Image copyright infringement letter sent from French law firm

[RebeccaS1980]

Hi there,

Hope you are well. I was looking for some advice please. I run a small blog in the UK. It's non-profit and very much a hobby. It covers all kinds of popular culture, from film and art to politics. I received a letter from a French law firm recently about the "Regularization of the online use of a Photograph". They represent a French photographer and say one of their photographs was used in a blog post years ago without license. Which mistakenly it was. They say their client holds the exclusive worldwide copyright to the image and if I can't offer up a valid license, they are asking for regularization for unauthorised use. They say I have a week to respond and to forward the notice to my attorney.

Obviously I don't have legal representation, nor do I have any money, or have ever made any off the blog itself. Any advice on how to deal with this worrying matter would be seriously appreciated!

Thanks in advance,

Rebecca

[AndyJ]

Hi Rebecca and welcome.

As it's quite late as I write this, I won't go into all the details as you can find them by looking at some of the other threads on this forum. Look for the ones which mention Pixsy or Permission Machine/Visual Rights Group. Although these are intermediary companies who persue claims on behalf of picture agencies and not legal firms, the principle is much the same: if these lawyers make a claim which is disproportionate and unrelated to the actual market value of a licence which is or was available for this photograph, then you have every right to decline to pay the full amount, and instead make a counter offer to settle based on that true market value. You can and should insist that they provide evidence to back up their client's clain to be the owner of the copyright, and also request that they provide a complete breakdown of the figure they demand. Remember under the rules for small claims (that is, under £10,000) in the English courts, you would not be liable for any legal costs associated with raising the claim against you. You are not going to be sued in the French courts so their laws and procedures with regard to copyright are irrelevant.

[RebeccaS1980]

Hi Andy,

Thank you so much for your reply. It is very much appreciated. It gives me a good idea of the action to take moving forward. I'll also go through more threads today as you suggest to build up a better picture of the typical process.

Just one more follow up question to your reply if that's ok? You mentioned our English small claims court. If it did come to it, would they be able to take me to small claims court in the UK? Not sure of how these things work. Especially with the firm being based abroad.

I probably also need to find a tool or bit of software that might be able to look through my blog to see if there are other images that might bring up potential issues. But I am always very careful when it comes to appropriate crediting/not using images that need a licence.

Thanks again.

Kind regards,

Rebecca

[AndyJ]

Hi Rebecca,

If they wanted to sue you over this infringement they could so in either the French courts or in the UK. Both have disadvantages for them The French court has no jurisdcition over you and if you chose not to engage with the French proceedings the claimant would then need to get the judgement enforced in the UK. This is much more difficult, is time consuming and expensive to do, now that we are no longer in the EU. And you have an opportunity to oppose the enforcement proceedings in the UK on the basis that the French court failed to provide you with a fair trial. While you might ultimately lose, it would still very expensive for the claimant to pursue the claim and his legal costs will far outweigh the amount of damages being claimed.

If they chose to go direct to the UK court they would have the extra expensive of using British lawyers to fight the case here, and as I mentioned, the rules of the Intellectual Property Enterprise Court small claims track mean that they couldn't get back their legal costs from you, and all you would liable for are the damages the court awarded against you along with some court fees of around £100. It would cost the claimant several hundred pounds more than the damages they could possibly win just to mount the case.

I am somewhat glibly talking about this as if there is little or no risk for you and that is not the case. There is a risk that if it goes to court in either country it might be expensive for you, it will certainly be stressful and you might feel the need to get some professional advice along the way which will obviously be more expensive still. But this is a game of poker and I believe you have a very strong hand. What you need to do is convince the French lawyers that you have a strong hand and that full blown litigation through the courts will hurt the claimant more than it will hurt you, and that they should accept your fair and reasonable counter-offer to settle the matter. Either way the French lawyers get paid so hopefully they will advise the client to accept the counter offer and move on. Sadly some litigants fight on on a point of principle even though it costs dearly to do so. They don't make very good poker players.

[RebeccaS1980]

Hi Andy,

Thank you so much for this! I can't tell you how much this helps. Really good of you to take the time and it has made me feel much less worried about the whole situation.

Kind regards,

Rebecca

[RebeccaS1980]

Hi Andy,

Sorry to come back with yet another question. I promise I won't take up any more of your time after this one! It was just because after looking through the forum and considering your own replies I was thinking of just not engaging with the firm who sent the letter. Would this be a crazy course of action in your eyes?

And if things did escalate (which of course I really hope they don't), what would potentially represent the worst case scenario here?

Thanks so much again for all the help.

Kind regards,

Rebecca

[AndyJ]

Hi Rebecca,

The down side of not engaging with the claimant is that if the matter were to go to court at a later stage the other side may claim that your behaviour during the early stages was unreasonable. Frankly that woouldn't be that significant if the case was being heard in the French court as all the cards would be stacked against you anyway. But if the claim was brought in England and Wales, the Court (that is to say the Intellectual Property Enterprise Court Small Claims Track), might be persuaded to accept an additional claim for a proportion of the claimant's legal costs to be awarded against you - see the highlighted part of section 8 of the Guide to the IPEC Small Claims Track below:

8.Costs Recovery

The general principle that an unsuccessful party will pay the legal costs of a successful party does not apply to IPEC small claims track claims. In the IPEC small claims track there are only very limited circumstances in which the court will order one party to contribute to the costs of another (CPR 27.14). These include:

•fixed sums in relation to issuing the claim;
•court fees (including the hearing fee);
•expenses which a party or witness has reasonably incurred travelling to or from a hearing or staying away from home for the purpose of attending the hearing;
•loss of earningsor loss of leave evidenced by a party or witness caused by attending a court hearing, limited to £90 per day for each person (PD 27 para 7.3);
•in proceedings which include a claim for an injunction, a sum for legal advice and assistance relating to that claim, not exceeding £260 (PD 27 para 7.2);
•such further costs as the court may decide at the conclusion of the hearing should be paid by a party who has behaved unreasonably. A party’s rejection of an offer of settlement will not of itself constitute unreasonable behaviour but the court may take it into consideration (CPR 27.14 (3)

(The reference to CPR means the Civil Procedure Rules, and PD means Practice Direction. As their names imply these rules govern how tthe court conducts its business.)

However, if you have made a counter-offer which is reasonable and is based on exactly the same argument as you would use in your defence in court then it is not necessary to continue dealing with the claimant beyond a reasonable point, especially if they continue with a disproportionate claim. Clearly haggling after a certain point becomes fruitless and it is perfectly justifiable to disengage from the process of trying to reach a settlement. You are in effect calling their bluff. But I think it is better to tell the claimant that you do not intend to engage with them after you have received their (standard and automatic) refusal to accept your counter offer, rather than leave things dangling in mid air.

As for the worst case, I think that would be if the case was heard by the French court. Because you didn't appear or engage with the court* there would be a default judgment against you, and the amount of damages could be whatever the claimant asserted they were, plus the court is most likely to award the claimant all his legal costs. That could be a hefty sum. As I mentioned, that judgement would then have to been enforced in England and Wales. That means an English court would have to make an additional order saying that French judgement was valid. Before doing this, you would be invited to put your case for why the French judgement should not be enforced, principally on the grounds that you could not have expected to get a fair trial in France due to the differences between the French and English systems with regard to copyright law. It's too complicated to go into here, but the French approach to infringement as much more than just rectifying a civil loss (which is the English approach) and would seek to punish an infringer by awarding additional damages. And as I have said, the French system would automatically award the winning party their legal costs on top of the punitive and economic damages. If you failed to convince the English court that the French judgment should be set aside, you would then have to pay not only the original amount but also the additional costs of bringing the enforcement action (because the enforcement claim would not be a copyright matter handled under the IPEC procedures, but a money claim in the District court).

While that all sounds extremely bad (and serious) you have to set against it the risks for the claimant. He has to fund all the litigation in France up front and then has to do the same in the UK courts. This could run into thousands of Euros and pounds - all for what? A two figure licence fee which is at the heart of the claim. Such a claimant would have to be very confident of winning at every stage and be immune to the stress and delay of such a course of action. No sane freelance photographer is going to want to go to those lengths. However you also need to factor in the irrational and enraged claimant who is hell bent of justice at any cost, on whom economic arguments are lost!

If you are still undecided on what to do, I am duty bound to suggest that you speak to your own solicitor and don't make an important decision just based on what I have said here. This isn't legal advice. This some facts about the law and how it operates plus a good deal of well intentioned supposition about what might happen next. If you decide to consult a solicitor, make sure that he or she has some experience in Intellectual Property law. Find out if it's possible to have a free short consultation, before paying out large amounts which negate the value of any advice. You can find someone appropriate for this through the Law Society's website: Just scroll down to the legal issue: Media, IT and Intellectual Property here


* Of course you do have the option of engaging with the French court. Most likely the hearing would be conducted by video link with an interpreter so you wouldn't have appear in person. And you would still need to convince the French court that you should only be liable for the cost of the normally available licence at the market rate of a few tens of pounds. However even if the court accpted this argument (and I am not at all sure they would because the ethos of French Copyright law is centred on the honour of author, rather than the economic approach of UK copyright law) you would still be landed with the claimant's legal costs in bringing the claim. While you could then default in paying the court debt, it could be enforced against you in the English courts much more easily because the judgement would have been made after taking your defence into account.

[RebeccaS1980]

Hi Andy,

I just want to say thank you again for your reply, well for all of your replies In fact I really appreciate the time you've spent to give out such excellent advice on the matter. You clearly are a font of knowledge on these things. I've taken on board everything you've had to say and now feel much better equipped to handle the situation.

Thanks so much,

Rebecca

[George H]

Hi Rebecca, I read your post here. I am almost in the exact position. Can you let me know how you got on and may be who the company was as it sounds too similar and almost exact. Your help will be much appreciated