The mediation is offered by the court and is run by them so you never have to actually speak to anyone but the mediator over the phone - it took about an hour of to-ing and fro-ing. I still felt like I 'lost' but as you say, a lesson learned albeit an expensive one! These people are nothing but sharks and it is a really horrible way to conduct business - I don't know how they sleep in their beds at night!Oreo2017 wrote:Thanks so much for letting me know. Did they invite you to mediation, was this at their office or over the phone?
I completely understand - its just so frustrating when you can buy an almost identical image for Â£7 - lesson well learned I suppose!
Please be aware that it is likely that Stockfood and/or their lawyers monitor this site and therefore you should not make any admissions or discuss the details of your case here.
Secondly we cannot, by law, provide you with legal advice on which you conduct any litigation.
However we can give you some generic advice irrespective of your actual situation; if you need more specific advice you need to consult your own solicitor or Citizens Advice. Details of how to do this are shown earlier in this thread.
If you obtained the disputed image from a legitimate source and you can prove this, then this may provide a defence, and liability for primary infringement (if it exists) passes to the person who supplied the image to you. If this is the case, then you really need to get your own legal advice. Since this may take a while to sort out, simply acknowledge receipt of the Stockfood letter and inform them that you are seeking legal advice and that all further correspondence should be sent to your legal representative. On the other hand if you acquired the image by just finding it on the internet, then you may well be liable for primary infringement, unless one of the fair dealing exceptions applies to your use of the image. These exceptions include: for the purposes of criticism, review or quotation; parody or pastiche, or non-commercial research. However all of these uses (except parody) require that you provide sufficient acknowledgement of the source (usually meaning the author), which I suspect has not been the case with your use. Which then takes us back to the likelihood that you are liable for primary infringement, and assuming that Stockfood are the exclusive licensors of the image, they are thus entitled to fair recompense.
The amount they are asking sounds quite high for the use of a single image. You need to find the disputed image on their website and make a note of the actual fees they would have charged if you had entered into a standard agreement with them. Also make a note of the terms under which the image is available; you may see terms like 'royalty-free' or 'rights-manged' being used. The first term refers to a single one-off payment (usually for a fixed period of time) while rights-managed applies where the amount of the fee is determined by the quantity of views the image will get in your chosen medium (so for a print run, the size of the run, or for a website, the number of hits, etc). Then multiply the basic rate by the length of time you have been using the image to determine the actual fee you would have paid had you gone to Stockfood to source the image in the first place. Compare this amount to the Â£513 they are demanding.
If the latter figure exceeds the former by more than about 20% (to cover any administrative costs) then it is probably unreasonable and you should challenge it, and if necessary ask to go to arbitration over the amount due.
If there are any other circumtances which I haven't covered, but which you think may mitigate your liability over the use of the image, then you will almost certainly need legal advice. But make sure you first ask for an estimate of the likely cost of the legal advice, as this could quickly outstrip the amount being demanded, without any significant saving to you. Legal aid is not available for this kind of case, and it is most unlikely that you will be able to arrange a no-win, no-fee deal either (known more formally as a Conditional Fee Agreement or CFA). However Citizens Advice can provide advice for free, and if you do end up having to go to court, there is an IP Pro-Bono unit which may be able to assist you in putting your case together. It is highly unlikely that the matter will go to court, unless you do nothing, in which case there is every possiblity that Stockfood will win a default judgment against you and the level of damages will go largely unchallenged because you won't be represented in the proceedings, plus you will then also be liable for certain court costs. Therefore, whether you deal with this yourself or use a solicitor etc, you must be prepared to continue trying to resolve the issue through negotiation.
If you search around the threads here you should find most of the information you need.
We don't tend to provide private advice because this is a public resource, although I can appreciate why you wouldn't want to openly discuss any specific details about you case. Could I suggest trying Citizens Advice?
If you obtain the image from a third party, then you are still liable for primary infringement, however you can then claim your losses against your supplier in an action of your own. This is quite a common situation where people have employed a web designer who has then unlawfully copied images from the web. In these circumstances the website operator is still liable but can then make their own claim against the web designer. Suitable case law to illustrate this would be David Hoffman vs Drug Abuse Resistance Education (UK) Ltd  EWPCC 2
Aside from that , my advice as a layman is much the same as in any legal claim whether copyright or otherwise. Did you do infringe their copyright. If not, eg its a different photograph, then defend your case. Write to them and tell them why you have not infringed their copyright.
If you did infringe their copyright then its probably best to try and negotiate a more favourable settlement. Going to court should be a last resort. It involves a lot of costs, even in the small claims track. Jaw Jaw is better than war war.
When negotiating, do remember that the price other people charge for similar work is much less relevant than what the claimant actually charges for their own work. In all probability they will also claim additional damages pursuant to section 97(2) of the Copyright Designs and patents act and or Article 3 of the DIRECTIVE 2004/48/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 29 April 2004, on the enforcement of intellectual property rights and article 8 of Directive 2001/29/EC of the European Parliament and of the Council of of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society both of which say that damages must be "dissuasive".
In most cases the IPEC SCT awards damages significantly more than the normal value of the work. Suitable case law to read would be Absolute Lofts South West London Ltd vs Artisan Home Improvements Ltd & Darren Mark Ludbrook  EWHC 2608 (IPEC) http://www.bailii.org/ew/cases/EWHC/IPE ... 2608.html . In that case the cort awarded damages of £6300 awarded for images valued at £300, ie 20 the normal value of the work. I think that should be read as the upper end of the scale as the defendant was particularly badly behaved in the case.