Help! Might be sued for copyright theft.

[True Believer]

Hello everyone. I'm new here. A fine fellow over at Gallifrey Base pointed me this way, for I have a problem, and he thought some of the good people here might be able to help.

 

I run a blog which is a just-for-fun, non-profit thing. I ramble on and say things that may or may not be amusing. In among the writing I include the odd picture, gleaned from google image searches to reflect the subject matter.

 

A few days ago a photgrapher got in touch. I had inadvertantly used one of his images, and he was displeased. Fair enough, I thought, should have asked. I apologised and instantly took the image down.

 

Not good enough, apparently. He wanted paying for my use of the image. I suggested that this was unnecessary - I make no money from the blog, and he was uncredited on the page I got the image from. He would not budge on the issue.

 

I had a look on a site which hosts his images, which gives prices for the use of his images. The one I had used would cost about £38. I offered to pay £50, to cover this and make some kind of apology.

 

He wants £350.

 

I've asked why this is the case, but he has not been forthcoming, and is threatening legal action. I'm not sure what to do. Part of me thinks, fair enough, I should have tried to get in touch with him, and copyright is essentially a good thing that protects artists, so I should just pay up and chalk it up to experience.

 

Another part of me think that, once I've apologised, taken the image down and offered to pay him the standard amount, he should be satisfied. It looks a lot like he's trying to wring as much out of this as he can.

 

I should say that I did not copy and paste the image. Rather, I hotlinked from within the HTML of the blog.

 

As things stand, he has given me seven days to agree to pay the £350. The last communication was from me, asking him to justify the large fee. He has not yet done so.

 

Any help or advice gratefully accepted.

 

Thanks in advance

 

TB

[CrappoMan]

I'd tell him to get lost. You weren't hosting the image, you were hotlinking to another source.

 

This means that you have no control over the content of the image, the source you were hotlinking to could have changed the image from a public domain image to 'his' image, and could change the image content at any time without your knowledge.

[nks22]

I imagine it was a copyright offence but that any court would feel you'd acted reasonably in immediately taking it down and offering a fair payment, especially since he's in the business of allowing people to buy his images. Just my opinion, though.

[Bang!]

You offered money so he sees you as a soft touch, and someone who scares,

 

Even in cases where links were to pirate downloads there has yet to be a payout as far as I know.

 

How do you know its his picture?

 

Suggest he should pay you for the publicity you gave him.

 

If adding a link creates an endebtedness to the destination, then google must owe a fortune.

 

Is he chasing google too for linking to him?

[True Believer]

Thanks guys.

 

The pic is definitely his - I went and had a search. I also discovered that the place I got it from was The Daily Mail, who were using it in an article without crediting him. I suggested he go after them insted. He was most outraged at this, telling me it was none of my business.

[unclebulgaria67]

Ignore him. It is a total waste of time. The cost of taking any legal action against you, would make it a complete waste of time. Your defence would be that the image was freely available online and if they did not want to shared, then they should have configured the image, so it could not be shared. The have placed the image online, so that it could be shared. It was a way of publicising their work and was done for the purpose of obtaining further work. If they had failed to apply relevant identifiers to show it was their work, then that is their mistake.

 

Suggest that you don't get into any further communication regarding this. If you ignore, he will go away.

 

If this ever happens again, just take down the items that have been complained about straightaway and leave no comment about why it was taken down. i.e just leave a note that the picture is no longer available.

[True Believer]

Ignore him. It is a total waste of time. The cost of taking any legal action against you, would make it a complete waste of time. Your defence would be that the image was freely available online and if they did not want to shared, then they should have configured the image, so it could not be shared. The have placed the image online, so that it could be shared. It was a way of publicising their work and was done for the purpose of obtaining further work. If they had failed to apply relevant identifiers to show it was their work, then that is their mistake.

 

Suggest that you don't get into any further communication regarding this. If you ignore, he will go away.

 

If this ever happens again, just take down the items that have been complained about straightaway and leave no comment about why it was taken down. i.e just leave a note that the picture is no longer available.

 

Thanks. That's reassuring.The image on his site is watermarked, and has his data in the metatext. The version I got had been orphaned by The Mail. My plan is to ignore him, yes. Saturday is the end of his 'agree to pay me in 7 days or else I go to court' period. I'm waiting to see what he does when i don't agree.In retrospect, your advice about not responding and just taking it down is excellent. We live and learn.TB

[unclebulgaria67]

If you look at various online newspapers, they all use videos and pictures that have been posted online. When they receive a complaint, they just take them down. Sometimes they add a note, that they have removed the link following contact by the copyright holder.

 

What you never do, is get into any communication with people who just threaten legal action in the way that they have. It is just intimidation, to try to make you admit your liability, in the hope that they get a sum of money out of you. It is a bit like the ACS Law case, where speculative invoices were issued. There are some cynics who suggest that people add images and videos online, for the specific intention of invoicing people who have used or shared their material at some future date.

[nks22]

The Mail has form on this:

 

The Daily Mail has been, for the fifth time in less than a year, accused of using a photographer's images without authorisation, BJP has learnt:

 

http://www.bjp-online.com/british-journal-of-photography/news/1938870/photographer-accuses-daily-mail-copyright-infringement

[assisted blonde]

Technically there has been an infringement of copyright (Copyright, Designs and Patents Act 1988) if material is used in public then a fee is due to the holder of that copyright, and permission should be granted before the use of the material whether it is a photo/music etc.

 

Having said that yes an offence has been commited but it is unlikly that the photographer will take the OP to Court.

 

The use of copyright material in public makes no distinction as to whether the use for charitable or commercial or if the person using the material makes a profit or not, the offence is the use in public.

Edited May 25, 2012 by assisted blonde

[caledfwlch]

Technically there has been an infringement of copyright (Copyright, Designs and Patents Act 1988) if material is used in public then a fee is due to the holder of that copyright, and permission should be granted before the use of the material whether it is a photo/music etc.

 

Having said that yes an offence has been commited but it is unlikly that the photographer will take the OP to Court.

 

The use of copyright material in public makes no distinction as to whether the use for charitable or commercial or if the person using the material makes a profit or not, the offence is the use in public.

 

Hotlinking has been proven in Court to not be an offence and appears to be a total defence. This is why Google images search exists, they successfully won after being sued because its hotlinking, not storing.

 

It would actually cost the Photographer a lot of (afaik unrecoverable from the OP) Money to actually trace the OP, having to take various ISP's to court etc.

[unclebulgaria67]

I believe the copyright, designs and patents act 1988, did not really cover the sharing of images etc on the internet. We have seen how difficult it is, for any copyright holder to take any action, against their material being shared online. This is why there has been talk of the need to pass new legislation.

[Bang!]

OK - its been amended - but a 1988 act is not really going to win prizes for legislating against something that was not really around at the time it was drafted.

[assisted blonde]

Sorry hotlinking is still an offence if the permission of the copyright owner has not been sought or the site that the image has been downloaded from has not been referenced, which case are you refering to as I can only find US cases where Google has won, I can however find an awful lot of links that Google has had to take down links approx 284,000 per week.

Copyright is a minefield, if someone says its copyright dont use it, really is best not to argue, only recently it was found that there was copyright infringement on a photograph that wasnt a copy but an interpretation of the original photo, taken by another photographer.

[assisted blonde]

The Act has had a number of Amendments but is still the primary source for the law regarding protection of copyright

[True Believer]

Sorry hotlinking is still an offence if the permission of the copyright owner has not been sought or the site that the image has been downloaded from has not been referenced, which case are you refering to as I can only find US cases where Google has won, I can however find an awful lot of links that Google has had to take down links approx 284,000 per week.

 

I took the image down straight away. I have no problem with that. It's the charging of £350 that bothers me.

[sick of thames credit]

 

I had a look on a site which hosts his images, which gives prices for the use of his images. The one I had used would cost about £38. I offered to pay £50, to cover this and make some kind of apology.

 

He wants £350.

 

I've asked why this is the case, but he has not been forthcoming, and is threatening legal action. I'm not sure what to do. Part of me thinks, fair enough, I should have tried to get in touch with him, and copyright is essentially a good thing that protects artists, so I should just pay up and chalk it up to experience.

 

 

Sounds like hes trying it on, however I have the feeling that he might have done this before and has actually taken someone to court and won.

 

I think when he had had this in the past and he has sued someone, he has got the £38 plus other costs awarded in court and it has come to approx £350.

 

He's probably figuring that you will work it out that it will cost you approx £350 if it goes to court, therefore you might aswell cough up £350 to save the hassle.

 

One of the legal experts here would probably best to advise, but I'm certain during my legal research into other matters. But if you are willing to settle out of court for what they would win in court (i.e. the £38 fee, but excluding legal fees), the court would award fees against the claimant even if they won as they had wasted the court time. And also as a punitive measure to prevent people using the court system in order to profiteer by threatening legal action.

 

On the subject matter at hand, I have been in the position before i.e. legally threatened for using someone else content including a $50 million potential lawsuit from america!

 

On getting legal advice on such a threat, it seems to be the standard procedure is a) immediatly take down the offending content and b) offer compensation from any profits you have made using that persons work.

 

As my sites at the time were not for profit aswell, I didnt need to offer b) and all potential suits dropped their action on me after I took down the content.

 

Although this was the early days of the internet and companies were less reluctant back then to test the law.

 

On a positive note, some of the people who wanted to sue me in the past on seeing how much traffic I was generating. eventually were happy to enter into a commercial arrangement for me to use their content.

[assisted blonde]

Try sending him the £50.00 you have offered with a letter saying thats it, if he cashs the chq he has accepted.

[hmmh1978]

Seeing that you admitted liability and offered him recompense, I would make him an offer as a Part 36 offer to cover your back with regards to costs. This is purely tactical.

 

I will not give you any advice on the amount to offer him however think about how much it would have cost to purchase a license to use the image, then put on top how much you would pay to not have any headaches about this any more and frame it in form N242A:

 

http://hmctscourtfinder.justice.gov.uk/courtfinder/forms/n242a-eng.pdf

 

This is the official form for framing Part 36 offers which ensures that there are no technical breaches with regards to format, etc. which would render it a non-Part 36 offer.

 

I would read up on CPR part 36 and FYI, there are flowcharts out there which show you the process step by step and what the repercussions are of undertaking such a move but the thing about a CPR part 36 offer is that it should not be low enough to render it useless.

Edited May 27, 2012 by hmmh1978