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Photo copyright advice needed

Posted: Sat Jan 04, 2014 12:15 am
by Keaky
Hi, My Daughter (who is a photographer) did some work last year for a dance school, basically portrait shots of the children in their dance outfits (a lot like school photos), parents purchased the images as a print package and along with that they was given a free watermarked digital image for use on facebook, no printing licence or commercial licence was granted for any of these.
One of the mothers who purchased a package runs a print business where she prints images onto mugs/iphone covers etc and we recently noticed she had printed the image of her daughter onto products and was now using those products on her facebook business page as advertising.
My daughter messaged her and pointed out that she was not granted permission to print the image nor was she given permission to use them in any form of commercial advertising and asked her to remove the images from her business page, the business owner was quiet rude to my daughter stating that she printed them for personal use, she admitted to using the digital file (which she removed my daughters watermark from)and basically ignored her request to remove the images, my daughter asked a second time and again was ignored except for more rudeness claiming that no harm was done, at that point my daughter sent her a message stating she had 24 hours to remove the images otherwise she would send her a bill for the licence to use the images in a commercial sense, when the 24 hours passed the images still remained so my daughter did as she stated and sent her a bill for the licence fee and giving her 14 days to respond etc. within a few hours I personally recieved messages from a friend of this womans telling me that this woman knew a lot of people and that my daughters business could suffer if she basicallly did not drop the claim, today the woman posted on her fb business page stating that she had seeked legal advice and this photographer (my daughter) attempts at extortion and intimidation will basically be ignored and business will carry on as usual.

The plan should this be ignored is to make a claim through the small claims track but as we have never done this before, would you say this is the right course of action given the fact that there has been almost threats and intimidation towards my daughters business should she continue ?

Posted: Sat Jan 04, 2014 10:42 am
by AndyJ
Hi keaky,
I think the course your daughter is using is the correct method of dealing with this.
The only issue which may cause problems is that should the other woman defend the action in the small claims court, she will undoubtedly raise what she seems to think is a defence, namely that her copying was for purely personal use, and therefore she may further claim, is not infringement. This of course is a fallacy. There is no exemption for private use, only for private study or research (see s 29 of the Copyright Designs and Patents Act). As she already has a legally-obtained copy of the image (the one your daughter supplied) she does not need and could not justify having, a second copy on a mug for the purposes of private study.
The problem arises that the small claims court cannot hear copyright claims, and so cannot decide whether this is infringement. On that basis the court might decide not hear the case until the primary issue concerning copyright had been resolved.
I don't know the amounts involved here, but I suspect they are less than the cost of getting a solicitor's letter outlining the law as I have given above, although that would probably be the most effective way of getting this woman to see sense.
So often with disputes of this nature, both parties become entrenched, thinking they are in the right legally, and the opportunities to resolve the dispute by mediation are missed.
However if matters have not got beyond that stage, it might be worth your daughter trying to arrange a meeting with the woman, with a view to exploring whether there could be some mutually beneficial business opportunity, whereby your daughter passes on details of the mug printing service to her clients in exchange for a finder's fee.
There are a couple of other courses of action, which could be examined, especially because they cost nothing and can be done in parallel to the small claim route.
The first is to contact Facebook and report the IP infringement, which should have the effect of the image being taken down and if the infringement is repeated the woman's whole Facebook profile might be shut down. Secondly your daughter can ask the Local Trading Standards office to become involved, as this is potentially something which could develop into a criminal offence if the woman continues to copy images from other sources without authorisation. At the very least a visit from a trading standards officer might make her see the seriousness of her mistake about the law.
Make sure that you get screenprints of the Facebook page showing the image your daughter took on the mug, as this will be important evidence of the copying.
I hope this helps.

Posted: Sat Jan 04, 2014 1:20 pm
by Keaky
Hi AndyJ, im confused as we read the small claims can deal with copyright issues and can be done through the PCC ? The amount is £445 which my daughter came up with using the guide on the website and also getty images, the woman has since removed the images but more than likely if we do not follow this through she will put them back up, i do not think its possible to reason and come to an agreement with her without legal help as she is so rude.
We have screen shots and saved all the messages between her and my daughter, she actually claimed at one point that the images of the mug and phone cover got accidentally uploaded to her business page yet they are all watermarked with her business logo lol.

Posted: Sat Jan 04, 2014 2:13 pm
by AndyJ
Hi keaky,
Sorry, I misunderstood your earlier posting to mean the normal county court small claims track which would be the usual route for pursuing an unpaid invoice or similar debt.

The PCC (Patents County Court) is now known as the Intellectual Property Enterprise Court, which helps to disambiguate both its purpose (it's not just concerned with patents) and the fact it is part of the Chancery Division of the High Court (and not a County Court in the conventional sense).

But the IPEC does have a small claims track and that would be correct place to bring a cause of action over a copyright issue. However there are a couple of things worth mentioning. The first is the delay. A case may be listed for many months ahead, although the decisions are normally promulgated very quickly. The second is that the court usually sits in London (although in theory it can also sit in any of the ten Chancery District Registries based in Birmingham, Bristol, Caernarfon, Cardiff, Leeds, Liverpool, Manchester, Mold, Newcastle-upon-Tyne, and Preston). However since many cases, especially those on the Small Claims Track, are dealt with on paper, with case management often being done via a telephone conference, this may not be a problem should you live some distance from London.

Hopefully your daughter has read up on the procedures for the IPEC Small Claims Track (if not they can be found by following the link above) and is happy to present her own case, as this will keep the costs down. In putting together her case, she should keep a note of the amount of time she spends on it, and any incidental costs (letters, phone calls, photocopying etc) and of course if she gets legal advice, the cost of that, because although it would not normally be possible to recover these costs using the Small Claims Track if she is successful, the court may need to know them as part of the costs management process. She would be able to claim back court fees, expenses incurred with filing claims and responses to the Court and travel costs incurred while attending the court, if successful.

Posted: Sat Jan 04, 2014 3:41 pm
by Keaky
Thanks Andy, that has helped a lot, we are waiting to see if my daughter gets a letter from this womans solicitor as she claims to have seeked legal advice, once we have recieved that we will then go ahead as we are pretty sure but what she has wrote on her business page that she is not going to pay the licence fee my daughter has asked for.

one other question, we live in a very small town (which this woman also lives in) she is posting things on her business page towards my daughters business, as well as the intimidating messages I have recieved from her friend, all of this is causing my daughter a great deal of stress and she is constantly worrying that her business is going to suffer, should this be something we should include in a claim or should this be kept out of it? we dont want to ad or leave out anything that could harm my daughters case.

Posted: Sat Jan 04, 2014 5:37 pm
by AndyJ
Hi keaky,
It would be best to keep the two things separate. While the alleged behaviour may constitute flagrancy as far as the infringement is concerned (and you would probably need to obtain proper legal advice on this) introducing this element into the claim might set it outside the narrow confines of what can be dealt with by the IPEC Small Claims Track, which aims to deal quickly with straightforward claims.
However if you or your daughter feel sufficiently concerned about these remarks, action may be possible on two fronts. Threats or other behaviour which cause you daughter alarm or distress, and which have been made on more than one occasion may amount to harassment, contrary to the Protection From Harassment Act 1997, and if she believes this to be the case, the police should be informed. However a business cannot be harassed, only real people, so she would not be able to adduce evidence of attempts to damage her business, and in any case, the police would be less inclined to act because they might see it as more of a civil matter. At the very outside it is possible that s 127(2) of the Communications Act 2003 could also be invoked. This says
A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he—
(a) sends by means of a public electronic communications network, a message that he knows to be false,
(b) causes such a message to be sent; or
(c) persistently makes use of a public electronic communications network.
However since this area of the criminal law is closely controlled by the Director of Public Prosecution's guidelines, it would be exceptional for a case like the one you have described to be commenced under this Act.
Since the remarks appear to be directed more at your daughter's business, I think that defamation could be a potential issue, provided that serious harm is caused:
1 Serious harm
(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
(2) For the purposes of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.
Clearly at this stage I suspect there has been no actual provable financial loss, but that would not prevent pre-emptive action at this stage. Bear in mind that there are defences for statements which are true, or are honestly held opinions or it is in the public interest to publish. Assuming the first and last of these don't apply in this case, honestly held opinion may be arguable; much will depend on the actual wording used.
However you really do not want to commence litigation on defamation grounds because the costs are ridiculous and are generally out of proportion to any gains which may be made. (Take a look at this recent case as an example Daily telegraph). However an allegation that a statement is defamatory may be sufficient to trigger Facebook's takedown procedure, although as Facebook operates under US law, they tend to be much more tolerant over free speech issues, due to the First Amendment.
Both harassment and defamation warrant serious reflection before embarking on a course of action. And that should include proper legal advice, either from a solicitor, the Citizen's Advice Bureau or some trade body or union. If your daughter has comprehensive insurance as a photographer it might be worth checking to see if legal advice cover is included. Undoubtedly all these people will suggest alternative dispute resolution as the best first recourse, and should be able to provide details of local ADR services.

Posted: Sat Jan 04, 2014 6:14 pm
by Keaky
Ok Thanks AndyJ, I dont think she wants to bring a seperate claim against her for the harrasement, plus this woman has not actually named my daughters business, its just in a small town everyone knows who she is talking about, we just wondered if this womans behaviour would somehow come into the copyright claim because the intimidation is to try to get my daughter to drop the whole thing, which to me says this woman knows she has done wrong otherwise she would not be worried about my daughter taking it further, we just didn't want to ad any of that to the case particulars if it would harm my daughters case so on your advice we will just keep that out of it and stick to the facts surrounding the copyright issue only.

Thanks so much for your advice it has been very helpful :D

Posted: Fri Jan 17, 2014 8:53 am
by Keaky
Hi AndyJ, wondering if you could offer some more advice, my daughter received a letter from the infringer today, first of all she claims that the time limit of 24 hours to remove the images was unreasonable and also that the 14 days to resond was also unreasonable and that my daughter should have given her 28 days to respond.

She also states that she no longer had the original digital image to print from so took the image from her facebook profile and that the image did not have a copyright/atermark on it (hich is because she cropped it out, my daughter still has the original email which contains the image sent to her and it shos a copyright logo).

She claims that although my daughter ons copyright she does not have the right to reproduce or use the image in anyway as it is an image of her child who is a minor and she never gave her permission (she did as my daughter got all parents to sign a model release, however this signed releases were in the hands of the dance school teacher (who the infringer works part time for and she is saying they were destroyed).

at the end of the letter she makes an offer of £10 without prejudice as a goodwill gesture, which is a total insult to my daughters work !!

Where do we go next? should we reply to her and if so hat would be the best way to respond or should we ignore this now and go straight to making a claim through IPEC ?

Posted: Fri Jan 17, 2014 1:51 pm
by AndyJ
Hi keaky,
It rather sounds as if this woman is unaware that she has broken the law. By copying the image without permission and in circumstances which are clearly not covered by the fair dealing exemptions, she is liable for infringement.
On that basis arguing about how much notice was given or whether your daughter has certain exploitation rights, is frankly irrelevant.
Based on the Electronic Communications (EC Directive) Regulations 2002 (SI 2002/2013) Regulation 19, an internet service provider is required to act 'expeditiously' to remove infringing material in order to avoid liability, so an actual infringer should be reacting with even more haste. On that basis, 24 hours to remove the image seems entirely reasonable.
Next the fact that the woman appears to have removed the watermark from the image taken from Facebook would make her liable to a second offence contrary to section 296ZA of the Copyright Designs and Patents Act 1988 by removing or circumventing a technological measure designed to protect copyright in a work. Here “technological measures are any technology, device or component which is designed, in the normal course of its operation, to protect a copyright work other than a computer program".
And lastly, the woman appears to have accepted that your daughter is the owner of the copyright, but is utterly confused about what this entitles your daughter to do. The fact the subject of the images is a child is immaterial. There is no legal requirement to obtain a release, although this is a prudent thing to do for exactly situations like this. The only possible legal restraint on what your daughter may do with the images is contained in section 85 and concerns photographs which have been commissioned for private and domestic purposes. It is debatable as to whether these particular photographs meet the criterion of private and domestic purposes, but even if they did, the fact that a release was obtained would overcome that restraint. Furthermore since this woman did not actively commission the shoot, she would have no rights in the matter, and as she had published a copy of the image on a mug on a website to which the public had access, any claim to privacy would have been abandoned.
As for where to go next, your daughter needs to have a clear idea of what remedy she wants. The offending image appears to have been removed, and the alleged infringer appears to have acknowledged that she is in the wrong (by the offer to pay £10). Therefore it seems your daughter needs to enter into a dialogue over the amount. I think the amount of £445 which was quoted in an earlier posting is possibly on the high side, given that the image probably has little market value per se. Your daughter needs to consider what is the actual market for an image such as this. If she submitted it to a dance magazine, what rate might she get? Does it have any potential as a stock photograph, if so what rates might it fetch with, say Getty or Corbis?
Once she has determined a reasonable potential fee then she will be in a much stronger position to bargain with the other woman, knowing that a court is far more likely to accept her figure, should matters go that far. And as I have suggested previously, I don't think they should because the costs will ultimately probably outweigh any award of damages.