Retrospective copyright infringement claim

[Bibbetybob]

If a photo was used quite innocently (there was no reason to believe and nothing to indicate at the time that it was subject to copyright) in a blog post back in 2010 and the photographer subsequently in 2013 signed a contract with a stock photo agency for the exclusive license distribution of that image, does that stock photo agency now have the right to pursue you for copyright infringement if you don't have a licence for that photo? I strongly suspect not but would appreciate some case history/legal facts to back up my response!

[AndyJ]

Hi Bibbetybob,

Assuming that the image is still there on the blog and available for anyone to access, then infringement is still continuing. The act of infringement is not just based on the date the image was first uploaded.

However if the image was removed from the blog post before the photographer signed with the stock agency, the agency has no standing to bring a claim even if it has evidence of the earlier infringement. The photographer who took the picture would be able to bring a claim relating to that earlier period, or indeed any time up to the present. Since the statutory period of limitation for copyright infringement is six years, and you say that the first posting occurred in 2010, the copyright owner is not time-barred, even if the infringing image was taken down almost immediately after first being put up.

If the matter went to court, the entire period the image was/has been used without permission would form the basis for calculating damages. Hopefully it won't get that far, but assuming this isn't a hypothetical case, you can expect any settlement offer to be based on the same usage period.

And unfortunately, it doesn't matter if the use of the image was innocent. Primary infringement is a matter of strict liability, which means that the intention or knowledge of the person who copied the image without permission is irrelevant for the purposes of determining liability.

[Bibbetybob]

Many thanks for your reply Andy. Unfortunately (for me), the image was only removed when I received the letter from Stockfood with their extortionate demands which was after the date on which the photographer signed the contract with them. However, the use was not 'flagrant' as defined by the Copyright, Designs and Patents Act 1988 and there has been no financial benefit whatsoever to my small business from using the image. It was a small resolution image used to illustrate an informative blog post about Christmas and there are thousands of such images freely available on the internet from which I would have chosen if I had been a little less naive 5 years ago.

Under the legislation and according to the legal advice I have received, it is my understanding that damages would be limited to putting the claimant back into the position they would have been in should the image have been obtained through the correct channels. I have no problem with this and have made an offer on that basis having gone through Stockfood's pricing calculator online for the photo. It amounts to around £140. They however rejected that offer and have sent me an email which they say serves as a pre-court letter before they file an application with the small claims track of the Intellectual Property and Enterprise Court in 2 weeks time. They are seeking to recover infringement detection and collection fees, post use licensing fees etc etc which amount to a couple of thousand pounds. They are using heavy handed tactics and it amounts to bullying and extortion. They have made no attempt to reach an agreement with me and their behaviour in this matter is totally unreasonable.

I guess I just have to sit it out and see whether their threat to take action is carried out. But as a small business owner I don't have funds for a battle in the courts and I quite honestly find it unbelievable that they are intending to go down that route anyway considering the image and the circumstances in which it was used :-/

[Nick Cooper]

Bibbetybob, you may want to review this previous thread, which also involved Stockfood, from the first post by Gprit onwards.

[Bibbetybob]

Many thanks Nick. Yes, remarkable similarities there! I have this morning had a reply from a legal specialist who advises that seeing as the image was included in a blog post in 2010 and Stockfood only signed the contract with the photographer in 2013 they have no right to pursue me on his behalf unless there is express agreement in the contract to that effect. Obviously the photographer retains that right. Looking at the document they sent at my request, no such agreement exists. So I shall be telling Stockfood to go forth and stick their case where the sun don't shine. I will further be advising them that should they continue to hound me I shall consider taking action against them under Section 40 of the Administration of Justice Act 1970 and Section 1 of the Malicious Communications Act 1988 which prohibits the "harassment of debtors with a view to obtaining payment including the issue of letters which convey a threat or false information with intent to cause distress or anxiety."