Wedding Venue Copyright Infringement

If you are worried about infringement or your work has been copied and you want to take action.
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Satele
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Wedding Venue Copyright Infringement

Post by Satele » Fri May 24, 2019 12:19 am

Hello,

I'd be grateful for a little advice. I am a wedding photographer and I have recently come across a venue who has been using my photographs for advertising/marketing/commercial purposes without any accreditation or permission. My work has been reproduced and used on social media and their website to advertise wedding fayres/packages and most recently they have printed a large-format banner to advertise outside their venue.

I previously advised that they may share a blog post I had written with these images, providing credit was given to my business but have never authorised any form of commercial use. Naturally, I'm feeling quite aggrieved that they are using my work to promote and advertise their own, at the detriment to my business. They have also edited (cropped) my photographs for use in the large banner, which has further degraded the web-quality version they pinched from my website in the first place and devalues my work. Competing photographers have benefited from the use of my work to advertise their wedding fayres as they received invitation to exhibit and I did not.

Secondary to all of this, is the fact that this could have caused me serious issues with my wedding clients who have not consented for their images to be used in this way. Thankfully, they have been supportive of me but this could have turned out differently and the venue does not seem to have any concern about the way they have misused my couple's personal data.

I have composed a letter to email to the venue to demand that my work is removed from the website and social media as well as the large banner removed but I am unsure how I should approach this to ensure I am fairly compensated for my work and the detriment they have caused.

I'd greatly appreciate any advice.

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AndyJ
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Re: Wedding Venue Copyright Infringement

Post by AndyJ » Fri May 24, 2019 9:18 am

Hi Satele,

The extensive use of your images without permission is infringement and you are entitled to compensation in the form of damages. I suspect that the fact that you allowed them to link to your blog has been taken by them to amount to permission for the wider use. However since it appears you were clear about the terms (for instance by insisting on receiving a credit) of that arrangement, that cannot excuse their subsequent use of the images which far exceed just linking.

There are a large number of relatively recent cases with similar details to your situation in which photographers have won very substantial damages, using the IPEC small claims track. For example here and here. Additionally here is an older case which predates the creation of the IPEC small claims court, but which has very close parallels to your situation.

You don't mention if you do other forms of photography apart from weddings, but I think your best approach would be to treat this as if the venue had approached you for publicity photographs for the uses you mentioned, and work out what, hypothetically, you would have charged for this. That figure could form the basis of your claim against them. This approach avoids tying the actual value of the photographs to what you may have charged the bride and groom. The venue might well try to put forward this argument to counter your claim. That argument might run like this: say you charged the couple £1000 for photographing their wedding and supplied them with 500 images, thus each image was worth about £2, and since they only used 2 or 3 of your images, they should only pay £4-6. This, of course, is nonsense, but I would be unsurprised to hear that as a way of defending their actions. By treating it as a separate commission you can come to a more realistic figure which you would have quoted to do the publicity job. If you don't normally do this sort of work, get some quotes from other local photographers in order to gauge the current market rate.

You can then add on a percentage to compensate you for the failure to credit you and for the unapproved editing of your work. And finally you can add another percentage (say around 10-15%) for the extra time and administrative costs you have incurred by having to raise this claim. Itemise these points in an invoice and send it off to them with a covering letter explaining that if they do not settle this matter in full within 30 days you will take them to court to recover your money. You should also require them to immediately cease using your photographs on social media and in publicity for current and future events, unless they negotiate a separate fee specifically for this purpose. Tell them that failure to comply with the demand over social media use will result in you sending the platforms concerned a DMCA takedown notice, which could result their social media accounts being suspended or closed. I suggest that you do all this on paper and use snail mail rather than emails, because it is more likely to to be treated seriously at their end. You need to be very firm and business-like in your tone, so that they don't treat this in the same apparent off-hand way they have so far.

And then you must be prepared to carry out your threat. That may sound daunting, but it is something you can do yourself without needing professional legal representation. Take a look at the experience of AnnH, another forum member, in how to go about this. If they have any sense they will realise the indefensible position they are in and settle up. And if you want to put extra pressure on them, don't forget the power of negative publicity. You could mention in the letter that you are considering taking your story to your local newspaper or where ever they advertise their wedding fairs. Realistically I don't suppose a local paper is likely to want to upset its advertisers but it does no harm to sow a seed of doubt!

Good luck and let us know how you get on.
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

Satele
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Re: Wedding Venue Copyright Infringement

Post by Satele » Fri May 24, 2019 3:04 pm

Hi Andy,

Thank you so much for your very detailed reply. I have read through the links you shared and you are absolutely right that there is a lot of similarity.

If you don't mind, I have a few questions.

In my initial letter to them, should I mention the previous agreement (which was made via a short Facebook chat) that they may share the images on the blog, providing credit was given, or should I just not mention this?

Should I go to the effort of including the evidence I have of the infringement at this stage (screenshots of facebook/website use and photograph of the outdoor banner advertisement)?

The couple are keen for the banner to be removed quickly, so whilst I completely agree postal is the best route, should I also email this to them to try and get the images/banner removed more quickly? Is that likely to affect my ability to take legal proceedings?

I mainly shoot weddings and families but I do have knowledge of the commercial rate I would charge if I were interested in taking on work like this. For an unrestricted digital/web use license without attribution, this would be £350 per image and for the large format printed work, it would be more (£500). This is based on my costs and also what income the venue would be likely to receive for generating traffic/interest based on the images.

Would it be acceptable for me to message you a copy of the material I plan to send to get your thoughts on this?

I am absolutely committed to seeing this through. I normally don't mind reciprocal agreements with other wedding suppliers where there is a mutually beneficial business relationship, but this is just so flagrant in its abuse of my work that its caused me significant upset that I just cannot abide.

Thank you again for all of your help!

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AndyJ
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Re: Wedding Venue Copyright Infringement

Post by AndyJ » Sat May 25, 2019 11:03 am

Hi again Satele,

Yes, I'm sorry, I should have been more specific in my previous reply.

In the letter, I suggest that you need to briefly set out the background to the claim, in such a way that a third party would understand the situation. In particular you could refer to the email in which you gave permission for them to link to your blog on the condition that they gave you a credit. If there have been any earlier steps to get them to honour that agreement then you might also mention them. You can also throw in the fact that the bride and groom have not given permission for their likenesses to be used for advertising and this could lead to a separate claim from them under the Human Rights Act, or at the very least a complaint to the Advertising Standards Authority (see Section 6 of their Code of Practice). For this reason, you can suggest that the immediate removal of the banner may go some way to placating the bride and groom, although the matter of copyright infringement would still remain live.

I also suggest that you conclude the letter by saying that since the venue has so far made no effort to resolve this matter in a simple manner, you have no option but to enforce your copyright by raising an invoice to cover the infringing activities of the venue. You need only include such evidence as you think they will not already have access to. In other words you don't need to provide copies of the screenshots of their social media etc since they can access these themselves. You should however include the dates of the particular postings which you consider are infringing.

Since you owe a duty of care to your clients, you may wish to inform them that they can contact the ASA and make a complaint if they feel aggrieved. This is a free service. You can also tell them that, per section 85 of the Copyright Designs and Patents Act (CDPA), they have grounds for a claim for a breach of their privacy with regard to their wedding reception, which would normally be considered a private and domestic event. This in turn ties in with their rights under Article 8 of the European Convention of Human Rights, namely the right to respect for private and family life. Bringing a claim under the CDPA and/or the Human Rights Act would be both costly and time consuming and so I don't suppose they will wish to consider these options. However in your subsequent dealings with the venue, it is as well that you know about this as it increases the pressure on them to resolve the matter in an expedious manner, or face both possible additional litigation and the bad publicity.

Because this is a forum for providing general advice we don't encourage the use of private messages since that deprives the other readers of the full story. And in any case I cannot give you specific legal advice on how to conduct your litigation, and therefore I can't endorse or approve any letter you wish to send, as this would bind me to a duty of care which is incompatible with the nature of the help we try to provide here. Hence the liberal use of the word 'suggest' above. I hope you will understand.
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Fatty
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Re: Wedding Venue Copyright Infringement

Post by Fatty » Tue Jun 11, 2019 1:47 pm

I agree with most of what Andy J has said. The only very minor disagreement is that what you send is a "demand" and not an invoice. Invoices are for where the parties have agreed.

Obviously , given the position of the people depicted, you should first demand removal of all infringing material. Secondly , you want damages for the infringement.

For the level of damages, work out what you would have charged them if they asked, then add uplifts for lack of credit and flagrancy / dissuasion.

You are only entitled to a credit if you have asserted your moral rights, assuming you have then claim an extra 100% of your fee for no credit.

With regards to additional damages, you can claim extra amounts either because the infringement was flagrant ( Section 97(2), Copyright Designs and Patents Act ) and / or if it was not flagrant then simply to dissuade this infringer, and others in their position, from infringing. Dissuasive damages would be pursuant to 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 the 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.

How much to claim in additional damages is a hot theme at the Moment. The seminal case on the subject is Absolute Lofts South West London Ltd vs Artisan Home Improvements Ltd & Darren Mark Ludbrook [2015] EWHC 2608 (IPEC) ( http://www.bailii.org/ew/cases/EWHC/IPE ... 2608.html ) where £6300 awarded for images valued at £300 , ie 20x the normal value of the work. Now in that case the defendant made a lot of money from the infringement and so at 20x the claimant received a high award. In more typical claims involving the infringement of copyright in photographs, the courts seem to award figures between 2x normal value and 6x normal value.

With regards to the mutilation of your image, you can claim per section 80 CD&P Act, however the courts have been less generous with awards under this head , stating that the normal relief under section 80 is injunctive rather than damages. Having said that Emma got 50 GBP in the case cited above, so you can reasonably ask for that.

Now you do not need to put all these legal quotes in your first letter ( I recommend signed for letter rather than email ) , however if your infringer does not pay willingly, you may need to issue a small claim at the IPEC. Before you do that, you will need to send the defendant a formal Letter of Claim compliant with the Practice Direction on pre-action conduct and protocols (PDPACP), paragraph 6. This will need to set out which bits of law have bee broken and cite the above EU directives and section 97(2) for your additional damages. Most likely , your case Revolves around the following:-

Section 16 The acts restricted by copyright in a work, subsections(1a to e) (2)(3a, b),
Section 17 Infringement of copyright by copying, subsections (1,2,6),
Section 20 Infringement by communication to the public, subsections (1a)(2b),
Section 77 Right to be identified as author, subsections (1)(4a),


If they have removed your meta date, particularly copyright meta data, then you may also be able to add Section 296ZG Removal or alteration of Electronic rights management information, subsection (1)(2)

If you go for mutilation then its section 80.

Once you send your formal Letter of Claim, you give them a couple of weeks to pay and if they don't you fill in an N1 form and file it with the IPEC ( Money Claim is not supposed to be used for claims involving additional damages and so one should file on paper , directly with the court ) The N1 can be found on the Government form finder website - https://www.gov.uk/government/publicati ... cpr-part-7. You need to include "particulars of claim" , however if you set out everything in your letter of claim, you can just copy paste almost everything straight into it without any extra work.

Send all copies of the N1 form to:

Chancery Chambers,
The Rolls Building,
7 Rolls Building,
Fetter Lane,
London
EC4A 1NL

Together with a cheque for the fee £70 for claims up to £1k, £80 for claims£1k up to £1500 and £115 for claims £1500 to £3k. Higher sums see ( https://www.gov.uk/make-court-claim-for ... ourt-fees Cheque payable to ‘HM Courts & Tribunals Service’.

Dealing with court Procedure and Litigation can seem daunting the first time and so I would recommend you seek help and guidance from a photographer who has done it before, before you send your Letter of Claim. You could consult a lawyer, but your legal fees would not be recoverable under the small claims track. Once you have done it, its not as bad as it first seems and the court is informal and used to dealing with litigants in person, but be aware the admin staff have no time to provide guidance and assistance.

Following are the links to the statute law:-
CD& P Act 88 https://www.legislation.gov.uk/ukpga/1988/48/contents
Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights
http://eur-lex.europa.eu/legal-content/ ... )&from=EN
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
http://eur-lex.europa.eu/LexUriServ/Lex ... 19:EN:PDF

Intellectual Property Enterprise Court: a guide to small claims:-
https://www.gov.uk/government/publicati ... all-claims

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