Copyright Theft - legal Status of removing watermarks?

[Martin P Wilson]

I have just had someone use 6 (at least) of my images after I explicitly told him that my pictures were not available for free. He must have taken them from the event organisers web site where they were watermarked with a copyright notice. I will be billing the magazine that used them for full list price based on the calculator on my web site - >£500 plus the administrative time of dealing with the theft. I had a clear agreement in writing with the event organisers that they could only use the supplied images on their online presence and confirmed in a separate follow up email that he cannot expect free pictures.

 

The other point I am trying to clarify whether removal of the watermark is an illegal act in the UK. I realise it strengthen my case that this was deliberate copyright theft. They have not been published anywhere without a watermark.

 

I will be checkinbg that they were not licenced from Alamy but judging by the credit they weren't especially as three are from separate selections I made for the event organiser. Having met the guy I believe he is arrogant enough to believe that he can do anything without repercussions. I was chasing copyright before he was born and have had a heavyweight project management career so have a little experience of fighting my corner.

[Phil Robinson]

I doubt that removing the copyright notice is a criminal act in itself but it certainly negates any argument he might use about pleading ignorance about ownership. It sounds like you have a watertight case there (though I have little personal experience of this kind of thing)

[spacecadet]

If it's in England sending a bill limits your options. Try this

http://www.epuk.org/Opinion/994/stolen-photographs-what-to-do?pg=4

Removing watermarks is a breach of statutory duty at the very least and grounds for claiming additional damages.

What you have is a clear breach of licence terms. Be prepared to prove it. There's now a fairly simple small claims process.

Breaching copyright for gain and in the course of trade is a criminal offence but try telling that to the police.

[Lionel]

Ok, taking a deep breath here because I'm not a lawyer....

 

You can retrieve the text of the UK law titled "Copyright, Design and Patents Act 1988" from here http://www.legislation.gov.uk/ukpga/1988/48/contents?text=copyright%20infringement#openingWholeMod

 

I don't know if this text includes all amendments, so you will need to take that into account.  The pdf I downloaded a few minutes ago (from the above url) includes a section titled "296ZG Electronic rights management information" on page 258.  Perhaps this is what you're looking for?

 

The phrasing and language in this law is rather heavy going....

 

I'm very interested to know how this develops - to the extent you can provide that information.

 

Regards

Lionel

[Linda]

When watermarks are removed or when someone knowingly steals an image, it's 'Willful infringement' and any lawsuit would be seeking $150,000 per image ONLY if your images were registered with the US Copyright infringement before publications.

It does not mean yu will collect that of course as various factors come into play.But,that is the fee lawyers like to start with when filing suit. Sometimes $50,000 though.

 

On a 'retroactive license' it's customary to bill 3-10x the photo fee.

 

My billing starts at $1200 for most photos.Rare photos are much more.

 

I bill $300 per image PER link from 1 day up to 1 year. Then I add 3x penalty.

 

I collect some cases on my own but give the majority to imagerights PRIOR to me having any contact with the infringer. Imagerights only takes a fee if they win. I have images uploaded to their database as it's much quicker to push cases thru.

I've been with them for three years now,they've won many cases.Not all,but many.

 

I'm signed up for the $295 deal.If they take someone to court,they pick up the cost. They don't go after blogs or social media use. You don't have to do that though.You can pay the $50 per case.But I submit many cases so the $295 a year is a no brainer.It also nets me 55% of the amount they collect.

 

They just won $3000 for me last week.

 

If you'd like to  sign up with them,PLEASE use my affiliate link  at:

 

https://www.imagerights.com/signup?aid=4898

 

 

L

[Martin P Wilson]

When watermarks are removed or when someone knowingly steals an image, it's 'Willful infringement' and any lawsuit would be seeking $150,000 per image ONLY if your images were registered with the US Copyright infringement before publications.

It does not mean yu will collect that of course as various factors come into play.But,that is the fee lawyers like to start with when filing suit. Sometimes $50,000 though.

 

On a 'retroactive license' it's customary to bill 3-10x the photo fee.

 

My billing starts at $1200 for most photos.Rare photos are much more.

 

I bill $300 per image PER link from 1 day up to 1 year.

 

I collect some cases on my own but give the majority to imagerights PRIOR to me having any contact with the infringer. Imagerights only takes a fee if they win. I have images uploaded to their database as it's much quicker to push cases thru.

I've been with them for three years now,they've won many cases.Not all,but many.

 

I'm signed up for the $295 deal.If they take someone to court,they pick up the cost. They don't go after blogs or social media use. You don't have to do that though.You can pay the $50 per case.But I submit many cases so the $295 a year is a no brainer.It also nets me 55% of the amount they collect.

 

They just won $3000 for me last week.

 

If you'd like to  sign up with them,PLEASE use my affiliate link  at:

 

https://www.imagerights.com/signup?aid=4898

 

 

 

 

Thanks Linda, unfortuantely this is in UK - the wilfulness is doubled as he had come on to me EXPECTING me to give him the images for free. He should have been warned when I was equally robust that I did not give work away. He then still stole the images and cropped off the watermarks. We do don't have the punitive damages model in the UK but we do have an easy to use small claims court, it has an IP route but last ime I looked that was only in person in London - expensive option for me.

 

I will follow up on it next week when I have all the evidence to hand especially confirmation that he did not licence any from Alamy - I am certain that he didn't but I want to have all my facts straight before I hit his CEO with my complaint and costs.

 

I will research the IP Office guidance and the law on this as spacecadet and Lionel suggest.

 

Once the civil liability is sorted I may go after him on a personal level - he has a high profile in the city's creative organisations and has clearly demonstrated that he is not a fit or proper person to represent creative artists' interests. Won't waste a lot of time, just a few carefully targetted letters - I suspect he has few true friends judging by the comments I have heard. I would love to bring the arrogant **** down a peg or three.

[Linda]

 

When watermarks are removed or when someone knowingly steals an image, it's 'Willful infringement' and any lawsuit would be seeking $150,000 per image ONLY if your images were registered with the US Copyright infringement before publications.

It does not mean yu will collect that of course as various factors come into play.But,that is the fee lawyers like to start with when filing suit. Sometimes $50,000 though.

 

On a 'retroactive license' it's customary to bill 3-10x the photo fee.

 

My billing starts at $1200 for most photos.Rare photos are much more.

 

I bill $300 per image PER link from 1 day up to 1 year.

 

I collect some cases on my own but give the majority to imagerights PRIOR to me having any contact with the infringer. Imagerights only takes a fee if they win. I have images uploaded to their database as it's much quicker to push cases thru.

I've been with them for three years now,they've won many cases.Not all,but many.

 

I'm signed up for the $295 deal.If they take someone to court,they pick up the cost. They don't go after blogs or social media use. You don't have to do that though.You can pay the $50 per case.But I submit many cases so the $295 a year is a no brainer.It also nets me 55% of the amount they collect.

 

They just won $3000 for me last week.

 

If you'd like to  sign up with them,PLEASE use my affiliate link  at:

 

https://www.imagerights.com/signup?aid=4898

 

 

 

 

Thanks Linda, unfortuantely this is in UK - the wilfulness is doubled as he had come on to me EXPECTING me to give him the images for free. He should have been warned when I was equally robust that I did not give work away. He then still stole the images and cropped off the watermarks. We do don't have the punitive damages model in the UK but we do have an easy to use small claims court, it has an IP route but last ime I looked that was only in person in London - expensive option for me.

 

I will follow up on it next week when I have all the evidence to hand especially confirmation that he did not licence any from Alamy - I am certain that he didn't but I want to have all my facts straight before I hit his CEO with my complaint and costs.

 

I will research the IP Office guidance and the law on this as spacecadet and Lionel suggest.

 

Once the civil liability is sorted I may go after him on a personal level - he has a high profile in the city's creative organisations and has clearly demonstrated that he is not a fit or proper person to represent creative artists' interests. Won't waste a lot of time, just a few carefully targetted letters - I suspect he has few true friends judging by the comments I have heard. I would love to bring the arrogant **** down a peg or three.

 

Imagerights has won cases for me in the UK as well as France and Italy. If I were you I would bulk register your copyrights in the USA because you if they used them,they will be stolen and most likely for USA outlets. Lawyers  here will not take on a case if the copyright has not been registered prior to publications. You will not be able to collect damages either.

 

You definitely have a case.I hope you got the URLS as well as screengrabs and saved all emails.

 

Be careful going after someone on a personal level. He could do the same and you don't know who he knows and he could be very vindictive for all you know. Also,it could backfire if it's considered slander.So consider your financial/legal options first.

 

 

Good Luck.

 

L

 

My imagerights affiliate code.Please use it if you'd like to sign up.No cost to you unless they recover $$$. I'm a Happy imagerights customer since 2012   $$,$$$.$$  :-)

 

https://www.imagerig...signup?aid=4898

[Martin P Wilson]

Yep, first thing I did was collect urls, screengrabs and of course the emails are current. To be fair the event organisers have been great but the infringer is on the event board and chairs an organisation of which I am a member which is why there is a personal element to it.

 

Now I am working at being a full time photographer I was planning to register my images in the USA, no similar need/ scheme in UK.

 

I will certainly look at imagerights and will use your affiliate code when I sign up.

 

I have an acquaintance who is/was (he may have retired) the IP Partner in the local office of a major legal firm. I will getting in touch with him to see what he is up to and see if he would like a retirement project.

[Linda]

If copyrights are not registered,sure lawyers will take you on but average fee is $400 an hour for a good IP lawyer. These cases take 1-3 years on average and legal fees can run up to $50,000 so that's why you want to register prior.

 

L

[Lionel]

Martin, if you use Firefox you can grab much more than a screenshot - and it's very simple to do. So, assuming you use Firefox, navigate to the offending images and in the Firefox "File" menu select "Save Page As" and specify "Web Page, Complete" as the format.  This will be quite a lot of pieces of data and for the sake of keeping your disk neat and tidy I recommend you create a directory/folder for each save.

 

Regards

Lionel

[Martin P Wilson]

I am aware of that thanks Lionel; its a good point for those that may not be so savvy. I am not expecting this to be difficult, if the magazine resists I will just bang it into the Small Claims Court. The fact that I had an exchange with the event organisers about the conversation the same evening who confirmed our agreement and he removed my watermark is enough to show wilfull intent, that it was not an inadvertent mistake. As an experienced journalist and editor he can hardly claim lack of knowledge of copyright; if he does he is just telling the world he is incompetent.

[regen]

Martin,

 

As others have said dont send an invoice. I did this back in 2006 and was eventually advised to drop the case because the defence was based on the fact there was no purchase order.  It is breach of copyright which is what you need to proove and has little to do with the prices you charge.

 

Good luck

Regen

[spacecadet]

Martin, the IPEC is indeed in London but I'm sure you can post the forms. Give them a ring.

If he defended you'd both have to come down to the smoke but hopefully it's open and shut and it won't come to that.

I have one brewing and will probably issue in person but I'm only a tube ride away.

My policy is to demand the highest fee you can justify and forget about damages until you get to court.

 

Linda, sorry to have to repeat it but this is a UK infringement and we do not have statutory damages, but we do now have a cheap small claims procedure for copyright.

[Martin P Wilson]

I will be dropping them a line tomorrow now I have my evidence together and I am not proposing to mention any figures at this stage as it will depend on their response. My suspicion is they have been effectively stiffed by one of their editors (maybe a freelance) but that is their issue. If they take strong a decisive action then we will have a basis for negotiating compensation and perhaps future work. I will make it clear that there will be some financial pain whatever as they have benefited from the copyright breach - if, how and where they seek to recover those costs is up to them.

 

If they are difficult I will follow the guidance and may suggest a figure for the basic breach and my time. I will then ask the court to set any additional compensation for moral hazard, there is good evidence of flagrant and wilfiul breach - not accepting my refusal to give them free pics and stealing them anyway, removing my watermark and metadata, and probably more. If it goes that far then I will also ask the court to consider the contingent risks e.g. the risk of orphaning the work and my reduced ability to use the works elsewhere and losses and seek indemnification for those as well - I was already in discussion with a specialist agency to take the collection of work which includes the stolen pictures.

 

It was  a good while ago, at least a year, since I looked and the IPEC was then only in London. I was under the impression that it was  supposed to be rolling out to the regions in due course; I will explore that further tomorrow. If we get to that stage I will have an informal chat, and possibly seek his professional advice properly, with an acquiantance who is, or was if he retired recently, the IP Partner for a major law firm.

[KerinF]

 

This article in the New Yorker is timely:  http://www.newyorker.com/tech/elements/photographers-can-protect-work

 

Doesn't specifically assist you in this instance, but worth a read anyway.

[hotbrightsky]

Martin - I believe that the deliberate removal of a watermarked copyright notice does constitute the criminal act of copyright theft in UK law. This is not simply a case of infringement.

 

You are perfectly within your rights to make a "Without Prejudice" offer to settle out of court and this shouldn't affect your case at a later date.

 

Here is a suggested draft form of your communication in such a case, after first establishing the facts of your image's unauthorised use (i.e. get their side of the story in writing before sending this):

 

 

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 [ ].

.

[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

 

I'm afraid I can't find the original source of this advice on the internet now, but it was posted on a reputable industry website by a recognised legal authority on the subject a couple of years ago.

 

It worked for me. Eventually. Good luck!

[Paulstw]

I currently have an open case with Image Rights for this exact thing. The site removed the watermark (cropped out) and stuck it on their site. Image Rights were right on the case about it. 

[Martin P Wilson]

I have sent a Without Prejudice letter based on EPUK guidance and I have reserved my position as how I will proceed or the level of compensation I will seek. I have set out the aggravating factors, removed watermark, metadata and the fact I had already told an editor that I did not give my work away. I am now waiting on their response, if they are properly contrite and admit the breach then I may takle a softer line on compensation; but it will still be painful and I don't expect future work (I suspect they don't pay anyway).

 

Actually if I had discovered it next week I might have gone with ImageRights which I am in the position of joining. I suspect they would be a lot harder nosed.

 

Paul, how have you found IR especially in the UK? You can message  me privately if you prefer.

[spacecadet]

Martin - I believe that the deliberate removal of a watermarked copyright notice does constitute the criminal act of copyright theft in UK law. This is not simply a case of infringement.

 

You are perfectly within your rights to make a "Without Prejudice" offer to settle out of court and this shouldn't affect your case at a later date.

 

Here is a suggested draft form of your communication in such a case, after first establishing the facts of your image's unauthorised use (i.e. get their side of the story in writing before sending this):

 

 

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

 

I'm afraid I can't find the original source of this advice on the internet now, but it was posted on a reputable industry website by a recognised legal authority on the subject a couple of years ago.

 

It worked for me. Eventually. Good luck!

That's the EPUK article I referenced.

Martin, the IPEC is still just in London but it shouldn't come to a hearing. If it does you can claim for your travel and limited loss of earnings.

We should compare notes on this one.

[Martin P Wilson]

Thanks Mark,

 

Hopefully it won't come to that - it is pretty cut and dried. The main issue is setting the level of compensation to ask for especially with the agravating factors. I have dropped an email to a long standing acquaintance (he was a year behind me at school and married my best man's sister) who is IP partner at a major legal firm in Nottingham. I will probably have a quick chat with him, hopefully over a beer, to set a figure that will not to be considered unreasonable by the court if we end up there.

[spacecadet]

The starting point is the highest point of the various calculators based on the admitted use, unless you can prove they used it for something else in which case you work out separate licences for that. AS I said forget damages unless it goes to court, when you would want to be able to prove that you had in fact got those sort of fees before, although you'd only need to justify your fees if they took the extraordinary step of admitting the infringement but objecting to the fee.

[Betty LaRue]

Be prepared for a "he said" "he said" fight, unless you have a witness to the fact you told him no, you don't give your work away for free.

 

Years ago, my car was rear-ended by a guy who wasn't watching me, but the Interstate we were about to merge onto. I had severe whiplash injury, he ran up, asked if I were OK, then said it was all his fault.

Then his insurance didn't want to settle. This nice guy denied he ever took the blame to me, and tried to blame it on me during depositions. Said some total lies about my driving. I did collect, though.

 

One thing I have discovered through the years. Truth means nothing. Right doesn't always win out. And just because one is sworn in during depositions or at trial, people lie through their teeth under oath.

 

I found it hard to realize I had always been a trusting soul believing a person's word was gold for as long as I did.

My mother and sister listened to a female attorney lean over and tell a witness to lie about some facts of a case during trial if or when she was asked certain questions.

When I told my husband's attorney, he didn't want to pursue it, because it could have led to Ms attorney being disbarred. Then the legal community would have not looked kindly on him.

Please tread carefully. If this guy is as bad as he seems, he will lie.

Betty

[Martin P Wilson]

I am seeing inapparopriatebehavious already. But they are being to look rather less bright than I expected as they effectively adnitted  they used my material with out authority and tryingto blame it "on the team who did not undwerstand they were not free to promote the event". So really only who in their organisation is reasonabale is in question and that is not a matter for me or the court if it gets there. Unfortunately for them there is an email exchange between me and an event director confirimg the terms of our agreement, that the infringer and their agent were not entitled to free use of the images - in fact describing that expectation as unreasonable. According to that email she proposed to speak to the individual to make it clear. At this stage I don't know whether she did.

 

I will probably get a good acquiantance of mine who is an IP Partner for major lay foirm on the case, I have had some informal guidance on compensation from him already.

[Paulstw]

I have sent a Without Prejudice letter based on EPUK guidance and I have reserved my position as how I will proceed or the level of compensation I will seek. I have set out the aggravating factors, removed watermark, metadata and the fact I had already told an editor that I did not give my work away. I am now waiting on their response, if they are properly contrite and admit the breach then I may takle a softer line on compensation; but it will still be painful and I don't expect future work (I suspect they don't pay anyway).

 

Actually if I had discovered it next week I might have gone with ImageRights which I am in the position of joining. I suspect they would be a lot harder nosed.

 

Paul, how have you found IR especially in the UK? You can message  me privately if you prefer.

 

I haven't joined up but opted to pay the $55 fee for one time use. I don't see that many of my shots stolen. Likely as they aren't popular or rare enough, however, IR were very fast, professional and I feel it's in the right hands. You get an area of the site where you can check on the progress. You also get to set how low a percentage they can negotiate a settlement figure without your consent. 

 

They take 50% cut, which may shock some, however, so do Alamy and I figured that IR know this, so factor it in, as this would have been the deal in the first place, had the company actually licensed the image. 

[spacecadet]

Be prepared for a "he said" "he said" fight, unless you have a witness to the fact you told him no, you don't give your work away for free.

 

Years ago, my car was rear-ended by a guy who wasn't watching me, but the Interstate we were about to merge onto. I had severe whiplash injury, he ran up, asked if I were OK, then said it was all his fault.

Then his insurance didn't want to settle. This nice guy denied he ever took the blame to me, and tried to blame it on me during depositions. Said some total lies about my driving. I did collect, though.

 

One thing I have discovered through the years. Truth means nothing. Right doesn't always win out. And just because one is sworn in during depositions or at trial, people lie through their teeth under oath.

 

I found it hard to realize I had always been a trusting soul believing a person's word was gold for as long as I did.

My mother and sister listened to a female attorney lean over and tell a witness to lie about some facts of a case during trial if or when she was asked certain questions.

When I told my husband's attorney, he didn't want to pursue it, because it could have led to Ms attorney being disbarred. Then the legal community would have not looked kindly on him.

Please tread carefully. If this guy is as bad as he seems, he will lie.

Betty

It's not going to get to that in the UK.

We don't have depositions.

On the small claims track legal expenses aren't awarded so lawyers are not usually instructed.

Another thing, and I hate to bring it up as it might seem like criticism of the US system, which is not my place, is that our barristers don't lie, they act on instructions.

Just trying to point up that we have a very different system.