Escalating copyright infringement claims

[Smudger]

In a journalistic career of more than 50 years, I have for the last 12 years been publishing and editing my own news and information website covering a particular industry sector. It's an online trade magazine, if you like. So, I am well aware of copyright laws and have pursued others for breaches of my copyright or, at least, have sent take down requests and cease and desist notifications to those who have infringed my work.

In the course of work with my current website, I purchase many photo library images – mainly from two leading libraries and mostly through monthly subscriptions or download packages. We probably use, maybe, 10-20 such images per month from these sources. So, potentially there could be as many as 3,000 library images on the website.

I fully accept photographers' rights to pursue those who infringe their copyright. However, in recent months we have experienced a growing frequency of companies, claiming that images on our website may be infringing a clients' copyright. These also appear to be from companies using simple reverse image searches, possibly using automated bots, to send what appear to be random demands to anyone who has published their client's image.

Our experience is that the image creators behind the demands are supplying them to more than one library – sometimes multiple libraries. It seem to be a random catch all, like casting a huge net without any regard to the fish you might be catching.

The administrative work involved in providing the necessary proof of license is not without its time cost. For one or two a year, it's not a problem but, with up to 3,000 images on our website, I am concerned that an escalation of these copyright infringement claims will rapidly become an administrative burden.

To counter this new time-consuming threat, we have now decided to introduce an administrative fee. For anyone claiming a copyright infringement, we will now tell them which library we acquired the image from but ask for a refundable fee as a deposit for us to provide their demanded licence information. We promise to refund the deposit and consider their breach of copyright demand should we be unable to provide the necessary licence confirmation.

In reality, we know immediately which library the image came from by the way we code them, so any justification to their copyright claim would be immediately flagged.

I was wondering whether other forum members have similar concerns and how they deal with them?

[AndyJ]

Hi Smudger and welcome to the forum,

Although I am aware that this problem exists, this is the first time I have heard of an individual or company being targeted more than once or twice, to the point where it has become so problematic that it requires the sort of defensive action you have outlined.

I, too, would be interested to know how much of a problem this is generally. It would also be interesting to know if any particular photographers / picture agencies are among those alleging copyright infringement. In the case of agencies, they should be reported to their trade body, BAPLA, since they should be aware that some of their contributors place their photographs with more than one agency, and conduct their anti-infringement processes accordingly.

[Smudger]

Hi Andy and thanks for your response.

To clarify, it's not a great problem yet, but with the number of library images on our website and the fact that we have now received three such infringement claims in the past month, I foresee it becoming one.

The last two have been from Copytrack who use AI and automated reverse image searches. It appears to be a completely automated scattergun approach to the problem. It's a bit like doing your weekly grocery shop and a week or so later one or other of the food suppliers contacting you asking for proof that you have paid for certain purchases. It's annoying and time consuming.

I complied with Copytrack's first claim but with the most recent claim (last Tuesday) I have told them from which library the image was obtained but have asked for a refundable administrative deposit in order to supply them with proof of licence. I have not heard back, yet.

I should also add that I also acted as the club photographer at a top football club for 45 years, so am well aware of the problems that photographer's suffer with people ripping off their images.

[Smudger]

UPDATE: Just received yet another. That's four in the last month.

[AndyJ]

Hi Smudger,

As I am sure your are aware, this has very little to do with copyright or protecting the photographer's interests, and is more about these claims companies making a profit based on few overheads and seemingly no system in place to check if these images are concurrently being made available with a licence from other agencies apart from the one which hired them. Obviously their reverse image search will reveal that information. They hope that people will be either too scared or too busy to argue, and will just pay up.

[Smudger]

Had an email exchange yesterday with the copyright holder, the photographer, for one of the images we are being pursued for for confirmation of a licence.

It appears Copytrack use AI and simple image searches to provide him with a list of all the web pages where his particular image appears. Any uses where he doesn't recognise the client using the image, he asks Copytrack to chase. This, he says, would include any images that may have been sold through image libraries where a credit has not been included. He suggested I include one.

Of course, this I could do, but with 3,000 images on the website this would take a huge amount of time. Also, it is no proof that the image has actually been licensed and paid for and, while he uses the inclusion of a byline as confirmation of payment, I'm not sure others would.

The most recent demand relates to an image which we actually used in 2017. Slightly worrying was that when I searched the image library for the image it was no longer there. Even worse, it didn't appear in my record of downloads. Checking with the library, it appears the image was deleted from its collection shortly after I purchased it. It seems an image deleted from the library also deletes it from your download list. Luckily, they still have a record.

[AndyJ]

Hi Smudger,

Thanks for the added detail. I assume that the image which you acquired in 2017 is still in use on your site. It is arguable that the statutory limitation period of 6 years would prevent a copyright owner from taking any action even if you weren't able to produce evidence of your licence.

And of course unless the licence in each case stipulates that a credit is required, you are under no obligation to provide one, just to make it easier for a photographer to track his work.

[snapperman67]

Over the last few weeks, I have been investigating your claims regarding statue of limitations regarding copyright - I have spoken to an IPEC judge, a couple of senior copyright barristers, our own solicitor, our trade organisation etc, all agree that the statue of limitations starts from the point of discovery of the infringement - not from when the infringer publishes the image. As several of the above also stated, your argument is largely 'moot' given that most infringers 'conceal' the infringement by doing the following:
- change the file name
- remove/alter the meta data
- resize the image
- flip the image
- crop the image
- montage the image with others etc.
Given the several very large IPEC small claims judgements recently for such behaviours, infringers now risk substantial awards against them. One case in point was an infringer who used a £350 valued image who was hit with a £4200 judgement for use on their Facebook page by Judge Obadai last year.

[AndyJ]

Hi snapperman,

Thanks for this information. Since the IPEC small claims resgistry moved to Manchester I have not kept up with the outcome of more recent cases. The Ministry of Justice used to publish statistics about the number of claims and details of awards made, but as far as I can tell they no longer do this for the IPEC small claims track, so it is hard to know the current state of things. And of course without knowing the details of each case, for instance whether the defendent actually put in a defence, anecdotal reports often involve outliers.

Based on the postings we get here, I think your characterisation of 'most' infringers is a little unfair. Frequently, the people we hear from are in the wrong, but have taken no steps to conceal their infringement for the simple reason that they don't understand that they have done anything wrong. Clearly where an infringer has tried to conceal their actions, that can amount to flagrancy and justifiably attracts additional damages. Obviously I don't know what percentage of overall infringing is carried out by people in a similar position to our contributors, but my instinct tells me that they represent a large proportion.

[snapperman67]

having spoken to over 30 photographers recently who actively monitor their IP (images) - I would say over 90% have stated that the file names had been changed and the meta data of the file was completely stripped from the infringed images. Most web designers are complicit in that they know about copyright but advise their clients that there is 'little or no chance' of them being caught. Apart from the aforementioned 'tricks' to avoid detection, many websites hide their API so that reverse search engines cannot track images easily or at all. Facebook, Instagram and Flickr have recently changed their API policies and many images that could not be reversed searched previously are now becoming visible.I have sympathies for those who have been caught out by Creative Commons licenses but my general advice to any one publishing a website is to have written permission from the copyright owner before publishing. Judges are becoming increasingly tired by the 'not knowing ' or 'I found it on google' defence. The dissuasive up lifts from the original loss of income claim are now becoming very common and range from typically 50% to 500% depending on the judge and circumstances. True Pixsy rarely ever brings a case to court in the UK but there has been a sizeable increase by individual creatives since IPEC admin was moved from London to Manchester (admin at the Rolls building was appalling - Manchester is super quick). Coupled with the fact that creative individuals can now easily file cases online at their local IPEC court using Efile - infringers need to be aware that the chances of a court filing are now quite high.