Copyright infringement claim

[tsm106]

I run a small business, and recently posted a internet gained photo on my Blog post which is linked to my website. On the photo is marked the name of the photographer, as I mistakenly thought as long as you show the actual name of the image owner that was ok.
However, I have now received an email from Boston, USA saying I used this image without consent or a licence and I now have to pay a £5,000 fine. There has been no prior email asking me to take this image down ( which I now have ) just a huge fine to pay. Is this legitimate without a court case?

 

[fisicx]

Yes. If the people who wrote the letter are acting on behalf of the copyright owner.

All you can really do now is negotiate.

@paulears will no doubt be able to expand on the legalities as he has been the recipient of copyright theft.

 

[paulears]

I hate rights management - I'm getting more grief than ever. Sony BMG tried to claim one of my recordings recently - but I won that one!

The important thing here is that they cannot call it a fine. They can ask for £5000 compensation for unapproved use of their intellectual rights, or the unapproved use of the intellectual rights of the owner, with them as agent. The actual amount would be determined by the intellectual rights court in the UK. They are very aware of how much releases cost, so as you used it without permission, they're on a winner. You, on the other hand can try to mitigate and with people like Getty Images, they tend to ask for a big sum, but be prepared to negotiate and accept less. If you are beligerant, they just slap it straight into the courts hands. They don't need to ask you to take it down - they're happy you use it, but you have to pay. The dirty deed was done - you just need to say how sorry you are, how you have very little money after covid and the business is not doing well, so you simply don't have that kind of money. How about £500? or £300? Offer less than you can afford and barter.

The name of the photographer is their 'claim' on the image. If you had cropped it out, the court would have been then certain you deliberately tried to avoid the rights issue - so having it visible is good from the mitigation point for you - clearly a misunderstanding, and hopefully less to pay. You need to be keen to sort it and willing to pay - but just contest the amount. I hope you can get a good settlement. They're not asking crazy figures, but hundreds are probably more appropriate than thousands - five grand is just their starting point. They will settle for much lower unless you simply dig your heels in.

 

[Fagin2021]

I disagree with much of what has been written above.

The first thing to understand is that whoever sent you the email (you don’t say) is simply trying it on in the hope that the threat of action will frightened you into paying them a large sum. They described it as a ‘fine’ but only a court can issue a fine. They mean a fee or compensation.

You may indeed have infringed someone’s copyright but before you even begin to negotiate you should ask the email sender...

1. What right they have to demand payment ? Do they own the copyright (assignees) ? Or are they acting as an agent on behalf of the copyright holder? If the latter, in what capacity ? Note that only the owner, or his exclusive licensee can bring proceedings in the courts against an infringement.

2. Can they show that the work was not published with a creative commons license ?

3. How did they arrive at a figure of £5,000 ? Point out that in the UK, the Copyright, Designs, and Patent Act of 1988 calculates compensation for copyright infringement based on two criteria:

• the value of the damage done to the copyright owner. This is called an inquiry as to damages
• the profit you have made by infringing copyright. This is called an account of profit.

If you haven’t profited by using the photograph, say so.

4. How much does the copyright holder normally charge to license that particular photograph ? Many photographs/images are licensed for little more than £10-£20. This is relevant to the ‘damage’ done to the copyright holder.

In your position I would (and have)...

1. Apologise for the accidental infringement and say you have removed it from the blog

2. Ask the questions above

3. Offer a nominal sum (say £50) in compensation

They will undoubtedly bluster and threaten but tie them up in correspondence and questions and I very much doubt they will take it further.

 

[Frank the Insurance guy]

Hi @tsm106 .

I see you are an interior designer - is that right?

Do you have a Professional Indemnity Insurance policy? If you do, contact your insurer NOW as most of these policies will cover unintentional breach of someone else's copyright - as such they will be in a good position to support you and pay all the defence costs and any damages.

 

[tsm106]

I disagree with much of what has been written above.

The first thing to understand is that whoever sent you the email (you don’t say) is simply trying it on in the hope that the threat of action will frightened you into paying them a large sum. They described it as a ‘fine’ but only a court can issue a fine. They mean a fee or compensation.

You may indeed have infringed someone’s copyright but before you even begin to negotiate you should ask the email sender...

1. What right they have to demand payment ? Do they own the copyright (assignees) ? Or are they acting as an agent on behalf of the copyright holder? If the latter, in what capacity ? Note that only the owner, or his exclusive licensee can bring proceedings in the courts against an infringement.

2. Can they show that the work was not published with a creative commons license ?

3. How did they arrive at a figure of £5,000 ? Point out that in the UK, the Copyright, Designs, and Patent Act of 1988 calculates compensation for copyright infringement based on two criteria:

• the value of the damage done to the copyright owner. This is called an inquiry as to damages
• the profit you have made by infringing copyright. This is called an account of profit.

If you haven’t profited by using the photograph, say so.

4. How much does the copyright holder normally charge to license that particular photograph ? Many photographs/images are licensed for little more than £10-£20. This is relevant to the ‘damage’ done to the copyright holder.

In your position I would (and have)...

1. Apologise for the accidental infringement and say you have removed it from the blog

2. Ask the questions above

3. Offer a nominal sum (say £50) in compensation

They will undoubtedly bluster and threaten but tie them up in correspondence and questions and I very much doubt they will take it further.

Many thanks for your reply.
I was up to 3am this morning as couldn’t sleep over the email, and this is what I have eatablished.
There has been a huge rise in “ copyright trolls “ in the US, this such company is one of them. They use AI to gather their copyright information and they then hit you with it. The photographer in question ( who they say are working on his behalf ) did bring out some quite famous Dementia images. So I am worried, that’s why the cost is so high. They sent a barely visible screenshot of this photo which was used and seen in situ on my Blog. They are trying to get me to click on a number of links in their email to view the case documentation and maybe see the breakdown of costs too? Which I will not click. I don’t want to respond to them just yet, as I also read that this company send loads of these AI claims out, and just want big money fast. So the more fearful, will pay their demands immediately, and others are not worth pursuing in their eyes. Not to say I am not fearful, but am gathering as much legal information as I can before any ( if any ) contact. After reading up on copyright, I do now fully appreciate why owners need to protect and charge for their work, however these copyright trolls are giving the industry a bad name.

 

[paulears]

You need to do a little research. Rights is a very big business now - and like the 'have you had an accident' companies, it's common for people who as you even mention, don't have the rights on the books to manage, to seek out people willing to settle for the large amounts, then tell the real rights owner they have somebody willing to settle for five grand and they just want 10%. Distasteful but nothing wrong with that. There are some essential things you have missed in your casual research.

The intellectual court really DO understand how much an image is worth, and a little research of the typical prices of rights clearance for web sites brings you to much higher figures. The court also accept the fact that many people do this accidentally - and didn't know. However - the original photographer included his contact details - enough to make even Mr Average know the picture belongs to somebody. The clear and searchable party in this kind of thing is Getty Images, who have turned rights management into a viable business model. They go in high and settle low. If the offer is derisory, or they get ignored, they slap in the court paperwork and wait for the court to decide. History shows the highest figures are when a defendant deliberately removed identification - like photoshopping the copyright info. In this case it didn't;t happen, but he cannot plead he was unaware of copyright - so the £50 might fly, but maybe not.

Privately I have suggested to the OP that as he know the photographers details, he should talk to them first - because they may not be aware the rights hunters are on their case. So if the owner is happy with £50, then all is well and the chaser can be safely ignored.

However - you must accept that the value is not easy to fix. Accidentally publishing a Banksy would not be £50! If the photographer has a number of successfully licensed images, then the court will see that as his 'price list'. Somebody who regularly licences work for £1000, is NOT going to settle for £50.

I totally agree you need to say sorry for the accidental use and start a dialogue - with the owner, not an agent, or prospective agent, but it is nowhere near certain they will give it away, and they do not have to. When you use images, they can be vary variable in cost, but it is their pricing that matters. The court will consider how reasonable and representative this price is. I can tell you that if you want quality images from a professional photographer then your £10-15 is way out. Music, images and even sounds are viable business opportunities now. Have you seen how much wedding photographers charge. Their market stands it, and a history of pricing is what courts love as it shows prices have not been plucked out of thin air. I paid over £100 for rights to a photo for a CD cover. It did not cover on-line delivery so that was another payment. This is normal.

Do NOT rely on them liking your measly offer, and if you insult them, it takes very little effort to put in court papers and say stuff them! A judge knows exactly how much rights are worth, and look at the recent copyright infringement payouts.

Talking is the best idea - but be careful not to insult them. Probably best to let them suggest a price and then go wow - and barter a little. You need the mind set that you are sorry, you know you accidentally messed up - but the photographer has ALL the cards.

I've begun the process myself this week with a cancelled client. They needed some music for a project. They got the rough version of the music for them to practice with, but then vanished. Thanks to Facebook I've discovered they are going around the pubs using my rough music as a backing track. The recording of her voice never happened and I was careful enough to make sure I told her that as the project was cancelled she could not use the track in any form. She replied saying she hated it anyway and would never use it. I'm going after the cost of the cancelled booking and a rights payment. She cannot argue she didn't know she shouldn't have used it. I am not going to settle this one for £50! If she stops using it, I'd probably be happy with £250, because frankly, it's not even the finished thing. If she carries on, I'm thinking the court won't like it at all.

I'm firmly on both sides - I don't like being ripped off, but I don't like ripping others off, but rights = money, and since covid, this kind of thing has been abused. Stealing through the internet is so common, it's now a business opportunity.

 

[Fagin2021]

However - you must accept that the value is not easy to fix. Accidentally publishing a Banksy would not be £50! If the photographer has a number of successfully licensed images, then the court will see that as his 'price list'. Somebody who regularly licences work for £1000, is NOT going to settle for £50.

My point is that value might be easy to fix. If you reverse-image search the image in question, then follow the trail on Google Images and find someone like Adobe or Shutterstock who license it, you can establish an exact value. That should form the basis for any settlement or court action. It might be £50, it might be £1,000. Until you know, you have no basis for negotiation.

I totally agree you need to say sorry for the accidental use and start a dialogue - with the owner, not an agent, or prospective agent, but it is nowhere near certain they will give it away, and they do not have to. When you use images, they can be vary variable in cost, but it is their pricing that matters. The court will consider how reasonable and representative this price is. I can tell you that if you want quality images from a professional photographer then your £10-15 is way out.

As above. Also, if you look at licence prices for professional photographs on Shutterstock (owned by Getty), Adobe and others, the vast majority do fall into the £10-£15 band. Obviously, if it's a Banksy they don't. The key is to discover what the usual legitimate license fee is.

Talking is the best idea - but be careful not to insult them. Probably best to let them suggest a price and then go wow - and barter a little. You need the mind set that you are sorry, you know you accidentally messed up - but the photographer has ALL the cards.

IMO with this approach you'll end up paying far more than you need. You need the mindset that you are sorry, you know you accidentally messed up - but you also know the law and you're not going to be taken to the cleaners by a copyright troll.

 

[paulears]

We will have to disagree. I'm in both camps - I pay other people and other people pay me, but there is a HUGE difference between licencing 3000 via Shutterstock or similar, and a photographer putting images on the net individually. You are thinking like a disgruntled buyer - not as a disgruntled owner who is legitimately trying to keep control of their property?

You say "you'll end up paying far more than you need." You didn't NEED to be in the position. The item in question was used without permission, You need to pay what the owner considers is it's worth - and - using it without permission then being intent on getting the best deal is morally and ethically wrong. Every single time we discuss rights issues, it comes down to this, and we are not talking about a pleasant ordinary sale, we're talking about getting caught and then still trying to get away with it. The OP must do what he is comfy with.

Here is one example of Getty Images' court activity.

JA Coles, of Manchester and London, used a photograph entitled 'Mother with daughter (6-8) looking at each other and smiling' on its website. Getty said that it wrote to the company seeking payment for the use of the photograph. The photograph was removed from the site but JA Coles did not reply to Getty Images' letter or pay the fee requested in int.

That case has now been settled and JA Coles has admitted that it infringed copyright by using the image and has agreed to pay damages

The company has agreed to pay £1,953.31 in damages and interest over the use of the picture, plus Getty Images' legal costs..

I suspect most claims are less than this - but the Getty model is legal, and works. The system has been streamlined since this landmark case, but what has not changed is the law. It's actually easier to do now, and people are using the system. The example I used of the music - Recording it, two abandoned sessions - I think has a value, and she is using it. As a buy out, it would have been around £400 for that work - but my usual agreement is to do an even split on the publishing revenues - so who knows what that would have been worth to both parties? So far, I've made $29 from streams - I put it on Spotify and itunes etc - and that too gives me a little protection, because if she at any point puts a video up on youtube using the music, I get notified and can take any money youtube collect. I won't be rich, but I can make life difficult for her - I can even request youtube silence the video rather than money.

 

[NickGrogan]

Calling them copyright trolls probably isn't the best start. They are enforcing the legal rights of their clients.

I presume that if I stole your designs and profited from them that you'd be a bit upset?

 

[paulears]

It always happens. Shoplifting and stealing cars are hanging offences and pinching pics and music fair game. I have got used to the one-sided attitudes. I do feel sorry for the OP - with hindsight it's easy to mess up like this, but the photographer's name on the image - something you don't want in advertising really should have rung an alarm bell. One of my tiny payments came from a porn movie made in California. They actually followed the rules exactly - and I got a small payment. That's fair, and fun to have on my musical CV!

 

[tsm106]

You need to do a little research. Rights is a very big business now - and like the 'have you had an accident' companies, it's common for people who as you even mention, don't have the rights on the books to manage, to seek out people willing to settle for the large amounts, then tell the real rights owner they have somebody willing to settle for five grand and they just want 10%. Distasteful but nothing wrong with that. There are some essential things you have missed in your casual research.

The intellectual court really DO understand how much an image is worth, and a little research of the typical prices of rights clearance for web sites brings you to much higher figures. The court also accept the fact that many people do this accidentally - and didn't know. However - the original photographer included his contact details - enough to make even Mr Average know the picture belongs to somebody. The clear and searchable party in this kind of thing is Getty Images, who have turned rights management into a viable business model. They go in high and settle low. If the offer is derisory, or they get ignored, they slap in the court paperwork and wait for the court to decide. History shows the highest figures are when a defendant deliberately removed identification - like photoshopping the copyright info. In this case it didn't;t happen, but he cannot plead he was unaware of copyright - so the £50 might fly, but maybe not.

Privately I have suggested to the OP that as he know the photographers details, he should talk to them first - because they may not be aware the rights hunters are on their case. So if the owner is happy with £50, then all is well and the chaser can be safely ignored.

However - you must accept that the value is not easy to fix. Accidentally publishing a Banksy would not be £50! If the photographer has a number of successfully licensed images, then the court will see that as his 'price list'. Somebody who regularly licences work for £1000, is NOT going to settle for £50.

I totally agree you need to say sorry for the accidental use and start a dialogue - with the owner, not an agent, or prospective agent, but it is nowhere near certain they will give it away, and they do not have to. When you use images, they can be vary variable in cost, but it is their pricing that matters. The court will consider how reasonable and representative this price is. I can tell you that if you want quality images from a professional photographer then your £10-15 is way out. Music, images and even sounds are viable business opportunities now. Have you seen how much wedding photographers charge. Their market stands it, and a history of pricing is what courts love as it shows prices have not been plucked out of thin air. I paid over £100 for rights to a photo for a CD cover. It did not cover on-line delivery so that was another payment. This is normal.

Do NOT rely on them liking your measly offer, and if you insult them, it takes very little effort to put in court papers and say stuff them! A judge knows exactly how much rights are worth, and look at the recent copyright infringement payouts.

Talking is the best idea - but be careful not to insult them. Probably best to let them suggest a price and then go wow - and barter a little. You need the mind set that you are sorry, you know you accidentally messed up - but the photographer has ALL the cards.

I've begun the process myself this week with a cancelled client. They needed some music for a project. They got the rough version of the music for them to practice with, but then vanished. Thanks to Facebook I've discovered they are going around the pubs using my rough music as a backing track. The recording of her voice never happened and I was careful enough to make sure I told her that as the project was cancelled she could not use the track in any form. She replied saying she hated it anyway and would never use it. I'm going after the cost of the cancelled booking and a rights payment. She cannot argue she didn't know she shouldn't have used it. I am not going to settle this one for £50! If she stops using it, I'd probably be happy with £250, because frankly, it's not even the finished thing. If she carries on, I'm thinking the court won't like it at all.

I'm firmly on both sides - I don't like being ripped off, but I don't like ripping others off, but rights = money, and since covid, this kind of thing has been abused. Stealing through the internet is so common, it's now a business opportunity.

Thanks agin for your valuable input. This really is a complicated beast, and I do think this has been made more complicated by the company in question being a copyright troll. I have since done my research on the American photographer in question, and it seems he is making more money by going in and out of court suing people, so sadly I don’t think contacting him directly would work.

Calling them copyright trolls probably isn't the best start. They are enforcing the legal rights of their clients.

I presume that if I stole your designs and profited from them that you'd be a bit upset?

They are Copyright trolls. This is not a term I plucked out of the sky, I Googled the company in question and this is the term that was repeated over and over for companies that operate like this.
I have made a mistake, I am sorry, I am willing to pay a fair price for the image ( which has since been removed ) I just don’t think £5,000 is anywhere near what they should be asking for. The photographer will barely get a fraction of that anyway.
Plus my use of his photo was purely educational, and I did not use it to profit in any way.

 

[tsm106]

It always happens. Shoplifting and stealing cars are hanging offences and pinching pics and music fair game. I have got used to the one-sided attitudes. I do feel sorry for the OP - with hindsight it's easy to mess up like this, but the photographer's name on the image - something you don't want in advertising really should have rung an alarm bell. One of my tiny payments came from a porn movie made in California. They actually followed the rules exactly - and I got a small payment. That's fair, and fun to have on my musical CV!

It’s certainly been an education for me. ironically I paid for use of all Getty images on my website, but underestimated the images I used on my Blog. Which barely has any viewers, I just used it as an information site.
Clearly, whenever you use someone’s images, you need to pay. I think by naming the photographer clouded my judgement, that won’t ever happen again.
Wrist well and truly slapped!

 

[tsm106]

I disagree with much of what has been written above.

The first thing to understand is that whoever sent you the email (you don’t say) is simply trying it on in the hope that the threat of action will frightened you into paying them a large sum. They described it as a ‘fine’ but only a court can issue a fine. They mean a fee or compensation.

You may indeed have infringed someone’s copyright but before you even begin to negotiate you should ask the email sender...

1. What right they have to demand payment ? Do they own the copyright (assignees) ? Or are they acting as an agent on behalf of the copyright holder? If the latter, in what capacity ? Note that only the owner, or his exclusive licensee can bring proceedings in the courts against an infringement.

2. Can they show that the work was not published with a creative commons license ?

3. How did they arrive at a figure of £5,000 ? Point out that in the UK, the Copyright, Designs, and Patent Act of 1988 calculates compensation for copyright infringement based on two criteria:

• the value of the damage done to the copyright owner. This is called an inquiry as to damages
• the profit you have made by infringing copyright. This is called an account of profit.

If you haven’t profited by using the photograph, say so.

4. How much does the copyright holder normally charge to license that particular photograph ? Many photographs/images are licensed for little more than £10-£20. This is relevant to the ‘damage’ done to the copyright holder.

In your position I would (and have)...

1. Apologise for the accidental infringement and say you have removed it from the blog

2. Ask the questions above

3. Offer a nominal sum (say £50) in compensation

They will undoubtedly bluster and threaten but tie them up in correspondence and questions and I very much doubt they will take it further.

The email senders were Image Rights International.

 

[paulears]

With respect - this is NOT your call. What you are prepared to do is with the agreement of the photographer. He is legally protected in virtually every country and clearly from what you say makes money from selling his image rights and taking action. This is called business. The person who forgot to pay him is in no position whatsoever to think they call the shots. Clearly this person knows the system and is happy with whatever commission the agency takes. Agents take money to generate it for you. Perfectly normal and that is what agents are supposed to do. Liking it is optional. Publishing is a choice you make. Information pages do not have any special exemptions from payment. Sadly, it looks like your error will cost you. They do not expect to get what they asked for, but it's now up to your bartering skills isn't it. If the guy is banking on £500, then the court fees are kind of incidental - he's going to win. all you can do is mitigate your loss.

On the term troll? Many people call PRS trolls, and people like Sony, EMI and Disney - why is protecting somebodies rights somehow bad? In fact - I'm a member of PRS and PPL - so that is rights in the composition and the recording rights, and I get more money from Spotify. My view is they are VERY lax at collection and should be tougher. Over the past few days people have complained about ABBA cashing in and making a fortune. The facts are that CD sales have declined to a point where many artistes generate hardly anything from traditional sales - meaning all the people you hear on Radio 2 have had a big cut in their income - Noddy Holder will feel it this christmas. So the only income now is streaming income. At around $0.002 per stream. A million streams of the Abba new songs will earn them £2000. Their record company will take half that, so a quick divvy up gives them £250 each for a million streams. How many streams to earn proper money? They'll make on real CD sales and radio airplay - which is a bit better. They have reach companies and agents - are they trolls too?

 

[JustGettingOnWithIt]

They are Copyright trolls.

OK, I can see that you have some emotion here. First thing is stop being upset. It is business to them and they don't care if you are upset, angry, annoyed, flinging pots and pans round the house, not sleeping or whatever. They will deal with this 50 times a day and it is water off a ducks back to them.

If you want them to negotiate the price down, don't call them 'trolls' especially not to their face. It is a really good way for them to stop talking and go the expensive route. You want a negotiation on a settlement so you are effectively wanting something from them. Insults won't persuade a stranger to change their mind. If you insulted me, the price would be going up not down.

I deal with a lot of copyright issues in my line of work and I stopped taking the theft of my company IP personally years ago. I have a set route to sort things out and stick to it. It does rattle those that steal from me though but I sleep soundly.

I hope that you can get things settled quickly so you can move on as it seems to be distracting you from other things.

 

[tsm106]

ImageRights services, are primarily focused on photography and 2-D images. The firm targets as clients photo agencies and individual photographers. He added that the company has agreements with about 40 photo agencies to track the works of their photographers, in addition to helping 4,000 to 5,000 individual photographers who signed on to the service online. Fees for individual photographers range from about $350–$588 a year, based on the number of images submitted for protection. Agencies and large companies are able to negotiate with the company for a different range of fees.

ImageRights offers three categories of service: discovery (or tracking images), recovery (legal claims against infringers), and automated copyright registration, a service that it claims speeds up the process of registering images with the U.S. Copyright Office for individual clients. Once clients sign on to ImageRights, Naylor explained, they upload photos or other images to the firm’s image search engine, where they are each assigned a unique identifier. The image search then uses proprietary AI-driven webcrawling technology to track these images wherever they appear online. The subsequent search results (including the domains where the images are found) are analyzed, to determine how the images are being used.

When infringement or misappropriation of copyrighted material is found, ImageRights compliance teams handle claims in the U.S. or refer international cases to a network of law firms in Europe and Australia—firms it partners with to pursue compensation or reach a settlement in the jurisdictions where the misuse

I’ll probably get fined for copy and pasting this now!

 

[fisicx]

In other words, they are acting on behalf of their clients to protect their IP.

All you can do now is negotiate as Paul suggested. They are not trolls, they are a legitimate business.

 

[tsm106]

OK, I can see that you have some emotion here. First thing is stop being upset. It is business to them and they don't care if you are upset, angry, annoyed, flinging pots and pans round the house, not sleeping or whatever. They will deal with this 50 times a day and it is water off a ducks back to them.

If you want them to negotiate the price down, don't call them 'trolls' especially not to their face. It is a really good way for them to stop talking and go the expensive route. You want a negotiation on a settlement so you are effectively wanting something from them. Insults won't persuade a stranger to change their mind. If you insulted me, the price would be going up not down.

I deal with a lot of copyright issues in my line of work and I stopped taking the theft of my company IP personally years ago. I have a set route to sort things out and stick to it. It does rattle those that steal from me though but I sleep soundly.

I hope that you can get things settled quickly so you can move on as it seems to be distracting you from other things.

I certainly won’t be calling them trolls to their face! I will be polite, apologetic and very remorseful when dealing with them.
I understand this is a business, but I don’t appreciate the scare tactics involved in chasing money. If they had contacted me initially and said I had used their image without permission, pay up and take it down, I would have done so. Most people would after realising what they had done was wrong. It’s the way they bulldoze in and demand high payments or else. Surely, they should ask for a reasonable amount first, and if that gets ignored, then start pilling on the extras. Yes, it a great business model for getting big bucks, but there are real people on the end of their threats who ( lets face it after the year we have just had ) could be pushed over the edge with their aggressive approach.
When we make mistakes, we hold our hand up and pay what is owed. Anything else is pure greed and bullying.
Of course I have been owed money, and had to make threats of recovery and court etc, But I would always try to come to a financial agreement with the client before considering going down that route.

 

[paulears]

I don't know your business, but let's say you sell 'widgets' - is it customers who set the price? Is it your customers who set your pricing system? Maybe you offer quantity discounts to those who buy multiples? Maybe you do free on-site surveys? Maybe a customer you've chatted with could be a nice one to keep, so you offer some freebies. How would you treat one who took a box off the back of your van, thinking they were clearly free, and then when you sent him the bill for the full price, demanded the discount?

 

[Fagin2021]

We will have to disagree. I'm in both camps - I pay other people and other people pay me, but there is a HUGE difference between licencing 3000 via Shutterstock or similar, and a photographer putting images on the net individually. You are thinking like a disgruntled buyer - not as a disgruntled owner who is legitimately trying to keep control of their property?

You say "you'll end up paying far more than you need." You didn't NEED to be in the position. The item in question was used without permission, You need to pay what the owner considers is it's worth - and - using it without permission then being intent on getting the best deal is morally and ethically wrong. Every single time we discuss rights issues, it comes down to this, and we are not talking about a pleasant ordinary sale, we're talking about getting caught and then still trying to get away with it. The OP must do what he is comfy with.

Here is one example of Getty Images' court activity.

I suspect most claims are less than this - but the Getty model is legal, and works. The system has been streamlined since this landmark case, but what has not changed is the law. It's actually easier to do now, and people are using the system. The example I used of the music - Recording it, two abandoned sessions - I think has a value, and she is using it. As a buy out, it would have been around £400 for that work - but my usual agreement is to do an even split on the publishing revenues - so who knows what that would have been worth to both parties? So far, I've made $29 from streams - I put it on Spotify and itunes etc - and that too gives me a little protection, because if she at any point puts a video up on youtube using the music, I get notified and can take any money youtube collect. I won't be rich, but I can make life difficult for her - I can even request youtube silence the video rather than money.

I have sympathy with your general argument but the key phrase is ‘pay what the owner thinks it is worth’

What the owner thinks it is worth is likely different to what the market, or a court, thinks it is worth. If the owner (or his agent) has already offered to license the photograph at a certain price – that price (or very close) is what it is worth and it’d surely be difficult for a court to decide it was, in fact, worth 10 times or 100 times or 1000 times that.

If there is no ‘market price’ then (as you say) it will depend on the circumstances. If I take a picture of a lion at a zoo, it’ll have a different value to one I’ve taken after camping out in the Serengeti for a year. If the pictures are not exceptional, and similar to stock photos, the stock photo price will act as a guide to what the actual photo is worth.

Compensation for copyright infringement will be based on:

1. Loss of income to the license holder (eg. the licensing fee)
2. Gain of profit to the infringer (if any)
3. Conduct of the parties (eg. deliberate and deceptive infringement)

I can only repeat my previous view that the ‘agent’ should be challenged to provide justification for the quoted ‘fine’ before any negotiation takes place.

 

[JustGettingOnWithIt]

I certainly won’t be calling them trolls to their face!

OK, my original advice still stands. Please try to calm down a little, the emotion is one sided and won't get you anywhere. You are thrashing away on your keyboard on a public forum using words like "agressive" and "bullying". You are not anonymous on here as you have filled in your profile information. It is the way business is conducted in some lines of work, you have been pulled into that.

 

[DavidWH]

Having been on the other side of this, claiming for infringement. It doesn't matter what you, the claimant, or defendant thinks the damages should be.

IF it goes as far as court, it will boil down to what the judge thinks, and who can put forward the most convincing argument!

I was awarded over £1600 for a photo of a job we produced that I took on my phone. Nothing startling, or exciting. It was the judge who boosted our claim as the defendant was a complete tool.

 

[fisicx]

You are not anonymous on here as you have filled in your profile information.

Which means the claimant has probably seen this thread and may use it in evidence.

 

[paulears]

There's also history. If the photographer does this a lot, then other courts have set a range of 'values' - if he has, like David above got £1600 for one image, then the court are likely to use this as a gauge of what is reasonable. If he has a history of sales at the £50 level, he'll be stuck at that. The judge determines what is reasonable. The judge is also realistic - he or she knows full well that a Judges reasonable lunch receipt is not the same as mine - everything has a context. Legal decisions are never random - they're based on history in cases like these. The person in control cannot be challenged - you could do that in court, but if the plumber asks for a grand and you think £250 is fair, one of you is not the expert!

 

[tsm106]

There's also history. If the photographer does this a lot, then other courts have set a range of 'values' - if he has, like David above got £1600 for one image, then the court are likely to use this as a gauge of what is reasonable. If he has a history of sales at the £50 level, he'll be stuck at that. The judge determines what is reasonable. The judge is also realistic - he or she knows full well that a Judges reasonable lunch receipt is not the same as mine - everything has a context. Legal decisions are never random - they're based on history in cases like these. The person in control cannot be challenged - you could do that in court, but if the plumber asks for a grand and you think £250 is fair, one of you is not the expert!

I will get legal advice on this, plus try to find out how much the image sells for, then this gives me a much better idea on how to proceed.
Thanks for your help.

 

[Lucan Unlordly]

Sorry for thread hijack but this question seems relevant posted here....

About 15 years ago I found a page of black and white images within the pages of a US University library, emailed them and asked if it was ok to use a couple. They were surprised I'd asked as their was no notification of copyright, no fees, just a page or two of photos on a very technical site. I used one photo for several years.
Now it seems a Getty style set up has recently taken over the rights for these images. Would my longstanding arrangement trump theirs? Could retrospective payments be applied for the time before they took control?

 

[NickGrogan]

I used to use a lot of content from one of the big 6 energy suppliers on one my sites, I had an email confirming their agreement and everything was fine for years.

They then hired a new agency to managed their website who contacted us as we outranked the supplier using their own content. They asked who said we could use it, so I forwarded the email to them and asked them to prove that they worked for the supplier.

A couple of weeks later I got an email from the supplier asking us to take down the content and confirm the new agency had authority.

Took everything done, no problem for anyone.

There were probably a few hundred pictures involved.

Don't know if that helps?

 

[The Byre]

If they gave you unlimited usage and you can prove this - yes. To be on the safe side, put "Use of image licensed by The Wysuckie College for the Totally Dumb." in small letters underneath.

Everything depends on the stated terms of the initial agreement.

 

[paulears]

The wording is very important - rights clearances often use standard terms in perpetuity, in any territory, in any media is the tightest. ITV contracts often contain this phrase for contributors. They pay you say £500, you sign and it's gone for ever. Other modify these with time limits or geographical restrictions or only protect if on a certain format - like a DVD or CD, before the days of streaming. If the permission was everywhere, forever - then you have the right. They'd presumably have to get a court to alter this if the conditions were shaky.

 

[designer_]

Today I received an email from PA Media Group stating I'm infringing on copyright and they want £450 even if I delete the image. It's an image from the Euros 2024 I've used on a blog post. I'm not profiting from this image. My website is a design studio, so I'm worried they see my company as a quick money grab assuming I'm making a ton of money since I offer design services. Reality is, I recently quit my job to pursue my business full time and I'm living on savings - so this costly amount for an image will be a huge hit on me.

I've done some image searches, this same image has been posted all over social media, articles and personal blog posts (I doubt the majority of these have paid to license either), even a cropped version of the image on the official Euros twitter account. I understand that technically you can take someone's work, edit it, then it's no longer a copyright issue as it's not the original? The image is owned by Getty and can be purchased for £39 for 3 months use on a website, or to own it £150 for small and £375 for large - so obviously this Adrian bot is scamming me.

I've seen some people have got the settlement figure down to £50, others have ignored it even when receiving threats and nothing has come. The email was sent to my company info @ email address, but I don't use this and my name @ address is what's connected and used, so I'm guessing they tried a generic business email, such as info @, as the off chance. Unfortunately I did respond asking how much to settle vs how much to buy (before logging into the case and seeing it's £450), but the response includes a fake name pretending to be an assistant, not my name.

Need some advice on how to handle this please.

 

[paulears]

You have to remember that it is a real thing. Those sums you quote are not to own it, simply use it - think of it as a hire. You use it, but it is not yours.

The fact other people also used the image without permission is irrelevant. You also misunderstand the idea that if you edit it, all is good. Editing can actually raise the amount you have to pay if it goes to court, because it often signifies you knew it was not your image, and cropping or attempting do disguise the origin is treated quite harshly by the court. Doing it in ignorance is one thing - knowing you were doing wrong is worse.

Not using it for profit is not a defence either - and if your website is a design studio, then you should know about copyright, because presumably, what you produce you wish to be protected?

The only advice must be negotiate the best deal you can and settle. Getty's business model may be distasteful, but it's very much a solid one. Most of my copyright work now is based around music, and doing it properly - and for the first time in nearly 50 years, I am getting regular payments come in. The system actually works. One of my recordings was used on a cruise ship in the Bahamas in March 2022. Somebody reported its use, and eventually I got it. Getty do images on a huge scale.

Remember you cannot buy the image, only permission to use it.

With my music, I could sell it, handing over ownership? That would be stupid, I licence it for a set period, in a set location. For Video work, the contract for a nearest thing to a buyout would contain these terms "In perpetuity, in any territory, on any media" - but that still allows me to use it elsewhere.

Pay up - the price will only go up.