Images in a book

If you are worried about infringement or your work has been copied and you want to take action.
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AdamT
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Images in a book

Post by AdamT » Sun Apr 07, 2019 4:43 pm

Hi
A large publisher used 3 of my images which are available online and published them illegally in a book.

In 2015 I have received email from the publisher in which they ask my permission to use my images.
I have informed them that the cost of one image would be £40.
They informed me that they cannot pay that much.
I have asked them how much they can pay?
They answered that that they cannot pay anything.
In 2018 I have found by accident that the publisher used my images in their book.
The publication was illegal because I (the copyright owner) have not given permission for the publication and I was not paid anything.
I have contacted Head of Publishing of the publisher and I have informed him about the copyright infringement. First he offered me £40. Next I have informed about the copyright infringement corporation which is the owner of the publisher. Head of Intellectual Property offered me £250 for all three images (£83.33 per image).
I have not accepted those offers because I do not think it is fair. The publisher removed my copyright notice and did not provide any information that I am the author of the drawings. Moreover, I have wasted a lot of time dealing with this copyright infringement.

I have contacted some lawyers and it seems that legal cost of simple paperwork would be around £550 and in case of court proceedings around £3000. As I understand even in case of winning the publisher would only have to pay around £500 of those costs. In short the legal costs are relatively high and possibly higher than the potential damages.
This means that the legal actions is not economical and the publisher will remain unpunished.
Please advise me what should I do?
How I can minimize the costs?

I am planning to publicize this case. Do you think that this can be effective?

Regards
Adam

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AndyJ
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Re: Images in a book

Post by AndyJ » Sun Apr 07, 2019 7:02 pm

Hi Adam,

Since you have been negotiating with the publishers I suggest that this is the most productive and cheapest route to follow first. Even if you and they cannot agree to a settlement, it might be worth taking the matter to mediation, which again is going to be cheaper and less stressful than going to court.

You need to decide exactly what damages you are seeking, both for the use of the images, and for the infringement of your moral right to be credited as the author of the images. The fact that your copyright notice was removed from the images may well be grounds for additional damages as the courts tend to frown on such flagrant behaviour. On the matter of the value of the image use on its own, you may face difficulty in saying that the damages for infringing use should be higher than your original offer fee (£40 per image) since this represents the market value of the images at the relevant time. You should resist the temptation to inflate the usage fee in order to punish the bad behavoiur of the publishers - that's what addittional damages (see section 97(2)) are designed to do, if a court became involved at a later stage. As a guide, the damages for infringement of your moral rights might well start at the same figure as for the image usage, then doubled for flagrancy. As an example, the usage damages might be £120 (3 X £40), plus £240 for the infringement of your moral rights uplifted for flagrancy, and an admin fee of 10%, giving a total of £396.

Having arrived at a total figure for damages, you should go back to the publishers with this breakdown and offer them a second chance to settle. If that fails, suggest that you both take the matter to mediation. If the publishers agree, all well and good. If they refuse to settle or to go to mediation, you then face the decision over court action. The important thing is to get the message across that you know the strength of your position legally and that you are determined to see the matter through.

You do not need legal representation to bring a case in the small claims track of the IPEC. There are two fellow members here who have gone down that route, so you could read their threads to gain an insight into how easy/difficult it is to bring the case yourself (here and here). If you do decide on this option, the only costs* you face are the court fees, which are recoverable from the publishers if you win your case.

And yes, never underestimate the value of publicity in embarassing large companies. Even if you just want to encourage your fellow artists to defend their intellectual property rights (see links below) then write a short article about your experience and submit it to a magazine or online forum for publication. And of course we would love to have any update reports you care to submit here on CopyrightAid. Take a look at these two cases successfully brought by a photographer
(here and here) as they bear many similarities to your situation.


* This is possibly an over-simplification, as your will incur a certain amount of cost in putting your case together, as well as travel expenses and lost wages in order to attend the court in London. The latter two costs are also recoverable from your opponent, if you are successful, and in certain circumstances the court has awarded reasonable expenses incurred by a litigant in person in preparing their case.
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

AdamT
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Re: Images in a book

Post by AdamT » Wed Apr 10, 2019 12:47 pm

Hi
Thank you for all the information and advice.
It is unlikely that I will represent myself in small claims court because I live in Poland and travel costs would be relatively high.

If damages are only three times higher than the cost of an artwork it is in the interest of dishonest publishers to publish the artwork without payment because the probability of detecting the copyright infringement is relatively low.

I will try to inform others about this problem. Please let me know if it is safe to use explicitly the name of the publisher when I describe my case of copyright infringement.

I have contacted the book distributors (including amazon.com) and asked them to stop distribution of the book. In response the publisher declared that they withdraw the book from sale. However, so far there is no effect and it is possible to buy the book at many websites.

Regards
Adam

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AndyJ
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Re: Images in a book

Post by AndyJ » Wed Apr 10, 2019 2:23 pm

Hi Adam,

Being in Poland does make a dfference but theoretically you could bring a claim in Poland if the book is available there - which it obviously is because of the internet. However I have no idea how difficult or expensive it would be to start a case in the Polish courts.

As for the wider issue you raise, there is an EU Directive on the enforcement of intellectual property rights which mentions that where apppropriate, courts may award damages which include an element of deterrence (see Article 13 and Recital 24 here), "where the infringer [-] knowingly, or with reasonable grounds to know, engaged in an infringing activity". The UK's courts are beginning to apply this approach here, but it is by no means universal practice. I have no idea how the Polish courts treat such blatant infringing, but you may find that greater damages might be available there.

If you want to name and shame the company concerned, be careful to state only those facts for which you have documentary evidence to support, and if you want to express an opinion about the behaviour of the company, make it clear that this is just your honestly held opinion. Generally speaking, just outlining the facts in a neutral way is usually all that needs to be done in order for reasonable people to form the same opinion as you without you needing to explicitly express your thoughts or opinion. Try to be balanced in your write up, if necessary by quoting the exact words of any reply the company have given you in answer to your complaint. Even if there had been a genuine mistake in using your images originally, your readers will no doubt form their own view on whether a reputable and efficient company should be making 'mistakes' of this sort in the first place, and when the mistake came to light, whether they did everything reasonable to correct the mistake and make amends.

Good luck with your venture.
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

AdamT
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Re: Images in a book

Post by AdamT » Sat Apr 13, 2019 8:49 am

Hi
Thank you for all useful information.
I will carefully consider the option of legal help from Poland. This option will be less expensive.
I will let you know if I will make any progress.
Regards
Adam

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