Sorry, this is yet another PicRights post.
I promise I've read every single word about them on the entire forum though, I know all the general advice but unfortunately not sure the same applies as I think this one is a bit different.
My Dad is a semi-retired tradesman in his late 60's. He received a similar email as many others have regarding 'Unlicensed use' of an image. This one is on behalf of Redux Pictures Llc though rather than Reuters as most others seem to be.
They want a 'settlement payment' of almost £2,000! I think the reason it's so high is because the image in question is of a celebrity and taken by a seemingly fairly high profile New York based photographer.
The website was built by a 3rd party who chose the images. My Dad doesn't have any way of controlling his website even if he had the tech skills to do so (he definitely doesn't!). The celebrity isn't even relevant to his business, it's only on the About page because my Dad worked at a venue that they've appeared at.
I thought we were in the clear after we contacted the web designer because he says he's got a license, but it wasn't from Redux. He got the image from wallpapers.com which seems to be a legitimate site (very professional looking, single word domain name, you can signup/login to your account via Google & Facebook etc). On the wallpapers.com page for the image in question it clearly states "License type: Free". And he had a Premium Plan so that 'No attribution required'.
But after looking into it further I'm worried that wallpapers.com don't actually have the rights to offer a license for the image. And after reading a bit more about copyright law I'm guessing that the web designers good faith and my Dad's absolute lack of knowledge isn't good enough.
Also PicRights have helpfully added notes to the bottom of their email, one of which states: "You may have been unaware that this imagery was subject to copyright. However, copyright infringement can occur regardless of knowledge or intent. Being unaware of licence requirements does not change liability."
I totally understand that it's not the photographer/image sites fault if another site is distributing their image illegally. But equally, if the web designer got it in good faith - even paying for it! - from what he believed was a reputable website, how on earth was he, let alone my Dad supposed to know that the image was in fact copyrighted by somebody else? There's no watermarks or any other way of knowing this. Even a Google Reverse Image search doesn't show the Redux site, and of course wallpapers.com is the top result.
Would that really not make any difference if it went to court? Is it really not reasonable to assume he had paid for the right license under those circumstances even if it was incorrect?
My Dad doesn't have much money but would be willing to pay something to avoid the matter being escalated further.
But unfortunately I can't follow the excellent advice offered to others about finding the true value of the image elsewhere to submit a counter offer. It's not available from any other stock photography sites and was very difficult to even find it on the Redux site.
I did find it eventually find it on there by searching for the celebrity in question and browsing all their images but there is no price. It just states: "SPECIAL FEE APPLIES. PLEASE CONTACT REDUX PICTURES FOR DETAILS"
Do you have any suggestions as to what sort of an offer to make? Or at least how to come up with a more reasonable figure?
And do you think it will make any difference that he's not a big business, just a small sole trader and/or that he's semi-retired? £2,000 just seems absolutely crazy, I don't think he even paid £500 for the entire website so obviously would never have used a £2k image had he been aware of the true cost.
Thanks for your time and I would really appreciate any help that you may be able to offer.
Not JUST another PicRights post, promise!
Re: Not JUST another PicRights post, promise!
Hi y2flame, and welcome,
Yes, you are right, the normal tactic won't work here. However, I think your father is probably in the clear. Mere ownership of the website does not automatically make him liable when there is clearly a third party who is responsible, albeit in good fath, for the image being on the website apparently without a valid licence. Whether that third party is the web designer or wallpapers.com remains to be seen.
In view of the large amount of money at stake here I suggest that your father would be well advised to get legal advice. He needs to speak to a solicitor who has experience with Intellectual Property law. You can find someone relatively local to you/your father by going to the Law Society website and choosing Media IT and Intellectual Property from the drop down list headed Your Legal Issue, and then put in your area. Choose someone from the results which come back who will give your father a short free consultation in which he can outline the issue. Your father or you can then decide if you want the solicitor to handle the claim on your behalf, based on his/her estimate of the costs involved. If your father is a member of a trade union, or the Round Table, Rotary Club etc, he may be able to get free legal advice, which might also be available through his business insurance. However if this is the case, you still need to speak to someone with Intellectual Property law expertise, as the average High Street solicitor will tend not to specialise in this area of the law.
Just so you have some background on what I hope your solicitor will say, Your father was effectively authorised to use the image by the action of the website designer who was acting either as your father's agent or in a contractual capacity in which he warranted that the images were all properly licensed. Section 16(2) of the Copyright Designs and Patents Act 1988 says that copyright is infringed where someone else authorises another person to carry out an act of infringement. Your father is thus, at most, liable for secondary infrngement (section 23) by possessing or dealing in an infringing copy. This isn't as bad as sounds, because there is a defence to this section which is that he did not know or have reason to believe the image was an infringing copy. This defence means that the only remedy available Redux Pictures with respect to your father is that the image is taken down from the website and deleted, which I imagine you have probably already done. PicRights will then have to go after the web designer or wallpapers.com
As you can see this is a fairly complicated matter and so this is why I think a couple of hundred pounds spent on a solicitor might be money well spent.
Yes, you are right, the normal tactic won't work here. However, I think your father is probably in the clear. Mere ownership of the website does not automatically make him liable when there is clearly a third party who is responsible, albeit in good fath, for the image being on the website apparently without a valid licence. Whether that third party is the web designer or wallpapers.com remains to be seen.
In view of the large amount of money at stake here I suggest that your father would be well advised to get legal advice. He needs to speak to a solicitor who has experience with Intellectual Property law. You can find someone relatively local to you/your father by going to the Law Society website and choosing Media IT and Intellectual Property from the drop down list headed Your Legal Issue, and then put in your area. Choose someone from the results which come back who will give your father a short free consultation in which he can outline the issue. Your father or you can then decide if you want the solicitor to handle the claim on your behalf, based on his/her estimate of the costs involved. If your father is a member of a trade union, or the Round Table, Rotary Club etc, he may be able to get free legal advice, which might also be available through his business insurance. However if this is the case, you still need to speak to someone with Intellectual Property law expertise, as the average High Street solicitor will tend not to specialise in this area of the law.
Just so you have some background on what I hope your solicitor will say, Your father was effectively authorised to use the image by the action of the website designer who was acting either as your father's agent or in a contractual capacity in which he warranted that the images were all properly licensed. Section 16(2) of the Copyright Designs and Patents Act 1988 says that copyright is infringed where someone else authorises another person to carry out an act of infringement. Your father is thus, at most, liable for secondary infrngement (section 23) by possessing or dealing in an infringing copy. This isn't as bad as sounds, because there is a defence to this section which is that he did not know or have reason to believe the image was an infringing copy. This defence means that the only remedy available Redux Pictures with respect to your father is that the image is taken down from the website and deleted, which I imagine you have probably already done. PicRights will then have to go after the web designer or wallpapers.com
As you can see this is a fairly complicated matter and so this is why I think a couple of hundred pounds spent on a solicitor might be money well spent.
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
Re: Not JUST another PicRights post, promise!
Hi Andy,
Thank you so much for taking the time to not only read and respond but in such detail too.
As I've read a few others say I've no idea what you get out of giving your time to help but I very much appreciate it.
I know you can't talk specifically about the outcome for us but your words are very reassuring all the same. I'm going to take your advice and heading to the Law Society website right now.
I'll try to come back and keep this thread updated in case it helps anybody in a similar position in the future.
Thanks again.
Thank you so much for taking the time to not only read and respond but in such detail too.
As I've read a few others say I've no idea what you get out of giving your time to help but I very much appreciate it.
I know you can't talk specifically about the outcome for us but your words are very reassuring all the same. I'm going to take your advice and heading to the Law Society website right now.
I'll try to come back and keep this thread updated in case it helps anybody in a similar position in the future.
Thanks again.