I have just received a legal notification from a solicitor stating that I am in breach of copyright due to the fact that their client owns the exclusive copyright, utilisation and publication rights of one of the previous photographs, and I have violated these rights by using the photograph on my website. The solicitor does not appear to be aware that the picture is no longer on the website and has demanded that my URL is completely removed and the photograph is no longer displayed. They have also asked that I complete a cease and desist declaration.
What is most concerning is that they are demanding damages and costs of £4580 for this infringement which is split as follows:
Damages for breach of copyright for 1 image: £1890
100% uplift for failure to mention the author/source (breach of moral rights): £1890
Incurred solicitor's fees: £800
The letter was dated 31.05.18 but I have only received it today in my workplace. The deadline for their demands including payment is in 2 days time!
The solicitor has not provided any proof of ownership of the copyright of the image. I am also unable after all these years to confirm if there was any copyright at the time the photo was uploaded to my website.
I did also wonder about the authenticity of this letter and the demands but have not as yet cross checked with the firm. What is also noticeable is that the photograph depicted as the one that has caused the infringement is not exactly the same as the one previously on the website, although it is that of the same couple.
Any advice on how to deal with this situation would be highly appreciated.
I think you are right to be sceptical and suspicious about this letter. While the law firm and the allegation of copyright infringement may be bona fide, the amount being demanded sounds more like what is colloquially described as copyright trolling. And you should certainly resist paying the whole amount demanded, even if you feel morally bound to make some recompense.
Given the amount involved, I strongly urge you to speak to a solicitor, or failing that, to Citizens Advice. They can respond to the claimant in a more convincing way than you can do unless you are prepared to mug up on the law to come up with the sort of phraseology which will deter them from pursuing you further. Inevetably such trolling schemes rarely get to court because the companies involved (including some otherwise reputable law firms) have, in the past, earned the disapprobation of the courts due to their methods and wholly disproportionate demands. Just to take a simple example from the letter your received, it is highly unlikely that a court would order the same amount of damages for an infringement of moral rights unless it could be shown that you removed an existing photographer's credit. The right to a credit has to be asserted and unless you were made aware of such an assertion (for instance due to a copyright notice on the image), you would not ordinarily be liable for infringing that right (see section 78 of the Copyright Designs and Patents Act 1988). And of course the amount of the demand for the actual alleged infringement seems unrealistic, especially if it is not related to a period of time during which the infringement is allged to have occurred. Clearly a fee of one pound per day for a proven period of 1890 days of infringement might be justifiable, but a one-off figure of £1890 seems disproportionate. Of course there probably are law firms which charge £800 just to write a letter, but again this fee sounds wholly disproportionate. And bear in mind that if the claimant wanted to take the matter to the IPEC small claim court and won his case, he still would not be entitled to get back any of his legal fees.
Thank you so much for your reply.
Before speaking to a solicitor, do you think it is worth contacting this law firm to ask for evidence of copyright ownership of this photograph? As it stands now I am not even sure that I have committed a copyright infringement as I only have their word for it.
The original letter was also not addressed directly to me - it was sent to the hospital I work at. Is there any merit in asking the hospital administrator to respond saying that they have nothing to do with the website?
Taking your second point first, this information tends to reinforce the suggestion that this is a speculative venture, rather than one based on a sure factual basis. One can only wonder at the motive for contacting your employer when, presumably, you are identified by name on your website which is the subject of the alleged infringement. If the intention was to cause you embarrassment or professional reputational damage, then this opens a completely separate can of worms. However, if your website only contained an NHS email address without any alternative contact details, this might explain the reason why the hospital, rather than you, were the initial point of contact.
From what you have said, I am assuming that your website is hosted on a separate server and in no way forms a part of the hospital's website. If I am wrong and the hospital website is effectively hosting your personal page, then they do have certain responsibilities in law regarding the content of your pages. In these circumstances, as long as the hospital trust remained unaware that there might be infringing material on their site, they were not liable for any alleged infringement (see Regulation 19 of the ECommerce Regulations 2002 (SI 2002/2013). However once they have been notified, they have to act expeditiously to remove any such content in order to maintain their immunity. Since the disputed image has already been removed, in this scenario the hospital is technically in the clear, although they remain an 'interested party'.
If your website is wholly unconnected with the hospital's, then as the letter was not addressed to you, I think it might be worth asking the hospital administrators (or their lawyers) to write back in the way you suggest, but I suspect that this will only buy time rather than bringing the matter to an end.
And returning to your first point, it would probably not hurt to ask for some evidence about the copyright ownership, especially as you mentioned in your earlier posting that the two images involved may not actually be the same. I assume that as you have already removed the disputed image, you don't have a copy to compare directly with the image which it is claimed you have infringed. This puts you at something of a disadvantage as you will be relying on your memory of 'your' image, whereas the solicitors will probably have a screenshot of it. On that basis, it might be advisable to ask them to forward a copy of the screenshot as well as the image which it is alleged you have copied. If they have already suggested that legal action may follow, you can remind them that the pre-action protocol requires them to provide all this identifying information, along with the ownership details as a matter of routine. Clearly your tone in the letter should be as neutral and non-commital as possible at this stage.
The fact of the matter is as stated in paragraph 3 ie the website is not connected with the hospital. In view of this I have requested the administrators to send a letter as stated. Whether this would deter them in any way remains to be seen.
Regarding the photo in question, they have in fact included the screenshot in the letter depicting the previous image that was portrayed as well the picture (different from the one on the website but of the same couple in another pose) they claim I have infringed the copyright of.
I am veering towards putting this matter in the hands of a solicitor as you had initially suggested. However I am also tempted just to do nothing for the time being and see if they send any further correspondence. Would there be any detriment to the latter course of action in your opinion?
On the question of doing nothing, much depends on how they worded their letter with regard to the deadline which you mentioned. If they threatened to start court proceedings in the event that you did not respond by that date, then I think it would be unwise to do nothing, as inaction at this stage might count against you if the matter were actually to go to court at some later stage.
Use the Law Society website to find a solicitor who specialises in intellectual property law and is located reasonably close to you.
In the case of a professional photographer, they earn their living by selling Licence and to do that, they will need to be displayed somewhere, most likely on their own website or on the website of a photo agent. If the images are nowhere to be found then alarm bells should ring. Conversely if they are to be found on the photographers website then its more likely to be genuine. Also the mere fact that the images are displayed on a website with the copyright holders name on them is proof that they are the copyright holders.
It sounds strange that the photograph you had on your website is different from the one the claimant says was infringed. Your claimant needs to get his story straight. Could the differences be due to editing such as cropping or is this a totally different image ? They need to show they are acting for the copyright holder of the image that was on your website.
The area where I would disagree with Andy J is the amount for missing attribution. 100% on price is a very common amount for no attribution, indeed its so common its near industry standard and many photographers happily licence their images for use without attribution at 2x the attributed price. It has nothing to do with whether you removed the name, if you didn't credit the copyright holder they can claim. If you removed the name then they would most likely claim extra on top for Flagrancy.
The other point about attribution is as Andy J says, the copyright holder must assert this right, however where I disagree with AndyJ is that it is not necessary for you to have seen this assertion. For example, if the image was originally on the photographers website with an assertion and then copied to a third party website from where you obtained it ( eg Google images ) the original assertion would still cover it and the copyright holder entitled to his or her attribution.
As for the amount of the actual claim, 1890 GBP, I cannot say whether this is totally unreasonable or very reasonable, it all depends on what the copyright holder would have charged you if you had Licence the work instead of infringing it. There are some photographers who licence works for a few pounds and others who charge thousands for a single use. You need to know what your claimant would normally charge.
It has now been almost two months since this letter was sent and I have not yet had a reply. I’m not sure if this means that they have withdrawn the case or are in the process of plotting further legal proceedings.