Copy Track

[HammerofPompey]

Recently had an interesting request for €350 to settle a claim of use of an image without a licence and €374 per annum to use it going forward, from Copy Track (CT)

The claim has come from them on behalf of Concept Productions, who claim to have been retained by the photographer.

Before giving them the details requested we asked for confirmation that the photographer had retained the services of Concept Productions (CP).

We got back an internally produced document addressed from CP through the rebranded CT, stating that they had had the rights ceded to them by the photographer (naming the right artist). It was signed by the same CP employee (they have a page on their website!) only this time claiming to be a product manager for Fotolia, ceased to exist after 2018 when it was bought by Adobe. Now it is possible that this guy has two jobs, but not for one for a company that ceased to exist over 5 years ago.

Their reply was to suggest we read their internally produced document (produced after our request for proof) that they claim shows they hold the rights (nothing from the photographer). signed by themselves!

Also included in the "proof" was the name of the file that they claim was used unlicenced and it was indeed from Fotolia.

The image itself is available on most stock image sites, including being found on other stock sites that have been subsumed into others.

As it happens the image was (I was assured) licenced by by developer at the time as she had a few subscription imagery sites - but she was murdered (genuinely) nearly three years ago and strangely enough it is proving difficult to get evidence from beyond the grave.

Currently we have pointed out, without admitting to the difficulty of proving this image was licenced by her, that the licence is available from Adobe Stock for £1.90 on a subscription model (current developer holds this) and as a free download from stock site under their "trial" membership.

So we have dismissed the exaggerated and excessive claim going forward (we have relicensed through the Adobe Stock option, though not actually told them to date) and explained given that we could simply change images - it is generic.

As for the demand for us to prove the licence, we have once again pointed out we need definitive proof of the photographers ceding to CP rather than an internally produced, self-signed document, especially given the number of mal-actors out there and reminded them that the licence they claim we haven't paid for is £1.90 of which the photographer doesn't get the agreed commission. We have not admitted liability, nor made an offer to settle (thereby admitting liability), while we await the "proof" they have asked for. The ridiculous thing is that if they'd asker for £30/50 I'd have paid it! I have said that if they were to proceed to legal action we would vigorously defend our position.

Throughout we have stated we will continue to assist/act pleasantly as we seek settlement, despite their repeated bullying/threats of court action

What I am looking to confirm is:

• Court damages are limited to the loss - ie the cost of the licence makes good the loss

• What damages can added in court

• Can admin costs be added and what is actually reasonable if so

• Confirmation or otherwise that the photographer is the only one who can bring a claim

• Examples of IPEC ruling in these circumstances

Ideally looking for references to statutes or case rulings to help my confidence that I have this right

BTW, the Copy Track process for registering as an artist/uploading images seems extremely suspect. An artist can register and upload 500 images (for free), which are then put through a reverse search. The artist get 45-55% of any money raised - I'm guessing from those who were scared by teh bullying tone, not those willing to fight ridiculous charges. However, it seems there is no check on the artist, nor that they own the IP. One blog post on the subject reports a guy who uploaded the BBC logo, who was then told that CT had found a potential breach on the BBC website!

Cheers

[AndyJ]

All your BTW points at the end are why we encourage people to challenge these claims companies. Some companies are indeed sketchy and don't do any due diligence, which encourages chancers to sign up to use their services. This is a world away from genuine photographers like members snappman and Fatty on this forum who have every right to get angry about how their work is frequently infringed. Individual freelance photographers who take cases to court will get a sympathetic hearing, but such cases are rarely helped by the scare tactics and unreasonable demands which the claims companies use.

Anyway, turning to your specific points:

1. Civil claims are mostly based on the commonlaw and equity. That is to say I can't point to a specific statute which says that the fundamental purpose of civil damages is to put the claimant into the same position, financially speaking, as he or she would have been in if the correct transaction to obtain a licence had occurred in the first place. The commonlaw can be modified by statute law, and this happens within the Copyright Designs and Patents Act, for example, in section 97(2) which makes provision for additional damages to be awarded where an infringer has behaved flagrantly or has made excessive profits from his infringing act. I can't 'prove' that my second sentence above is what the commonlaw says, and you would need to consult some weighty (and costly) legal authorities to see the principle expounded authoritatively. So in the mean time, let me direct you to a document which succinctly backs up my point. It's a pdf entitledIntroduction to Civil Proceedings in England and Wales and has been put together by a reputable law firm called Hogan Lovells. You need to turn to page 11 of the pdf (internal numbering page 9) and read the second paragraph under the heading Remedies. You could also carry out a google search using something llike "principles of civil damages in the UK" to come up with many other similar statements from other law firms. However make sure that any site you look at is talking about the law of England and Wales, not Scotland or the USA, where different rules apply. Also try avoid descriptions which refer to personal injury or medical claims, where of course it is less likely for there to be a financial loss, so damages are calculated differently.

2. As I've already mentioned, in copyright infringement cases additional damages may be awarded if a claimant can satisfactorily prove flagrancy or unfair profits made by the defendant. In the latter case, the standard procedure is for the claimant to ask for an account of profits rather than damages. This approach allows the court to take in account any profits made as a direct result of the infringing act. To take an example, say an infringer used 12 high quality images he found on a photographer's website and printed them up into wall calendars, each of which sold for £10 and he sold 2000 of the calendars. An account of profits would calcuate all the profit made after printing costs etc were deducted, and award this amount to the photographer.

3. In answering this question we need to know whether the basic amount claimed is under or over £10,000. If it's under then the case will be assigned to the small claims track of the Intellectual Property Enterprise Court (IPEC) and special rules will apply. Over £10,000 and the case will most likely be tried in the main IPEC court, unless very large sums in damages or more complicated legal arguments are involved, in which case the matter may go straight to the Chancery Division of the High Court. Since we are generally speaking about claims under £10,000 I can point you to the Guidance Notes for users of the IPEC Small Claims Court. You need to scroll down to the heading Costs Recovery where you will find the following:

Costs recovery

The general principle that an unsuccessful party will pay the legal costs of a successful party does not apply to IPEC SCT claims. Instead, the successful party will usually only be entitled to the costs set out below:

- fixed sums in relation to issuing the claim
- court fees, including the hearing fee
- reasonable travel or out-of-home accommodation expenses for a party or witness attending a hearing
- loss of earnings or annual leave of a party or witness for attending a court hearing, limited to £95 per day for each person
- in proceedings that include a claim for an injunction, a sum for legal advice and assistance relating to that claim, not exceeding £260
- not more than £750 for the fees of any or each expert that the court has approved in advance

Any further costs the court may decide after the hearing, may have to be paid by a party who has behaved unreasonably. A party’s rejection of an offer of settlement will not by itself constitute unreasonable behaviour but the court may take it into consideration.
[for the sake of clarity I have omitted the references to the Civil Procedure Rules and Directions; you can find them in the original]

4. See section 96 CDPA. It's a little terse. A court would invariably want to hear evidence in person from the copyright owner if there was any dispute about ownership. Note that the copyright owner is not necessarily the author of the work. For instance a staff photographer working for a newspaper would not be the owner of copyright in photographs which he took in the course of his employment; his employer would be the first owner. Any transfer of ownership of copyright has to be in writing and signed by the owner (section 90 CDPA). It's important to distinguish between bringing a claim to court and authorising an agent to pursue civil demands outside of litigration. The latter can be quite informal.

One last point. You mentioned not having made an offer to settle. An offer to settle is not in itself an admission of liability. It can be motivated by wishing to quickly resolve the issue in a manner which suits both sides. For example in many other sorts of claims it is quite normal for a large organisation or company to settle without admitting liability just because it is cheaper for them than to have their legal teams tied up in long drawn-out proceedings over relatively trivial claims.

[HammerofPompey]

Many thanks - very useful indeed. We continue to engage, specifically saying we are being helpful, just that we need proof, not a post dated internally produced document stating the artist has ceded the rights to Copy Track, before we can send the information they "require".

I too dislike how honest photographers have their work "borrowed"!!! That said accidents/errors occasionally happen, records can get lost and stock sites can close down, be subsumed....

Yesterday I site I host, but don't have anything else to do with got a cease and desist notice for the use of a logo - despite the fact that the owners sponsors an event they run and the logo has been used with their knowledge for several years, just the brand protection agent sems not to know. The logo is down while the position is clarified.

Had Copy Track asked for £30 or a cease and desist/take down and not threatened legal action we'd have paid it, but the ridiculous demand for €350 pa going forward for an image that could be purchased from adobe stock for £1.90 is nothing short of a joke

Will read the references with interest.

Tnks

BTW, the image in question of raw prepared chicken is on a site for a Free Range Turkey Farm (Xmas Turkeys) - they have sold 2 chickens in total!!, one of which was refunded (cancelled most likely). If anything that have made a loss not profit from the related product!