them to just stop, I want them to pay me something for this.. I have no idea how many years this has been going on… please what do I do? I read the policy to one of the sites and they say if you use one of the images there without permission they will bill you for 7 times the licensing price, or take you to court if you cant pay the fee.. Which I find really funny since they claiming ownership over MY photos, when they never got my permission to sell my pictures.. Right now I have found several websites, selling pictures illegally. 2 of them big stock agency. please any advice is appreciated.
Do I have any chance of getting any money out of these people? I have really struggle right now financial, having trouble getting food on the table, I want to approach this right and have limited resources, do I really stand any chance against these big companies? Unfortunitly I took pictures in the days before you registererd your photographs online for copy rights does thus null any rights I have? Also again for all I know they could have been selling these picsk for 7 years does thus null any rights I have?

Comment 53: Josh, 19 March 2017, 05:22 am

Hi,
I would suggest that in your case, you should contact one of the image rights management websites and ask what they are prepared to do for you. Obviously, there is a charge for their assistance/service, but at least you may be able to get some of your money back.
It really is sad that we need to go to such lengths to keep our own work protected and to stop people making money out of our artwork.

I am still dealing with some cases a few years after the infringement took place. Should I give up the attempt? My answer is NO!Every time someone gets away with theft, it reinforces the behaviour and they usually steal more. It is only when action is taken that there is a chance of the behaviour changing.Remember this well used phrase. The bigger they are, the harder they fall! So, no matter how large the company keep trying.

Good luck! Please keep us informed of progress.

John

Comment 54: John Williamson, 20 March 2017, 02:58 pm

I tweeted an image with added text (a motivational quote about sport) without permission from the image owner. The owner of the image quite rightly contacted me expression concerns, I removed the image and offered to pay a reasonable sum to settle the complaint and breech of copyright out of court.

My twitter account is personal and has zero commercial value. The image was of no benefit to my financially and was for personal, not business use.

Can anyone suggest how much a ‘reasonable sum’ may be? I understand these examples are highly complex and vary with each individual.

Many thanks in advance for any helpful information

Comment 55: Matt James, 28 April 2017, 11:56 am

“Highly complex and vary with each individual” is exactly right. They also vary according to the photo itself. And the photographer’s status. Amateurs are often flattered by the attention. Pro’s work for a living, so are more hard-headed.

Once copyright has been infringed, the value attached to the infringement becomes one of damages. That is losses that might ensue, for the photographer. That is a very ‘piece of string question’, since it can usually only be guessed at.

However there are factors that distinguish a wild guess from an informed one. Mainly: what would that photographer have charged for that use? If they are a working pro, they will have knowledge and paid invoices that establish the market value for similar photos and similar uses. If they lack specific info, they will probably go to pricing calculators at image library sites such as Getty or Alamy, and then estimate up or down from there depending on how mundane or unique the image is.

So, all I can suggest is that you use those calculators to try and arrive at a settlement offer that is fair to both you and the photographer.

Comment 56: Tony Sleep, 28 April 2017, 02:02 pm

Hi Guys,

Very helpful and informative article. I am glad I came across this post.

I have just found out that thesun.co.uk has used my image (800×600 pixels) in their online article without my permission and cropped out my copyright logo from the picture. Furthermore they haven’t credited me for the image, they have credited facebook instead. I believe the image was taken from my facebook photo album.

I planning to write a letter to thesun.co.uk and demand payment for using my picture without my permission.

Could you please give me advice on how I should pursue this and what sort of money I should be asking?.

Many thanks.

Max

Comment 57: Max, 5 June 2017, 08:05 pm

I am currently going through a claim in the small claims track for copyright infringement of over 20 photographic images which appeared on a competitors social media page.

The defendant is alleging a verbal agreement (although a competitor the company had been employed by my own company previously) I am assuming it is the defendant who has to prove a verbal agreement existed. For the record no verbal agreement existed and both companies were in despite over other matters at the time of the infringement. Does any one know of any case precedents in the uk which may help.

This is dangerous ground for copyright law because if courts start allowing people to allege verbal agreements or licences then this will be highly damaging for photographers protecting their copyright.

Comment 58: Marcus, 3 September 2017, 03:53 am

Marcus, I wish you every success with this case. For too long people have been ignoring the copyright law in relation to photography.
Obviously, the UK government can’t force social media owners to put up warnings as they are controlled outwith the UK. I do however feel the government has a duty to make people more aware of the law. Have you contacted your MP about this? I suggest we all contact our MP’s and ask them to raise the matter. We, as photographers have to take the case to them and demand our rights are better publicised. If you have a website or social media why not publicise the facts?
John

Comment 59: John Williamson, 3 September 2017, 08:23 pm

Marcus,

It will be up to the defendant to prove what they claim to be true.

Infringers routinely claim all sorts of untrue nonsense in an attempt to intimidate you into giving up. Remember this is a private game of poker until it gets to court.

Only then will they have to drop the claim of a verbal contract or prove that it existed. The court will take a view ‘on the balance of probabilities’ whether they are telling the truth.

In other words, if they are making stuff up about imaginary agreements, just refute it now, in writing, as untrue, tell them no such verbal agreement ever existed, and let them get on with increasing their costs and hanging themselves. The chances are they will pay your claim before it goes to court anyway, once they have run out of fibs and threats that haven’t worked.

Comment 60: Tony Sleep, 6 September 2017, 01:26 pm

HI Simon

I AM ONE OF THE UNCLEAN AS YOU MIGHT SAY GIVEN THE TONE OF SOME OF YOUR FOLLOWERS, BUT I do in fact agree with what you are trying to achieve which is a fare pay for a fare days work. My problem is the same as many others, is when some people who say they are photographers are deliberately using you advice to deliberately leaking photos out so as to make a living by taking unsuspecting people to court, also known as the “Honey Pot”. Yes I run a charity and have given my time for free,so I do not feel like the criminal that you portray. We did use a photo from the web an open site pictures from friends to help highlight our charity in the area. As soon as we where contacted about the picture we removed all traces, the picture was visible for one day. I have apologized and even asked to pay for the infringement, but no the man wants thousands now and hundreds every year from now on. Do you really feel that this is the way to highlight you grievance,yes I will use we are a charity not to hide behind but to do good, one of your followers is about to put this charity out of business and he did not have to but seems happy at his work. I would rather be known as someone who unknowingly used a picture, than Dick Turpin.

John

Comment 61: jOHN MC cUTCHEON, 11 December 2017, 08:50 pm

HI Again

Sorry to keep adding comments to your little chat room to follow on to my last rant as you might say, Mr Mckie seems quite happy about the pain and misery he hands out to make his mark, but I feel I can be proud that I have help rather than taken. For someone to call anyone a criminal would mean they have no criminal record.

Comment 62: jOHN MC cUTCHEON, 11 December 2017, 09:07 pm

John McCutcheon,

If you believe excessive damages are being demanded, ask for an explanation from the photographer. If he takes you to court he will have to explain his damages claim to the judge. It must be a reasonable and provable amount of loss. Photographers cannot just pluck a figure out of thin air and treble it. The courts will not enable nor tolerate extortion. If his claim is unreasonable it will be thrown out.

Regards / Tony Sleep

Comment 63: Tony Sleep, 12 December 2017, 10:35 am

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EPUK Editorial Photographers United Kingdom and Ireland. The private mailing list and public resource for editorial photographers

Stolen photographs: what to do?

Download the full article as a PDF

Use it or lose it

Playing conkers with that old chestnut – the starting point for damages

Claiming more

Corresponding with an infringer

Samples

First Letter

Second letter – a grumpy one

Further reading and resources

Comments

Comment on this article

What is EPUK?

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