geogphotos

Infringement claim - UK Small Claims

Recommended Posts

Posted (edited)

I am interested in anybody's experience of chasing image copyright infringements in the UK Small Claims Court.

 

How do you calculate the fee that is owed, how do you support this with evidence, and what can be done in terms of 'punitive damages' for the infringement.

 

To put it bluntly can't they just point to prices on microstock sites and offer a few pennies?

 

This is for an RM image used in a hardback book in UK. 

Edited by geogphotos

Share this post


Link to post
Share on other sites

I would have thought as you do not supply MS sites,  then the calculator price for the usage should be acceptable as they haven't bothered to get a licence.

Is it an image that has been used before? ie how did they manage to get an un-watermarked copy.

Share this post


Link to post
Share on other sites
48 minutes ago, BobD said:

I would have thought as you do not supply MS sites,  then the calculator price for the usage should be acceptable as they haven't bothered to get a licence.

Is it an image that has been used before? ie how did they manage to get an un-watermarked copy.

 

It is only on Alamy and there is no download history at all. My suspicion is that it has been taken from my website. 

 

My images are unwatermarked because I allow for free education use. 

 

Let's say my online price calculator comes up with a fee of £50. Is that all that can be claimed, or can you ask for some sort of penalty of say another £50 on top? 

Share this post


Link to post
Share on other sites

As they are publishers they have no excuse not to understand copyright.

I believe ( though I am no expert ) that flagrancy can be claimed, although what this would add to the claim I have no idea.

 

Share this post


Link to post
Share on other sites
Posted (edited)

This is a bit dry and academic, but it gives an idea as to the judge's thinking being applied in IPEC. it's quite encouraging.

https://www.create.ac.uk/blog/2018/05/14/new-working-paper-photographic-copyright-and-intellectual-property-enterprise-court-in-historical-perspective/

As to flagrancy, in Absolute lofts v Artisan home improvements, the judges awarded twenty times the fee for flagrancy, unfair profits, and breach of moral rights by failure to give credit.

Obviously offer an opportunity to settle, but I'm thinking somewhere north of £1000. Your own price calculator isn't too relevant- I usually prefer to use getty's as they're expensive- work out the highest category you can justify, add for flagrancy and moral prejudice and take it from there. The epuk article is instructive.

And consider making the image unsearchable for a while, if you think they might look on Alamy for it.

The pennies argument doesn't hold water. That's not where your image is.

Edited by spacecadet

Share this post


Link to post
Share on other sites

Thanks for the help and advice.

 

Not wishing to sound ungrateful but does anybody have actual real experience of taking an infringement through the courts?

Share this post


Link to post
Share on other sites

I've only used the Small Claims Court for non-payment of an invoice for commissioned work but the process is very straightforward. You could always send an invoice to the infringer with a deadline to pay and then use the court route.

Share this post


Link to post
Share on other sites
13 minutes ago, AndrewP said:

I've only used the Small Claims Court for non-payment of an invoice for commissioned work but the process is very straightforward. You could always send an invoice to the infringer with a deadline to pay and then use the court route.

 

Yes indeed.

 

But how to decide what to charge them given that they have infringed my copyright?

Share this post


Link to post
Share on other sites
19 hours ago, geogphotos said:

Thanks for the help and advice.

 

Not wishing to sound ungrateful but does anybody have actual real experience of taking an infringement through the courts?

Fair enough.

But I reckon it's a result when you don't have to, because the infringer knows you can and will.

That paper I referenced suggests that there are only a few dozen cases a year getting as far as IPEC. It's a lever towards settlement.

Share this post


Link to post
Share on other sites
Posted (edited)
18 hours ago, geogphotos said:

 

Yes indeed.

 

But how to decide what to charge them given that they have infringed my copyright?

Quite so, some cases have started out as straightforward money claims. My understanding is that it has to go to IPEC if you want more than a simple fee. The money claims route doesn't have jurisdiction to go into the law of copyright.

Have you already contacted the infringer, or are you assuming they won't settle?

Edited by spacecadet

Share this post


Link to post
Share on other sites

The author of the book admits taking my photo from the internet 'accidentally'. 

 

I have requested what I think is a very reasonable fee for a quick and amicable settlement. He says he won't pay but that neither will the publisher because his contract makes him solely responsible ( or something).

 

Now, who would you go after - the author - or the publisher of the book?

 

My gut feeling is that I should be dealing with the publisher, and it is up to them to deal with their author should they need to recoup any costs. It was the publisher that I first contacted but then the author was obviously told to deal with me. 

 

Thanks Spacecadet for the information about the IPEC. At the moment that looks to be the way forward.

Share this post


Link to post
Share on other sites
1 hour ago, geogphotos said:

He says he won't pay but that neither will the publisher because his contract makes him solely responsible ( or something).

He may have a contract for freelance work that includes an indemnity clause for the work he provides to the publisher.

 

This is a similar story where people still assume everything on the internet is free and don't think they should pay to use it (a 4 minute listen):

https://www.bbc.co.uk/programmes/p069s3gl

Edited by AndrewP

Share this post


Link to post
Share on other sites
5 minutes ago, AndrewP said:

He may have a contract for freelance work that includes an indemnity clause for the work he provides to the publisher.

 

This is a similar story where people still assume everything on the internet is free and don't think they should pay to use it (a 4 minute listen):

https://www.bbc.co.uk/programmes/p069s3gl

 

Thanks, yes, I heard that BBC programme and started a thread about it here which subsequently went off track ( my fault) and was deleted by Alamy admins. 

 

I think it quite likely that there is an indemnity clause but that is between them, the publishers can't just shrug off any responsibility can they?

 

I will send the publishers an invoice today and see how they react.

Share this post


Link to post
Share on other sites
2 minutes ago, geogphotos said:

I think it quite likely that there is an indemnity clause but that is between them

Yes, if you claim against the publisher, and by definition they are the ones doing the 'publishing' which causes the infringement, then they can sort it out with the person who sourced the image.

 

All this actually goes back to what's taught in schools. All pupils have access to Google and find photos to use in their school work, this then continues in college/university. When they then get a job and are asked to find a photo for a report/brochure/website they go straight to Google. That's when their boss gets sent a copyright infringement claim and in all the years the person has been sourcing photos from the internet through education they've never once been told about copyright.

Share this post


Link to post
Share on other sites
38 minutes ago, AndrewP said:

Yes, if you claim against the publisher, and by definition they are the ones doing the 'publishing' which causes the infringement, then they can sort it out with the person who sourced the image.

 

All this actually goes back to what's taught in schools. All pupils have access to Google and find photos to use in their school work, this then continues in college/university. When they then get a job and are asked to find a photo for a report/brochure/website they go straight to Google. That's when their boss gets sent a copyright infringement claim and in all the years the person has been sourcing photos from the internet through education they've never once been told about copyright.

 

That's how I see it. 

 

And you are 100% correct about the education side of things. I used to run Geography Photos as a subscription site for schools and you wouldn't believe how ingrained this 'everything if free' attitude is among teachers. 

 

Edited by geogphotos

Share this post


Link to post
Share on other sites

Or just put them both down as defendants. It doesn't cost any extra. They can fight it out between themselves.

In law they're both infringers IMO- no indemnity changes that.

Snag is, if you send an invoice, that's the amount you're stuck with at court, whereas if you go the way of that very good EPUK article, you can go for flagrancy and moral prejudice as well.

Just my idea, but if you've already been fobbed off, I think I'd be going the infringement route.

 

Edited by spacecadet

Share this post


Link to post
Share on other sites
21 minutes ago, spacecadet said:

Or just put them both down as defendants. It doesn't cost any extra. They can fight it out between themselves.

In law they're both infringers IMO- no indemnity changes that.

Snag is, if you send an invoice, that's the amount you're stuck with at court, whereas if you go the way of that very good EPUK article, you can go for flagrancy and moral prejudice as well.

Just my idea, but if you've already been fobbed off, I think I'd be going the infringement route.

 

 

If they pay up amicably then I will be perfectly content. As I mentioned to you before going to Court is no fun at all even when you win. Lots of hassle, lots of stress.

 

But obviously I am building up evidence just in case.

Edited by geogphotos

Share this post


Link to post
Share on other sites
1 hour ago, geogphotos said:

 

I used to run Geography Photos as a subscription site for schools and you wouldn't believe how ingrained this 'everything if free' attitude is among teachers. 

 

 

Indeed. Years ago I used to do my own marketing for the software I write, and many of my customers were schools. On one occasion a teacher told me, in a matter-of-fact way, that he operated a service copying software not just for teachers in his own school but other local schools as well. He was quite unaware that he was breaching both his moral and his legal obligations.

 

Alan

Share this post


Link to post
Share on other sites

I don't know anything about the legalities but a friend of mine who is a writer has told me that authors have to buy the photos for their books. I was surprised but that is apparently how it is usually done.

 

Paulette

Share this post


Link to post
Share on other sites
On 6/9/2018 at 07:19, geogphotos said:

How do you calculate the fee that is owed, how do you support this with evidence

 

 

Industry standard for infringement = 10X one's regular licensing fee for infringed usage AFAIK,

e.g., US textbook licenses were typically $180, infringed image cases settled typically for $1800/image.

Supporting evidence = google "infringement penalty" "industry standard" or similar & try to

find others mentioning same...

Edited by JeffGreenberg

Share this post


Link to post
Share on other sites
21 minutes ago, JeffGreenberg said:

 

 

Industry standard for infringement = 10X one's regular licensing fee for infringed usage AFAIK,

e.g., US textbook licenses were typically $180, infringed image cases settled typically for $1800/image.

Supporting evidence = google "infringement penalty" "industry standard" or similar & try to

find others mentioning same...

It's not the same in the UK as we don't have statutory damages as leverage and penalties are not permitted in civil cases.

However as stated one can claim extra for flagrancy and, under an EU law principle, moral prejudice, for example for non-attribution.

Share this post


Link to post
Share on other sites

They have agreed to settle. So hopefully there will be no need to go down the Court route. 

Share this post


Link to post
Share on other sites
4 minutes ago, geogphotos said:

They have agreed to settle. So hopefully there will be no need to go down the Court route. 

Probably a quick call to their lawyer who told them they hadn't a leg to stand on. Result.

I hope the amount you're asking makes it hurt just a bit and compares very unfavourably with a proper licence.

Edited by spacecadet

Share this post


Link to post
Share on other sites
4 minutes ago, spacecadet said:

Probably a quick call to their lawyer who told them they hadn't a leg to stand on. Result.

I hope the amount you're asking makes it hurt just a bit and compares very unfavourably with a proper licence.

 

Yes, and no commission to pay. So the equivalent of a very good Alamy sale. 

  • Like 1

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now