Do we need to be prepared for someone to demand £1000 for copyright violation?
December 22, 2008 10:14 AM   Subscribe

Is a photographer likely to press us for £1000 for using his image on our UK website?

I used a picture of a famous local landmark on a website for a local subgrouping of our organisation, which I did voluntarily. There are a lot of pics of this landmark around, including free to use ones, and I thought that the image I used was free to use, but mistakenly I used an image instead from a guy who has a very aggressive copyright policy on his website.

Today I got a phone call from a colleague who said someone (I am not sure whether this is the photographer or a lawyer) sent five emails to the local group and also contacted the press office, and was threatening legal action. Note: I am unsure whether this is the photographer or a lawyer who sent these emails. Anyway I was asked to take the image down, and I did.

However the guy's copyright policy says he is charging people £1000 per year or part year for any unauthorised use of his photos.

My partner says that they can't just charge you and expect you to pay - they have to ask you to take it down first. Is this right?

I was panicking and didn't listen closely but was firing up my computer to get rid of the image as quickly as possible but I think the law that my colleague said the photog (or his lawyer) was citing was the Copyright Designs and Patents act.

My question is - could this guy legitimately demand £1000 from the organisation, now that the picture is down, for the previous online display of the picture?

My husband thinks it's like Youtube violations - you demand the image is taken down, it's taken down, if its not taken down, then the person can sue.

Note - my colleague is glad I took the thing down and thinks its water under the bridge, but I need to warn him if it's likely that this guy will follow up and ask for money, if he's got a chance of suing, winning and getting it! If it comes to that I will just probably pay it myself in order to protect these other people.

On the other hand, I won't be advising these folks to get a lawyer unless there is an absolute need for one, because I could cause myself damage by creating unnecessary drama, so if you advise me to get a lawyer please tell me clearly why.

Note - colleague is referring to the person as a 'nutter'.. as I think about it, that likely means it was the individual artist and not a lawyer contacting us..

Additionally, I can't prove that I used the image in good faith. I probably just downloaded and used the wrong image from a google image search but there's no way to prove that.

Throwaway email:
posted by anonymous to Law & Government (13 answers total)
IANAL, but from everything I know about copyright, you need to be prepared to be sued and lose.
posted by awesomebrad at 10:30 AM on December 22, 2008

My general approach to things like this is to not worry about it until you get something on paper from a lawyer or a court. It's just huffing and puffing otherwise. He may just lose interest and move on to softer targets if you demonstrate good faith in removing the image when notified of infringement. I'm coming from the US, but AFAIK this is fairly common sense legal behavior.
posted by rhizome at 10:35 AM on December 22, 2008

as a note, the 'youtube rule' your husband refers to works because the content is uploaded by a user, and they can't possibly look at every video ever and judge it. added on to that, if the copyright holders could identify the individual users, you can bet they'd be sued, but google isn't handing out logs. the fact that you/your company put the picture up yourselves makes you, a known company, not the random user, the target. sure, you still made a good faith effort, but you're still guilty, no takedown required.

if i were you, and if this guy keeps pestering, definitely try and settle it before he actually sues, maybe say 'hey listen, we didn't know about the copyright, apologies all around, can we offer you $500 and call it a day?'
posted by Mach5 at 10:42 AM on December 22, 2008

Your husband is wrong. Even in the case of copyright infringement via YouTube, the person who uploaded the photo will still be liable even if YouTube takes down the photo.

He can definitely sue and win. Whether he will get £1,000 is another story, although the cost to you could be even greater since he is likely to get costs awarded as well. So if you think he is still going to sue you after your takedown, you should contact a solicitor to mitigate the damages. The question is

Is your organization incorporated? I hope so, since you are big enough to have a press office, but if you are an unincorporated association, the liability may extend to all of your members. Getting sued would be a mess to avoid moreso than usual.

My general approach to things like this is to not worry about it until you get something on paper from a lawyer or a court.

This isn't always such a great idea in the UK system, because it is a "loser pays" system. By the time you get something on paper from a court, you will owe extra money (£65 in filing fees plus a limited amount for attorney's fees and expenses). And this is a pretty straightforward case for the claimant, so he might file a case against you without using a lawyer (and can still claim costs for his time and expenses as a litigant in person).
posted by grouse at 10:51 AM on December 22, 2008

This isn't always such a great idea in the UK system, because it is a "loser pays" system. By the time you get something on paper from a court, you will owe extra money (£65 in filing fees plus a limited amount for attorney's fees and expenses).

That's fine, but what alternative are you suggesting for the OP to mitigate the £1,000, just to pay it? From your description it sounds like there would be no way to avoid the £65 anyway.

The OP does not have much leverage here, that's why I think the smart money keeps the ball in the other guy's court until something real happens.
posted by rhizome at 11:06 AM on December 22, 2008

A solicitor could advise on what a realistic amount of damages assessed at court would be, which would be useful in deciding what sort of settlement to offer or accept.

If it were me (and this is by no means legal advice), I would probably wait to see if he is still adamant about payment after the takedown. If he is, I would probably make an offer marked "without prejudice" for £150, with associated verbiage, since I'm guessing that's about how much a consultation with a solicitor would cost. If that didn't work I'd probably see a solicitor before offering more.

From your description it sounds like there would be no way to avoid the £65 anyway.

It's £65 plus up to £70 in costs, if you settle right after receiving the claim form for a £1,000 money claim. You can avoid that by coming to settlement before the claim is filed with a court. I suppose it all boils down to how likely you think it is that he will take it that far. But I think he has little to lose by doing so; it is pretty easy, as you can even sue someone online.
posted by grouse at 11:45 AM on December 22, 2008

Unless the guy's just a vindictive jerk, he probably won't sue you now that you've taken the image down, although he has full legal right to.

Also, make sure you remove the actual image file from your web server, not just remove references to the image file in page code.
posted by joshrholloway at 12:25 PM on December 22, 2008

Mod note: This is a followup from anonymous.

Many thanks to all of you for your answers. I am drinking some slightly more relaxed.

Yes, we're incorporated, and have plenty of lawyers and people that won't take this kindly.

I've been researching the guy online. The guy is a notorious litigant who goes after small sites and people who make no money for damages of upwards of £2k, and gloats about it.

A lawyer is on the case, an officer of the group whose website had the image. I wrote him a long email describing the guy and warning him to be careful in response and not give the usual brushoff. He is a ferocious and magnificent lawyer of doom.

I have removed the image with extreme prejudice from all subdirectories. If there were a way to poop on it, I would.
posted by cortex (staff) at 1:30 PM on December 22, 2008

IANAL but I am a photographer and I deal with copyright on a daily basis, although in the US.

If you used the image without permission then yes, he has every legal right to sue you (and he will win, and the damages will likely be more than 1000). He doesn't have to ask you to take it down or anything like that, the moment you used it you infringed his copyright. As for him being a "notorious litigant" you have to remember that from his perspective copyright and people paying for usage (and exclusivity) is how he makes a living. He may very well be an asshole, but if you want to be a photographer and remain in business for very long unfortunately this is something you have to deal with. I don't know how it works in the UK but in order to protect your rights in the future you have to take even small and unintentional infringement very seriously.

When something like this happens with my images I usually ask for it to be taken down and inform them of the legal situation without sounding like too much of a dick and then precede from there. Most of the time they apologize and that's the end of it. You acted appropriately by removing it, that is probably all he wants and I would be surprised if it went any further. If it does offering to settle is good advice because legally you are screwed.

Just remember in the future that pretty much everything is automatically copyrighted and you have to have permission to use it. License an image for a stock agency or send someone an email first before assuming no one will care. Artists have to make a living too, and the vast majority of us would rather be doing anything else other than sending take down notices and getting all legal on people.
posted by bradbane at 4:54 PM on December 22, 2008 [2 favorites]

Mod note: another followup from anonymous

I actually used that image by accident - it was one of two candidates and when I actually made the page in question, I forgot which of the two images I had was free and which of the two was copyrighted. It sounds lame, I know, but it's true. Sadly I can't prove that it was an accident.

I do respect photographers' copyright and the only explanation I have is that I was rushed and made a mistake. The photographer in question has articles and links all over the place about how he has pursued small websites and groups with no money, groups with little knowledge of the web who would not have used the image if they understood it was copyrighted.. He often pursues for the money after the image is taken down.

I'm shattered and terrified that this will spiral out of control, into highly public litigation or a bill of thousands of pounds that I will have to pay, because I won't ruin potential years or decades of service by incurring this charge to my organisation.
posted by cortex (staff) at 5:20 PM on December 22, 2008

For what it's worth I read recently of a picture agency (UK based) that was sending out claims for payments where websites had infringed their copyrights. They routinely sent out "$ lots - pay up or we'll send the boys around" type letters. The experience of a number of groups who received these letters was that the copyrights owners willingness/ interest / ability to follow through was limited. If you paid up they were happy ... if you didn't pay but sent them a letter saying you'd stopped you never heard from them again.

A lawyer cited in the article says :

"Once we get involved generally Getty does back off. I think the main problem Getty has is proving when images came into their possession. It's clear in some of our dealings with them that they have practical problems in establishing that. It's a massive problem for them with respect to evidence."

I mention this not because the copyright owner whose rights you've infringed is the same entity (I guess) but that sending tough sounding claims for damages is step 1. Doing anything beyond that is often more than claimaints are interested in doing (for a whole raft of reasons).
posted by southof40 at 6:36 PM on December 22, 2008

I am a photographer, but I haven't had to deal with infringement like this before. People asking for my pictures for free, sure, but that's another thing... I'm also not a lawyer.

Joining in with all the other comments, the guy is well within his right to pursue legal action against you and the company. If this was for a big company or used in an advertisement or a double truck in a magazine or whatever big usage you can imagine, I'd say that 1000 pounds is far too little. In this case (and not knowing all the details), a smaller fee is probably appropriate. Here's a recent article in the Guardian about exactly this issue.

Pricing photography can be extremely difficult. I've sold the same picture for different uses for radically different amounts. $100 for one usage, $1000 for another; it's perfectly easy to imagine a situation where a photograph would be sold for $100 in one use and for $25,000 or more in another. There's no fixed value on licensing photos. In my contracts, I usually include a clause about increased fees for late payment or infringement. Late payment is a percentage increase above the fee for each day the payment is late; unauthorized usage or infringement is penalized at 3 times the usual fee for the photo's usage.

My normal fee for editorial web usage is between $50 and $100 for a small image (400px wide and smaller) if it's not on the front page of a site, dependent on the number of hits the page is expected to get. Fees for corporate or advertising usage would be higher. So, if I found an infringement, and I hadn't talked with the company before, I'd just send an invoice to the accounting department for 3 times whatever that normal fee was and follow up with some phone calls. If I had talked to the company about licensing some photos, had sent over some lo-res for mockups, or whatever, and I saw an unauthorized usage, I'd just call up my contact at the company, ask about it, and work up a new invoice for the usage. Something obviously got miscommunicated in the negotiations. If it were a small, local website or some other entity that obviously doesn't know what they're doing, I'd probably send an email and ask for a fee that is less than 3 times my normal fee for the usage but more than the normal fee, explaining my thinking on the fee, and I'd expect that I'd get paid the usual fee as if we'd talked about everything beforehand. Keep in mind, also, that fees are determined by the duration of usage. A 1 day license is much different from a 1 year license.

Whether or not the picture was taken down is of no consequence whatsoever and neither is whether or not it was used by accident or whether or not similar pictures are available free elsewhere. The picture has been used, and charging a fee for that is how I and many other people make a living.

My guess with the guy's tactic of demanding 1000 pounds is that you guys won't want to go to court and will just pay the fee he's asking for. If you go to court, you'll pay more but he'll get less, due to attorney and court fees.

If you do use free pictures for your company in the future, be very careful about model releases. The license may be free, but you if there are any people in the picture, you still do not have the legal right to use the picture for noneditorial usage unless you have a signed release from every person in the picture. The photographer won't be able to sue you, but the subjects of the photo can. If the photo was taken in a public place, the subjects cannot sue the photographer in this case, but they can still sue the company that uses the picture in a noneditorial context.
posted by msbrauer at 6:48 PM on December 22, 2008

On preview, southof40 linked to the same article. Whoops.
posted by msbrauer at 6:50 PM on December 22, 2008

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