Image used on website

If you are worried about infringement or your work has been copied and you want to take action.
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shinerbock
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Image used on website

Post by shinerbock » Thu Apr 14, 2016 12:34 pm

I am an amateur photographer who posts images on Flickr (marked as 'all rights reserved).
I recently found that one of my photographs has been used on the website for a hotel for over a year.
As I would like some payment, I have two questions - firstly, is it worth pursuing, and secondly, who should I approach - the hotel owner, the creator of the website?
Any advice appreciated.

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AndyJ
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Post by AndyJ » Thu Apr 14, 2016 2:08 pm

Hi shinerbock,

Yes, it is certainly worth seeking a payment for use of your image. I assume the hotel is in the UK. If it isn't then you may need to be a bit more persistent, but it is still probably worth it.

I suggest the first thing to do is work out what fee you want to charge. If you already have set rates, use them, otherwise, you could try the NUJ guide for freelances. Once you have decided the rate, you need to decide whether your want to issue a renewable licence, where an annual fee is applicable for the use which has already been made, and the coming and any subsequent years, or a simple one-time fee, based on how long you think the hotel are likely to want to keep using the image for. Or you could propose both options and let the hotel choose which they prefer.

Then email or write to the hotel explaining the situation and asking to be remunerated. Make it clear that you are the owner of the copyright and that you have not at any stage given permission for your image to be used. As you indicate, it may well be that the hotel are unaware of the infringement and may blame the website creator. However as they are the ones using, and thus benefiting from, your image, they are the correct target for your claim. If they have a a dispute with the web designer, that is for them to sort out. Keep your correspondence neutral in tone and at this stage there is no need to make threats. However it would be sensible to indicate that you would like the matter resolved within a reasonable timeframe, say 30 days. You could of course include an invoice with your initial letter, but this limits room for negotiation over the future use of the image, so I suggest you initially set up a dialogue, then ask if they would like you to submit an invoice for the past use, and another for the coming 12 months.

If the hotel either fail to respond or refuse to acknowledge that they owe you the fee demanded, you have the right to issue a takedown notice to whoever hosts their website. You can either use the DMCA format, or base a notice on the UK's Communication Act 2003 format*. The former is clearer and more widely understood, although the latter is more appropriate if the hotel is located within the UK. This may have the effect of focussing their mind on the matter, and should at least mean that the infringement has ended. However you still need to continue with your claim. A second letter can be much more strongly worded, and could even be headed 'letter before action', but realistically, I'm not sure it would actually be worth you proceeding to litigation, if the fee demanded is only for a couple of hundred pounds or thereabouts.

Good luck

* Strictly speaking the provisions of section 124A of the Communications Act 2003 only apply to ISPs. However Regulation 18 of the Electronic Commerce (EC Directive) Regulations 2002 (which implements the EU eCommerce Directive) authorises the use of take down notices to be used against any service provider or hosting service, while s 124A Communications Act provides a useful guide to the information which should be provided.
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

shinerbock
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Post by shinerbock » Thu Apr 28, 2016 1:24 pm

Hi Andy

Many thanks for the advice, and sorry for the delay in responding.

NUJ rates for the use of the image would amount to £400 per year, so would you recommend sticking to the guidance figure and claiming £800 in total? I'm sure they wouldn't want to renew a licence - the hotel website seems to be full of uncredited, 'stolen' images - so I'll attach an invoice to the original email.

Thanks again for the help.

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AndyJ
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Post by AndyJ » Thu Apr 28, 2016 4:54 pm

Hi shinerbock,
That sounds like a good course of action.
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

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