Alamy demanding £500 fee for a website I developed for a customer. Please help.

[Sharpeagle]

Hi all,

I received a cease and desist email regarding copyright infringement from the person I designed a website for. The claim is not against me, but his company. I am not a website designer at all; I used to do it for a hobby and he really liked a website I designed for my family business. When I developed it, I had no idea of copyright infringement rules.

The cease and desist email is from a Danish company, copyrightagent, who work on behalf of Alamy, which I believe is a stock image website.

They have demanded the image in question to be removed and a £500 fee to be paid. As the claim is not against me, am I liable as I designed the website for this person, or does the liability fall entirely on him?

I have removed the image from his website, although I believe he has not contacted copyrightagent back. It is more than likely they will email him in a few weeks' time demanding payment. As I did everything he mentioned to do in his email, I responded saying I will accept no further liability.

Am I at all liable, or should I now leave it to him, considering I have done everything he has asked?

Any advice would be great appreciated!

Many thanks,

Sharpeagle.

[AndyJ]

Hi Sharpeagle and welcome to the forum,

If you were the person who found and placed the image on the website you designed, then yes, I'm afraid you are liable for any infringement which may have resulted. Even though you are not a professional website designer you are still strictly liable for not obtaining the necessary licence or other permission to use the image. You also owe a duty to your client under the Sale of Goods Act that the website you delivered was free of defects, fit for purpose and legal, and so he can reasonably expect you to rectify matters.

However that does not mean that you are liable for the excessive demand for £500. Under UK civil law the copyright owner is only entitled to damages which equal his actual loss through the failure to obtain the licence. That is to say the normal licence value. If the image was available through Alamy I think it is likely that the licence fee would be a few tens of pounds, and unlikely to be more than £50. You need to find evidence of the actual cost of the licence for the image, and submit a counter offer based on that figure. Since the claims company is based in Europe, they may be unaware that if they wished to sue you in the British courts, it would cost them far more than they could hope to recover since in the Intellectual Property Enterprise Court (IPEC), which handles small copyright claims, the rules say that the winning party has to pay their own legal costs (see paragraph 8 of the IPEC Small Claims Court Guide).

[Sharpeagle]

Hi Andy,

Thank you for giving me a very detailed answer, I very much appreciate it.

The client has received a message with a detailed breakdown of the image with the copyright infringement. Copyrightagent are asking for a license to be provided as they have no evidence of one being bought. If none can be given, then they say payment should be made. They have given the link to the image on Alamy so image rights can be bought. However, I think if this license is bought now, they will still pursue the £500 fee.

I know you mentioned that I owe a duty of care to my client, is it reasonable to ask him to go 50/50 on the license fee if they agree to a counter offer? As previously mentioned, I had no idea of copyright infringement and he was with me when we discussed the design of the website. Also, there is no name of me as a web designer on the website, so I assume if they did try to pursue this in court, they cannot pursue the claim against me. Is that correct?

Should I then give him this advice and then say he should contact legal advice if needed. Ideally, I don't want my client to keep annoying me and chasing me for £500. I don't want him to then to try to claim £500 through the small claims court, if that is possible. It is a bit stressful.

Many thanks in advance,

Sharpeagle

[AndyJ]

Hi Sharpeagle,

If you had obtained a licence on behalf of your client at the time the website was constructed, I assume that you would have passed this cost on to him in you invoice, so, yes, it seems fair that he should pay a precentage of any counter offer, provided that the figure to settle is closer to the actual licence fee than it is to the amount currently being demanded, which is not reasonable.

While it would be sensible to get legal advice, the cost of this will probably outweigh the £500 being demanded by copyrightagent, so it doesn't make economic sense.

[Sharpeagle]

Hi Andy,

Many thanks for your prompt reply.

He is now suggesting I contact the cease and desist company on his behalf. I have helped him out by removing the images from the website free of charge. But I don't think I should be the one responsible for messaging this company, or am I wrong? The cease and desist letter is in his company's name. I have let him know the most they can charge him is the cost of the licence.

Should I be responsible for sorting this out? Or as the claim is against his company, shall I just leave it to him to deal with it?

Kind regards,

Sharpeagle

[AndyJ]

As I mentioned earlier, from what you have told us, you and you alone acquired this image and used on it on the website. The claims company allege this was done without a licence. On that basis, you would appear to be primarily liable. The fact that the claims company don't have your details isn't really a factor in determining liability. If the matter went to court - and I stress I don't think it ever will - it is likely that your client will want you named as a co-defendant at the very least. And even if he didn't follow that route, he would have grounds for suing you to recover whatever damagers might be awarded against him. Again, I don't think this is likely, but it remains a possibility.

So when looked at that way, I suggest that it is in your interests to get an early settlement which avoids the greater aggravation and cost associated with going to court. If your client does decide to get legal advice, that advice might be to give the claims company your details and let them fight it out with you. So this could end up in your lap anyway. And for the avoidance of doubt, that does not mean that you are liable to pay the full amount being demanded. The damages which would be awarded in a defended claim in court would be determined by the market value of the licence fee which the copyright owner has lost. And not the inflated amount which is purely there to enrich the claims company.

[Sharpeagle]

Hi Andy,

I have received a response from my client.

He states:

Seeking costs of £500 for the mistake you made.
Including a photo without permission of the owner.
I had no knowledge of this photo until I presented with court proceeding of a copy right infringement which would drag my company name into the courts.
I paid you over years to maintain the website and you are responsible for this mistake.

£500 due 7 days to pay before I take legal proceedings.

He has paid copyrightagent £500 and is demanding I pay him that amount. I have spoken to friends and family members who agree this is unfair.

I guess considering your response above, should I say that I am only willing to pay half of the licence fee, which is £17.50? I have a feeling this may go to court, but I am happy to fight this case as I think it is unfair to demand £500 from me.

I look forward to your response.

Kind regards,

Sharpeagle

[AndyJ]

Hi Sharpeagle,

I need to prefix this by re-iterating this is not legal advice. And also to say that this has now moved from being a case about copyright and has turned into a matter about breach of contract and consumer protection. As neither of these are the subject of this forum, I will be brief.

The first thing to say is that by supplying your customer with the website you entered into a contractual relationship, even if nothing was put in writing to that effect. On you client's side of the equation is his expectation that you would deliver a working website that functioned as he wanted and that was free of defects which you might reasonably be expected to exclude. See Chapter 3 of the Consumer Rights Act 2015

However from your point of view, even if the website contained a defect (ie an alleged infringing image) that does not mean that the client is automatically entitled to fix the problem himself and demand that you re-imburse him for that work. The first recourse should have been to allow you to fix the problem at no cost to the client.

Even if this dispute doesn't go to court (and I really hope it doesn't) there is still a tricky problem to resolve and that is to work out your actual liability with respect to the £500 being demanded. I think you need to suggest that, before both you run up any legal bills, you should both consider alternative dispute resolution. You can find details about how to do this from your local county court, or through the gov.uk website