2nd infringement, any advice?

If you are worried about infringement or your work has been copied and you want to take action.
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hberr
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2nd infringement, any advice?

Post by hberr » Mon Feb 12, 2018 12:02 pm

Hi there, I'm new to the forum but have been reading posts over the past week after discovering a recent infringement of my images, it's the second time this has happened with this particular company. I'm looking for a little advice if possible. It's a bit of a long story:

I *used to* run my own website, it sold a mix of products. One range of items came from a designer in Australia. I should add that they wholesale and retail the products on their own website and across other online selling platforms and have a very strong social media presence.

When I received items from them, I photographed them for my website and Etsy and to promote on social media etc. Although I am not a professional photographer I did take classes at college and university and I am capable of styling and taking my own photos to a decent standard. I also invested in various styling props, a new camera, lighting and an Adobe Lightroom package for the job. My photos turned out nicely and I was happy with them and my little business started to do quite well. The items in question became one of my best sellers and all seemed well.

Some time later in March 2017, I received an instagram notification on my phone. I saw that somebody had commented on one of my photos. I recognised the name as being the wholesaler that I ordered the products from and I noted that they had commented on one of my photographs of one of their items. Oddly, by the time I opened the photo in instagram, the comment had been deleted. I thought perhaps this was due to an instagram glitch and was worried they might think I was ignoring them if I didn't respond so I just sent them an Instagram direct message to ask if they needed anything. I didn't get a reply so assumed all was well and forgot all about it.

A few days later, I was doing some experimenting with Etsy to check if my products were showing up in search results. I saw my photograph appear in the search results and clicked on it, only it wasn't actually my listing, it was a listing by my wholesaler and they were using my images. I looked through their account and discovered one or two more. I was shocked because I had not been asked permission and I had not sent them the images and here they were, competing with me at retail level on Etsy using my own photographs.

This presented me with a real dilemma because I enjoyed selling their products and they had become one of my best sellers. I didn't want to lose the product and compromise my business but I also felt angered that they would do this and knew it was very unfair. I agonised for hours over the wording of my email and finally sent it. It was very gently worded and stupidly, I suggested that it was probably a mistake on their part and implied that I was sure no harm was intended but asked them to remove the images and informed them that the copyright belonged to me.

They replied and apologised and said the images would be removed at an unspecified date in the future when their 'website girl' was in. They told me they had found the images on Pinterest and that the photographer wasn't credited which is why they had not credited me. They said they couldn't provide me with a link for the image source because they had lost it. At first I kind of accepted that response because I wasn't sure what else to do and I was worried about damaging my business with any further questions. Although I wasn't happy that they didn't seem to be in a hurry to correct the issue and had kind of brushed me off.

But then I remembered the instagram comment. So their story about not knowing the identity of the photographer just didn't add up because the comment had been on one of the very photographs that they were using! They could have contacted me easily via instagram. At this point I felt that they were lying to me and potentially had no intention of taking me seriously. So I replied stating that I would like the images removing straight away and mentioned the instagram message. I also advised them that they should not be using ANY images found on Pinterest because it is not a free image bank and they were in breach of copyright by doing so.

At this point, things got heated. They sent me some very emotionally charged messages, they were quite insulting and kept saying things like 'this happens all the time, you need to let it go' - even telling me that people had stolen their work quite frequently. This irritated me further because I couldn't believe that as professional creatives, they would then do the same to their peers when they very well know how it feels and the damage it causes. I kept replying to confirm my stance on the matter. At the time, my grandmother was dying and I found it all very overwhelming and became quite depressed. I told them that given what had happened and the way I was spoken to, I could no longer buy any more stock from them. They agreed to take the photos down and we parted with them apologising, not because they felt they had done anything wrong but because they had not handled the situation gracefully they said.

I (stupidly) trusted them and needed to move on. I tried to find another supplier but after a few trials, couldn't find anything suitable and eventually, I had to close down my website and work on other things.

Fast forward to Thursday 8th Feb 2018. I am browsing Instragram when I spot one of my photos. It's an old photo of one of their products and I get a sinking feeling and click on it. Sure enough, they are using my photos to promote their products online again. I look through their feed: more of my photos. I look through their facebook page, again more of my photos. To ad insult to injury, a follower asked where in the UK they could buy the product. They replied and gave the name of another UK stockist! I look on Etsy, more of my photos and also all over their website. I have taken screenshot of everything. In total, they have around 12 different photographs of mine which they have used accross their website, Etsy, FB and IG as far as I can see. Just by looking at Etsy I can see they have made plenty of sales where they have used my images.

I have written a complaint to Etsy and I have contacted the wholesaler direclty through their instagram account. They didn't reply for a few days and I thought they weren't going to reply but they did start to delete photos on IG so I knew they had read my message. I got in touch again and told them that given our past exchange on the matter and because of the severity of it that I was intending to bill them. They ignored this and simply replied apologising for using my images and told me it was a mistake by a young girl they employ to handle instagram. I advised them to train their staff RE copyright and advised that I wished to send them screenshots of all the examples I had found so they could remove them and also so I could send them a formal bill for infringement. She again ignored my mention of billing them and simply told me to send her the photos via instagram and did not supply the email address I requested. I refused and demanded an email address which they have now supplied.

If you have gotten this far, thank you so much for reading! My questions are:

1. Do I have a strong case to request payment?
2. Can anyone point me in the direction of a decent billing template as legal wording isn't my forte?
3. Again, any links to or advice on how I should price my 12 photographs?
4. Is my case compromised in anyway because the photographs are of their products? (which they wholesaled to me)
5. Would I be right in suggesting that my entire business was damaged due to their actions or should I just stick to the copyright infringement?

Thank you!

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AndyJ
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Re: 2nd infringement, any advice?

Post by AndyJ » Mon Feb 12, 2018 6:56 pm

Hi hberr,

You story sounds depressingly familiar. The attitude of 'it's on the internet or Google or Instagram so I can just take it and use it' is all too common, but as you say, one would expect better of a company dealing in a copyright-related world.

So to come straight to you questions.
1. Yes, you have a good case but pursuing it with a company based in Australia will make it trickier. Australian copyright law is pretty much the same as the law in the UK but they don't at present have a small claims route for bringing claims there. You can commence a claim in the UK and ask the court to declare it has jurisdiction to hear the case as the goods concerned are being made available for sale in the UK, therefore the 'harm' to you is occurring here. However unless the Australian company has some physical presence here (which I'm guessing they don't) they can just ignore the proceedings and although you would get a default judgment in your favour, you have very little chance of enforcing the order for damages without incurring quite a lot of extra (and probably unrecoverable) costs in the Austalian courts.

2. I don't know of any specific billing templates of this sort. There are apps (sorry don't have specific names of products) for this or there are more fully featured software packages like fotoQuote but since the latter cost several hundred dollars, it wouldn't be financially viable to get one simply for this task.

3. The best I can suggest is the NUJ Freelance Guide. Some of the quoted fees for online use are possibly for unique or highly skilled photography as they are quite high. Certainly the NUJ rates don't accord with the typical rates found on stock sites like Getty or Shutterstock. The bottom line is product shots don't command particularly high fees (unless they are full-blown commissioned adverts for glossy magazines) so for your 12 images the basic total might be under £1000, although due to the flagrant re-use, maybe this figure could be doubled.

4. No, it makes no difference what the subject of the photographs is, so long as you used sufficient creativty and personal skill to create them, copyright will exist.

5. While that may have been the outcome, I don't think you can say that the infringement caused it. It was your decision to no longer deal with the company, albeit based on their treatment of your initial claim.

While I am not that optimistic about your chances of bringing a claim which will actually result in you recovering fees for this infringing use, you should the DMCA takedown process on all the sites where you have discovered infringing images. This will cost you nothing but may have the satisfying effect of disrupting those businesses or individuals who are benefitting from this infringement.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

hberr
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Re: 2nd infringement, any advice?

Post by hberr » Sun Feb 18, 2018 9:01 pm

Hi Andy,
Thanks so much for your input. I've done rather a lot of reading and digging and found that the company appears to trade from both Australia and the US but is registered in the US - I placed my stock orders through the Australian office hence why I thought they were based there initially. After going through their sites I found that more than 11 of my images were in use and I also realised that this is actually the third time they have used this set of images without my consent and the third time that I have had to contact them about it so as you say, it is indeed now a flagrant infringement. And they don't have any defence. It's made me feel pretty determined to make them pay up, especially as they themselves are designers and have supposedly been the victims of design theft in the past. I've issued them with a 'letter before action' and requested the removal of all images and I have also issued them with an invoice that I have been extremely fair about given the circumstances. I've looked into taking legal action and it seems feasible since we often visit that part of the US for my partner's work and we have a lot of contacts there. We'll see what happens, I'll try to keep you posted. Thanks again.

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