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RE: image use on internet and small claims court

 
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mrhdooley
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PostPosted: Tue Nov 23, 2010 10:45 pm    Post subject: RE: image use on internet and small claims court Reply with quote

HI,
I understand that copyright cases cannot be heard in a small claims court, but I was wondering if there are ways around it if the copyright breach is very straight forward?

I have a friend who is a professional photographer and took some photos of a music group. These photos were shared by email with the manager of the band and it is clear through the dialogue that if the manager wants to use the photos on the website he will let my friend know. A few months later some photos are on the official website on the front page with my friends name cut from the images. quite a few more photos turn up on their official facebook page along with another website. We contacted the manager and asked him to sign a license agreement for the images that were being used, he refused and has since removed them. We have screenshots of the website, downloads of the web pages, witnesses, email transcripts etc, the original images with the metadata etc.

So, if the breach of copyright is straightforward (forgive me if this is not the case!), could a claim be made in a small claims court for damages, being the license fee that was not paid?

Kind regards
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mrhdooley
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PostPosted: Wed Nov 24, 2010 3:13 pm    Post subject: Reply with quote

Update,
My friend now has an email from the bands manager that clearly says they used his photos, so this is not being disputed, what is being disputed is that the manager says he had agreement that they let my friend on stage if he passes them on the photos. They have no evidence of this agreement, and in fact my friend has an email, written evidence, that says if they would like to use the photos for anything official they will contact my friend. The photos ended up on the front page of the bands website!

regards
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AndyJ
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PostPosted: Wed Nov 24, 2010 7:21 pm    Post subject: Reply with quote

Hi Mr Dooley,
Taking your first posting first, this would appear to be a relatively straightforward infringement if the images were used without a licence. Normally a licence should be in written form so as to avoid later disputes about how often and where images can be used. This kind of detail is particularly important with regard to emerging bands who may go on to make it big, thus making any early photographs of them more valuable. But unless the manager some how acknowledges the debt (over the non-payment of the licence fee), I doubt if a small claims court would entertain the claim, since there is a dispute over the actual contract each side say they agreed to. You can't use the small claims court to extract damages. You can only recover the actual amount demanded for the licence (plus reasonable costs). That's if you're lucky and don't have to go back to the court to get an enforcement of the judgement. Your friend may need to seek professional advice on that issue.
As for the second development, namely about what was or wasn't agreed about backstage passes etc, this is clearly a matter which needs to be resolved before the licence issue can be settled properly. It might be worth using one of the informal arbitration services to resolve the matter more or less amicably, as this is far less costly than litigation. Your local CAB or county court should be able to provide details.
I suspect that the band's manager may be confusing payment for the photographer's services with the payment for the licence to use the images. Most professional photographers will understand the distinction, but others may not. However I would expect any band manager worth the name to have a reasonable understanding of copyright issues if he (and the band he represents) is not to get ripped off by a record company at some later stage!
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mrhdooley
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PostPosted: Wed Nov 24, 2010 8:13 pm    Post subject: Reply with quote

many thanks for your response.

The only thing my friend wants to get is the license fee that he should have been paid for them using the photos.

The official website of the band is held on a server in the UK and has to be dealt with in English courts as it is by a UK music label. I live in Europe and could help out at this end. The manager has also posted a lot of images on facebook for the bands official facebook page which is used as a commercial site linking to the bands music itunes and shirts etc, and also gives facebook a license to the photos as its The manager lives in Australia which is where my friend is.

The manager has said he is not willing to discuss the matters further.

So, for the UK website, we can seek informal arbitration services. What happens if they refuse to participate? Could he apply to a small claims to recover the license fee? I would like to think that if the manager was summoned to a small claims court, he might try to settle without having to go to court. When you say about going to back to court to get an enforcement, is this expensive? If its only time, then my friend doesn't mind, its more the fact of getting the license fee and making the point, hence not wanting big costs of going above small claims as it would not be worth it?


For the manager in Australia and his posting on facebook, I imagine my friend would carry out a similar process there. He would have to pursue this in Australia, no?
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AndyJ
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PostPosted: Wed Nov 24, 2010 11:41 pm    Post subject: Reply with quote

Wow this is a bit more complicated than your original posting implied!
First of all if your friend is based in Australia amd the manager is also based there (and I'm assuming the manager is the person responsible for the alleged misuse of the photographs,
at least in the first instance) then the claim cannot be brought before the UK courts as both claimant and respondent are both outside the jurisdiction.
For a UK hosted site the copyright owner (ie the photographer) is the only person who can ask for the infringing images to be removed. There is no formal method of doing this, although many reputable hosting services and Online Service Providers tend to have a link on their website for reporting copyright infringements (this applies to Facebook which I will come to in a minute). If you get a suitable letter from your friend authorising you to act as his UK agent, you should be able to this on his behalf, but some hosts may require to see this written authority before they take any action. The relevant legislation you (or the photographer) need to quote is Regulation 19 of the Electronic Communications (EC Directive) Regualtions 2002. This works in a similar way to the American DMCA in that hosting services and OSPs are not liable for any infringement which occurs on their sites until they have received credible and verifiable notification that infringement has taken place. If they choose to ignore the notification, they become liable along with the poster for any further infringement.
The next stop is the record company, as separate from the website it operates (it has probably outsourced the actual hosting to another company in any case). The copyright owner (or you if you are authorised by him) should write to the company's legal department and state that the images are not licenced and are therefore infringements of his copyright, and that the company is cease using them in any format (ie in print or on the internet etc) until the band's management have settled the outstanding licence fee. Obviously the copyright owner/you will need to provide full details of the actual images so that they can be identified. He/you could state that any use to date by the record company will be viewed as unknowing infringement and will not be pursued, but if they fail to act on your letter and remove all images, they will be held liable for secondary infringement contrary to Section 23 of the Copyright Designs amd Patents Act 1988. This should add pressure on the manager to resolve the licence issue, as I suspect the record company won't wish to become embroiled in a copyright case, on the wrong side, given their stance on illegal filesharers!
The issue over Facebook would probably be best dealt with in Australia as I assume that is where the band's account was created. The copyright owner can easily contact Facebook via the http://www.facebook.com/legal/copyright.php?howto_report link. It's a fairly simple process and Facebook (being a US company) tends to apply DMCA standards to its takedown procedure, which once your friend has convinced them he is the copyright owner, should prove fairly straightforward.
Finally, all my previous comments about arbitration will only apply, a) if there are similar services available in Australia, which I think is likely, and b) if the manager also agrees to go to arbitration, which from what you have said, seems less likely. Your friend may need to use the Australian court system to lodge his claim for infringement. Although Australian law on copyright is very similar to UK law, I do not have enough detailed knowledge to advise you or him on that aspect. Equally I do not have enough knowledge of the Australian court system to advise you on the costs involved or whether there is a similar small claims route there.
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mrhdooley
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PostPosted: Thu Nov 25, 2010 6:24 am    Post subject: Reply with quote

Thanks again for the advice! very detailed and helpful!

Ok, all images have been removed, but not before being evidenced and collated.

The 'official' website states is owned by the UK record label and takes responsibility for the site, even though the contact is the manager in Australia. So that's why I thought we would have to pursue the label in the UK. This is the bigger deal as its the main official commercial site. As I said, at this moment all images have been removed, we have an email of them admitting they used the photos and that the photos belonged to my friend, they are now playing ignorant on the image license by saying they thought they had an agreement, we actually have no agreement for them to use the images and none exists, they can't provide one. The photos were on the front page and had been deliberately modified to remove my friends name from the image, so they knew what they were doing!
Would a small claims court accept a claim to recover the licensing fee? There is no problems in my friend writing me a letter to pursue it over here.

My friend will seek advice on the other part in Australia. This is secondary really and to recover the license for the official site is probably enough.

Thanks again for your detailed help!

Regards
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mrhdooley
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PostPosted: Thu Nov 25, 2010 7:18 am    Post subject: Reply with quote

Ideally, I guess, by pressurising the music label and the manager, it could be used as a bargaining chip in any 'without prejudice' negotiations. I imagine the music label will be putting pressure on the manager to 'fix it'. What do you think? As I said, a modest license fee is all that is being sort. I have checked a UK freelance guide that apparently can be used to see if a license is too high etc, and the license fee being sort is extremely modest. If my friend could settle the UK issue, he would be willing to let the rest of the infringement to pass as the photos have been removed.

Thanks again for the help in sorting through who is responsible for what. With the internet being used all around the world and people doing things from different countries, it can be quite confusing!

Regards
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AndyJ
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PostPosted: Thu Nov 25, 2010 8:38 am    Post subject: Reply with quote

I would forget about the small claims court for the moment, as that assumes there is a contract in place (not necessarily in writing) which is recognised by both parties, and the dispute centres on non-payment of an invoice etc. Because the terms of the contract are disputed, a small claims court is unlikely to become involved because it is not there to sort out defective contracts. You also have the problem of one or both parties being in Australia. There is no formal contractual relationship between the photographer and the record company so you can't take them to a small claims court.
From what you have said it sounds as if the photographer wishes to licence both the manager and the record label separately to use the images. This is perfectly possible but it will require the drawing up of very precise licences which I would suggest may need the assistance of a solicitor, otherwise the legal department of the record label will run rings round you. If as you say the fee demanded is fair and reasonable, then I don't see why negotiations cannot go ahead. It would seem that the manager and record label like the images enough to use them, so should expect to pay a fair price, just like any other financiial deal. For the UK, the Copyright Tribunal is generally the final arbitor on what is or is not a fair fee for a licence.
Your friend should contact a professional photographers association such as the AIPP http://www.aipp.com.au/ or the APA http://www.australianphotographyassociation.com/AboutUs.html for advice on licensing and where to find a good IP lawyer.
Although the fees now may be modest, over time, depending on how the copyright is managed, and how big the band become, these images could earn your friend a tidy sum in royalties, so it is worth getting it right from the outset. One thing he could consider is placing the images with a picture agency who specialise in celebs, and they will handle all the negotiations, not only with the manager and record label, but also follow-on sales to the music press, fan sites etc. The down side of this is that they will usually take up to 50% of the proceeds, but they will not not only exploit the images more thoroughly, but also take up any infringement issues in the future.
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mrhdooley
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PostPosted: Thu Nov 25, 2010 12:05 pm    Post subject: Reply with quote

Ok, thanks again for this invaluable info.

Should we speak with the manager and try to organise mediation in Australia 'without prejudice' to try and come to an agreement and if so do mediators help with drafting agreements or would he be better off with an IP lawyer to negotiate from the beginning?

Regards.
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AndyJ
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PostPosted: Thu Nov 25, 2010 7:23 pm    Post subject: Reply with quote

I'm not familiar with what mediation services may or may not be available in Australia so I can't offer much specific advice. But generally speaking mediation is designed to be less confrontational than litigation in court which is entirely adversarial, but it does rely on both parties agreeing to take part.
I doubt if the mediator will be legally qualified and will probably only facillitate discussion to bring the two parties onto common ground rather than actually provide solutions. I think some professional advice on the drawing up of the licence(s) would be a good idea, although getting a lawyer to also negotiate would be a more expensive option
However if the manager agrees to discuss the situation, a mediator may not be necessary.
It seems to me your friend has two separate issues to get resolved: payment for the use which has already taken place, and a more formal licence arrangement for the future, if that is to happen. Depending on the manager's attitude, the two could be dealt with serially, or amalgamated into one agreement. Any agreement for the future would need to consider the role of the record company. For example the manager's licence might be limited to the general promotion of the band (tours, gigs, press interviews, merchandise etc) excluding anything to do with the recording contract which would be the subject of a separate licence between the record company and the photographer, probably based on royalties from record sales where the photographer's work is used on sleeves and an annual fee for use on the website and general album promotion. Or one licence could be issued to the manager - for which he might be expected to pay more - which would allow him to sub-licence use to the record company. This is where the advice of an IP lawyer with experience of the music business will be invaluable. The photographer should also retain his rights use the images and to licence them to other third parties (eg an author who wants to produce a book on the band or a TV company which wants to profile the band and requires images from their early days etc). The photographer also needs to ensure he is credited as the author, as this may lead to other commissions from elsewhere in the music business, and allows people who might want to find him (as in the examples above) for permission to use his images for some project.

Footnote. If you and your friend have time, read through the report of this case http://www.bailii.org/ew/cases/EWHC/Ch/2003/1335.html as it covers much of the same ground as this dispute and highlights some of the pitfalls to avoid.
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mrhdooley
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PostPosted: Thu Nov 25, 2010 8:46 pm    Post subject: Reply with quote

Once again, thanks for your help. I have had a read though the judgment and it makes very interesting reading.

I think my friend will need to seek an IP Lawyer in Australia. We are 100% sure that no verbal agreement was ever made as no discussions took place about the photos usage or licenses and the shoot was all very spare of the moment and there is no agreement in existence. In fact we have the email where the manager says he will let my friend know if they want to use any of the photos. We have all email conversations etc.

The UK record label's director has now contacted us and said that it is their understanding that my friend was given enhanced and privileged access to the band as a gesture of support expressly on the basis that his photographs could /would be used free of charge on the Band's website (which we host on their
behalf for their use)
and the Band's pages on Social Media sites - industry
standard "Non Commercial Band Use" and as explicitly understood by all
parties at the time.
The then go on to say 'While continued use of the photographs would be entirely within the Band's rights given the agreement, I understand that the band have removed the photographs as a gesture of goodwill and that the issue has concluded.

Do you think that the part where the director says which 'we host on their
behalf for their use' with regards to the website is saying that the manager and the band are legally responsible for the images used on the website even though the terms and conditions on the website say that Legal proceedings related to the matters set out in the terms of use shall be brought and adjudicated solely in the courts of England and Wales (because the manager is based in Australia)? Obviously this could simplify things for my friend if he could just deal with one case in Australia.

We are really disappointed with the record labels attitude as the owner (very famous) actually is a member of the British Phonographic Industry council that lobby for tougher copyright laws and there has been a clear infringement of copyright!

How do you think (opinion only obviously!) verbal evidence on a license agreement, i.e. he said she said, would hold up in court against written emails as evidence? This seems to be the only sticking point, the license agreement, they admit using the photos, they admit my friend owns the copyright but now refuse to discuss the license fee.

Thanks again! this whole thing is taking over my life at the moment as my friend really could do with a break from this less than nice guys.
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AndyJ
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PostPosted: Thu Nov 25, 2010 10:41 pm    Post subject: Reply with quote

First of all I suspect, all that guff from the record company is their attempt to distance themselves from any legal action, and probably based on what you have quoted and given some priced legal help, they would probably get out of any claim against them if it went to court. In any case, where there is unknowing secondary infringement, damages are not available as a remedy under UK law, just an injunction to stop them using the images, which of course they would probably say they didn't, just provided the site for the management. They sound fairly bombproof.
So what remains is a fairly basic contract dispute (albeit with implications for copyright). As for your friend's chances, a lot will depend on what witnesses can found to any verbal agreement. Of course your paper evidence will be significant, but I really could not predict how a court would rule. Generally speaking the courts do not try to repair a bad contract, and in most cases if no agreement can be reached on what was agreed, the contract (if there ever was one) will be set aside and the court will try and put the parties back to where they were before any agreement was commenced. In other words pretty much where things are now, except that in equity your friend has possibly lost some licence fees for the limited time the images were used, but then the court would look at what expenses he had incurred doing the shoot and probably say he has not lost out significantly - after all he still has the images to try and sell elsewhere. But again, a good lawyer with experience of the Australian civil courts will be able to advise on this far better. I suspect that the costs of starting litigation will far outweigh any possible award of damages, if they were to be awarded.
That is why I suggested mediation in the first place: assuming that both parties actually want to reach a a mutually acceptable deal, this is the cheapest and most promising method of reaching that goal.
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mrhdooley
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PostPosted: Fri Nov 26, 2010 6:32 am    Post subject: Reply with quote

Thanks again. Always very helpful.

My friend is going to consult an IP Lawyer.

When reading the case you sent me in the link, the judge explains a lot about what he thought in regards to evidence and version of events and its reliability.
In my friends case, if and a big IF, a verbal agreement existed, surely it would not seem plausible that he would agree for the band to use the images on their official website uncredited and modified to remove his name, so once again IF, some verbal existed that would most likely include crediting the photography, particularly as their argument is that they were supporting the photographer, by them not crediting the images and removing the photographers name, would break the conditions if this fictitious agreement and get us back to the same position we are in now?

Regards
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AndyJ
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PostPosted: Fri Nov 26, 2010 8:36 am    Post subject: Reply with quote

Yes, I would agree that removing the photographer's name does tend to suggest deliberate or reckless infringement, rather than the existence of a prior verbal agreement. If it had been mutually agreed that the photographer would not get a credit, why would he go to the trouble of supplying the images with his logo embedded, knowing that this was not required?
I'm sure the manager will claim he did not remove the name, and that it was some nameless well-meaning person at the webhost who did it for aesthetic reasons, or some such nonsense.
Good luck with the lawyer, and I hope it doesn't get too expensive.
And don't forget to come back to the forum later and tell us how things turn out. We get too few real life examples of how cases are resolved.
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mrhdooley
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PostPosted: Fri Nov 26, 2010 3:33 pm    Post subject: Reply with quote

Thanks a lot Andyj. Your help has been great. I will be sure to let you know how this turns out. I am hoping that they are bluffing on the issue and waiting to see if they get something more official from an IP Lawyer rather than a mere 'hobbyist' like myself!

Its quite interesting the whole thing as the band is Australian and the whole section of photos of the band in the live section is now more or less empty as they were all my friends photos, so they obviously really liked the photos.

I cannot understand the mentality as I am sure if I downloaded their songs and used them on some commercial sites or in an advertisement without payment they would have no hesitation in suing me!

Anyways, hopefully some day soon I will be reporting a positive result!

Regards
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