Hi
I have found many businesses using my photos on the internet, some of
the infringements go back 10 years (wayback machine).
Most have removed my watermark, some have cloned out things or flipped
images.
My questions are:
How do I price for the usage if a business has used a photo
for 10 years, can I invoice at 10 times an annual fee ?
How and what % would I charge for flagrancy ?
I do not license my photos so what would be an acceptable fee ? I have
looked at the NUJ rates for online use and they seem very high.
Any advice would be greatly appreciated.
Small Claims Track Court
Hi James,
Let's take the second part first. If you wanted to take the matter to the small claim court then it is important to have a clear rationale for the damages you would want to claim. As you, presumably, do not have a track record for the sort of fees your work has commanded in the past, the only way to do this which the court is likely to accept, is to use generic fees, such as the NUJ rates, or stock agency figures. Secondly, since some of the alleged infringement goes back over 10 years, you will need to adjust the fees to reflect the changes in generic rates over that time, but you can also add in interest for the notionally unpaid elements. You might want to get some specific legal advice if you have any doubts about what rate to use. Here's an example of a hearing in a copyright case where the main dispute was about the level of damages.
As for flagrancy, your argument should be based on two separate strands. The first is the attitude of the businesses to your initial claim. For example if they acknowledge your claim and take down the offending images (assuming they are still available) promptly then that element will fall away. However if they continue to use the images after having been alerted to the infringement, then that would certainly be a factor in determining flagrancy. But the second element, and possibly the more relevant in your case, is the fact that you say your watermark has been removed. This would certainly be classed as flagrancy. But you need to be reasonably sure that the companies you intend to go after were actually responsible for the removal of the watermark. If they claim they obtained the edited images from a third party (no doubt they would say, 'in good faith') then you may have a harder job establishing their liability for that element of the flagrancy.
However before all that, it sounds as if you just want to invoice them and see what happens. As far as the fees are concerned, you can use exactly the same approach, ie using generic industry rates, as you would for litigation. Flagrancy isn't something you can invoice for directly and obviously if the companies concerned do argue that they weren't responsible for the editing, that's not something which can readily be resolved by an exchange of letters. I would suggest that you leave that 'threat' hanging in the background, as something the defendants can expect to face if the matter does have to go to court. In your letter before action, you can say that you reserve your right to ask for damages for flagrancy if the matter goes to litigation. Once you get beyond the invoice stage, it would be sensible to head your correspondence 'without prejudice' as this then means you can't be held to the figures quoted in the earlier stages, if at a later stage you need to increase the amount claimed in proceedings. For instance as an alternative to claiming what you have lost through fees not having been paid, you can ask for an account of profits instead, which, in simple terms, means the amount which the defendants have profited by using your images. Obvously this is not an approach which you can easily apply with an invoice.
Despite all the references to going to court, assuming that you meet resistance from some or all of the companies involved, you may be better off using some form of alternative dispute resolution, such as mediation, instead of suing. You can get some details of the services offered by the IPO here.
More advice here, and for a photographer's own story of his battle with infringers, see here.
Let's take the second part first. If you wanted to take the matter to the small claim court then it is important to have a clear rationale for the damages you would want to claim. As you, presumably, do not have a track record for the sort of fees your work has commanded in the past, the only way to do this which the court is likely to accept, is to use generic fees, such as the NUJ rates, or stock agency figures. Secondly, since some of the alleged infringement goes back over 10 years, you will need to adjust the fees to reflect the changes in generic rates over that time, but you can also add in interest for the notionally unpaid elements. You might want to get some specific legal advice if you have any doubts about what rate to use. Here's an example of a hearing in a copyright case where the main dispute was about the level of damages.
As for flagrancy, your argument should be based on two separate strands. The first is the attitude of the businesses to your initial claim. For example if they acknowledge your claim and take down the offending images (assuming they are still available) promptly then that element will fall away. However if they continue to use the images after having been alerted to the infringement, then that would certainly be a factor in determining flagrancy. But the second element, and possibly the more relevant in your case, is the fact that you say your watermark has been removed. This would certainly be classed as flagrancy. But you need to be reasonably sure that the companies you intend to go after were actually responsible for the removal of the watermark. If they claim they obtained the edited images from a third party (no doubt they would say, 'in good faith') then you may have a harder job establishing their liability for that element of the flagrancy.
However before all that, it sounds as if you just want to invoice them and see what happens. As far as the fees are concerned, you can use exactly the same approach, ie using generic industry rates, as you would for litigation. Flagrancy isn't something you can invoice for directly and obviously if the companies concerned do argue that they weren't responsible for the editing, that's not something which can readily be resolved by an exchange of letters. I would suggest that you leave that 'threat' hanging in the background, as something the defendants can expect to face if the matter does have to go to court. In your letter before action, you can say that you reserve your right to ask for damages for flagrancy if the matter goes to litigation. Once you get beyond the invoice stage, it would be sensible to head your correspondence 'without prejudice' as this then means you can't be held to the figures quoted in the earlier stages, if at a later stage you need to increase the amount claimed in proceedings. For instance as an alternative to claiming what you have lost through fees not having been paid, you can ask for an account of profits instead, which, in simple terms, means the amount which the defendants have profited by using your images. Obvously this is not an approach which you can easily apply with an invoice.
Despite all the references to going to court, assuming that you meet resistance from some or all of the companies involved, you may be better off using some form of alternative dispute resolution, such as mediation, instead of suing. You can get some details of the services offered by the IPO here.
More advice here, and for a photographer's own story of his battle with infringers, see here.
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
Thanks for your reply Andy.
The epuk page you link to are the letters I used 12 days ago to make contact
with the first 6 infringers.
Five have taken down the photos and two have replied back, the other one has not replied or removed the photos.
Would my next step be to send another letter to those that have not replied asking where they obtained the photos or send a without prejudice invoice ?
I asked the question about flagrancy charges after reading another page on the epuk website.
The writer claims "I charged and got a 75% uplift on my usual rates for their blatant dishonesty".
If the infringer wanted to go to court would the photographer have to take off this 75% before going to court ?
As I have only one post on the forum I can't link to the page.
The epuk page you link to are the letters I used 12 days ago to make contact
with the first 6 infringers.
Five have taken down the photos and two have replied back, the other one has not replied or removed the photos.
Would my next step be to send another letter to those that have not replied asking where they obtained the photos or send a without prejudice invoice ?
I asked the question about flagrancy charges after reading another page on the epuk website.
The writer claims "I charged and got a 75% uplift on my usual rates for their blatant dishonesty".
If the infringer wanted to go to court would the photographer have to take off this 75% before going to court ?
As I have only one post on the forum I can't link to the page.
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Lumberjack
- Experienced Member
- Posts: 81
- Joined: Fri Jan 15, 2016 8:40 am
- Location: UK
This may seem like bad advice, but I would just ignore it! By pursuing it, you will probably suffer a lot of stress, and possibly not get anywhere either! A lot of my photographs have been used without my permission, but I look on it as a bit of "free advertising!" I suppose you could always use some of their photographs. They would hardly have any defence for it, as they have used yours! 
Al