Stockfood

[Bewildered]

Has anyone else had a stockfood demand letter regarding unauthorised use of images? Can anyone advise outcomes? It is a ridiculous charge for a single thumbnail image but I only have a few days left to make use of the early settlement offer, also a ridiculous amount but nowhere near as unaffordable as the whole amount and I seriously do not want a legal battle. Help?

[AndyJ]

Hi Bewildered,
I assume you've done a search on the forum. The subject of Stockfood demands has come up more than once.

[Bewildered]

Hi Andy,
Thank you for the reply. I can only find 3 threads on here and none of them say how the matter was resolved. I really wanted to get an idea of outcomes. Do you have any further information on a stockfood issue?
Thanks

[AndyJ]

Hi Bewildered,

Other than what has been discussed here on the forums, I have no first hand experiience of these claims by Stockfood or their outcomes. However it is evident that Stockfood is one of the more active agencies in this regard.

If you are having problems with them, I suggest you contact Citizens Advice. They have a helpful webpage dealing with this sort of claim. They may well have had previous dealings with Stockfood claims.

Have you seen this forum which deals with similar claims in the USA?

[pizanim]

Hi Bewildered,

I just received a similar letter yesterday from Stock Food and came across this forum. In my case a webmaster just put a picture with copyright on our website and we didn't know anything about it. I was just wondering if you managed to solve your case or if you have to pay the money they were asking for? In our case the are asking us to pay £689.

I would appreciate any help.

Thanks a lot in advance.

[Sue D]

Hi,

I have had a saga rumbling on for over 12 months. In a nutshell they threatened me and wanted £1550 for a small photo inadvertently added to our website by an employee. After ignoring it for months, it eventually ended up with them serving a notice via IPEC on us. Their case was flawed in many ways and they did not follow the correct procedures required and they did not answer any of the questions posed in a timely manner for the court case. They had also dropped their claim from an unlikely £1550 to £374 + £50 court fee...at least this figure could be worked out from the license fee for use on a website.

I was prepared to fight them but eventually received a letter before the hearing saying that:

1. The request for judgement is refused.
2. The Proceedings be stayed pending service of the Particulars of Claim.
3. The hearing on xx November be vacated.
4. This order is made without a hearing etc

Since then I have received Particulars of Claim from them so not sure what happens next? Presumably back to court?

[AndyJ]

Hi Sue,
Yes. assuming that you have sent your defence in reply to the claim back to the court, normally the next step would be for the parties to meet at court, usually for a Case Management Conference. However if you live some distance from London this can be done via a telephone conference call. Very straightforward cases that go along the small claims track (which is what I would expect with this claim) can go forward without a CMC and can even be decided on paper without the parties needing to attend court. However that would be at the discretion of the judge and would depend on the complexity of the claim and defence, and whether the court has all the information it requires. It rather sounds from StockFood's earlier efforts this may no apply in your case.

When you received the Particulars of Claim you should also have received a response pack which includes details of what you need to do and what will happen next. The fact that you are asking about it here makes me think that you might not have received the pack. It is the claimant's responsibility to send it to you and if they haven't then yet again the court will get upset with them. If you have got the response pack you need to draft your response and return it to the court within the time specified or else you may find a default judgment is recorded against you.

You don't need to be legally represented in court but obviously it is a significant advantage to have the right legal advice. If you feel you cannot afford the cost (possibly reaching £2-3000 overall) then you should contact the new Pro Bono team who can advise you for free. You can find more details about this in my post here. The main thing is not to delay or hope that the whole thing will go away. If you put up a good defence and show you mean to defend yourself, there is every likelihood StockFood will withdraw their claim before the actual hearing if they perceive that they might lose.

[Sue D]

There was no response pack included, only the Particulars of Claim hence why I am not sure what happens next. Do they have to resubmit to court or can the resurrect the original claim?

I'm fed up with it really, if they had requested a reasonable amount in the first place I would probably just settled but the amount demanded was ridiculous.

I do live far away from London which makes it awkward and the costs of representation do not make it a viable option (£300 vs £3000). I do resent what they are claiming for:
£155 Standard License Fee
£155 Violation of Moral rights
£65 Infringement Detection Fee
Interest as calculated by the court
court costs (which I believe is £55)

I'm not sure they will withdraw the claim but it seems like a lot of work for the amount they are claiming.

[AndyJ]

Hi Sue,

The Particulars of Claim should have been served within 14 days of issuing the Claim Form which sounds as if that has not happened given the intervening developments. The response pack should have been sent with the Claim Form, but in any case it is available from the court. However as the Particulars seem to have been served out-of-time, I'm not sure whether the court would be willing to let matters proceed as if this was a normal service of claim. I suggest you contact the Judge's clerk to find out what his understanding is of the status of the case. His contact details are adam.wilcox@hmcts.gsi.gov.uk, but if you would prefer it, I can pm you his phone number.

At the very least you want to make sure that Stockfood don't get a default judgment against you because you have failed to meet the correct deadline. Also I would strongly urge you to contact the Pro Bono Service as they can probably take most of the stress off you.

Just two other points: as you live some distance from London you can request that any CMC is conducted by phone - the Judge's clerk can tell you how this works. And secondly the claim for £155 for violation of moral rights can and should be strongly resisted, since you can only violate the author's right to a credit ( which is the only right which might apply in this case) if a) the author asserted his right in the first place, and b) that assertion was communicated to you (see Section 78(4)(b)). From what you have said it sounds as if b) could not have happened, and it is also quite possible that a) didn't either. You should check the listing for the particular image concerned on the StockFood website.

There are several guides to how the procedure is supposed to work (they should have been in the response pack) so I suggest you download them in order to be familiar with the procedure when you talk to the Judge's clerk or indeed any lawyers representing StockFood. The most important one is the Intellectual Property Enterprise Court Guide (pdf) and this in turn will refer you to some other documents you may or may not need to read. As this case is probably destined for the Small Claims Track this guide is more relevant, and mercifully is slightly shorter!

[Sue D]

Hi Andy,

Thanks for your response - to clarify I received the response pack initially (before the judgement) but one of my response points was that I had not received the Particulars of Claim within the timeframe...then I got the judgement described in the earlier post, then I received the Particulars of Claim...but have heard nothing since I got it on 4th October, hence why not sure what is happening!

I looked at the pro bono but I don't meet the criteria they set out (salary/turnover). I will e-mail the Judges Clerk as you suggest to find out what is happening.#

Thanks,
Sue

[Al]

I posted around a year ago about my dealings with Stockfoods.

They were very haphazard in their approach, contradicting themselves and not following correct protocols.

After I ignored one letter they sent another saying they would be initiating court action the following week.

The following letter was my response. I heard nothing back from them.

I hope it is of help.

Dear Mr X

Can you please ensure all future correspondence is sent by registered post. My address is on a road which has multiple blocks of maisonettes. Post is regularly delivered to the wrong address. This request is as much for your protection as mine. Please don’t ignore this request again.

Firstly I feel I need to mention some discrepancies in your correspondence so far.

I did not receive any correspondence / communication from you dated 4th February 2016. What I did receive was an undated, improperly addressed and what looked like a photo-copied email or memo.

With reference to the contents of this non-dated correspondence:
You go to great lengths in your letter talking about my ‘web designer’. At no point in my letter did I mention a web designer. I actually referred to a ‘third party’ not a web designer.

The image came from a business that supplies recipes and images via a subscription service that is sold with a license on the basis that the subscriber can brand and host the recipes and images on their web site.
I have a stock image site subscription where I purchase all other images I use.

You stated ‘there is no entitlement for the claimant to recover images where the defendant….’ Did you mean damages?
The piece of legislation I was referring to can be found here:

Link removed

and states:
97 Provisions as to damages in infringement action.
(1)Where in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.

Thank you for the copy of your contract with (photographer). The contract provides evidence of your rights to distribute his images but provides no evidence of rights or ownership over the image in question.

You may or may not be aware that several web sites are using the image at present. On examining the meta data of the image on these web sites the image’s copyright is attributed to a different photographer from the one you are representing.

So Stock Food Ltd need to provide undeniable proof that they have rights to the image in question.

With regard to your correspondence dated 15th February 2016. This is a copy of an email you sent yourself!

You have marked the correspondence ‘Re : Pre Court Action Letter’. As soon as you send me this letter you trigger a series of legal protocols which must be adhered to before attending court. Are you aware this correspondence doesn’t follow The Practice Direction on Pre-action Conduct? Least of which states that 14 days should be given for the defendant to respond and up to 3 months for a full reply. Considering you have stated that you are going to start court action on the morning of 22nd February 2016 and I received the correspondence on the evening of Tuesday 16th February 2016 to make sure you receive my reply before then I would need to post my reply so it arrives by Friday 18th February 2016. This barely gives me 2 full days to reply. A judge would take a very dim view, and can impose penalties on a claimant who doesn’t follow PDPC, especially one who claims to have been through the legal process before.

The paragraph commencing ‘You may or may not be aware...’ feels to me as if you are trying to threaten and intimidate me in to making a payment on the grounds that if this case went to court and you won I would have to pay significantly more. Making statements like this are not part of the pre court action protocol and would appear you are abusing the legal process in the hopes that a lay person will capitulate to your demands as they have no knowledge of the legal process.

You claim you have made several attempts to settle. I have received 2 demands previous to the correspondence dated 15th February 2016. Two is not several.

With regard to your demand letter dated 4th January 2016 which I received by email on the 14th January 2016.

The settlement demand is an invoice to me from Stock Food Ltd and as such should contain certain legally required information. This demand does not follow invoice law. HMRC take the issue of companies not following invoice protocol very seriously.

You claim the standard licence fee for the image is £270+vat. On your web site it is £64 plus vat for up to 5 years usage for online media.

You are claiming a post licensing surcharge of £1350. Damages in civil cases are intended to put the injured party into the position he would have been in if the image use had been authorised correctly. This charge is both punitive and exorbitant.

You are claiming a fee for not crediting the photographer. In order for a copyright owner to be credited, he must first assert his right, and this must be communicated to the person using the image beforehand. In view of the circumstances through which the image was used , there can have been no such assertion, as there was no copyright or other identifying information on the image. In your undated correspondence you state ‘Our images once licensed legitimately appear on our licensees’ website without a watermark or credit to us.’ The image is being used currently on several websites. Not one of these web sites is crediting the photographer and as previously mentioned the meta data shows the image to belong to another photographer.

With regard to the infringement detection fee and the infringement collection fee you claim in your FAQ’s supplied with the demand letter that they are ‘...contractual obligations to service providers and cannot be waived or discounted.’ Yet in your early payment offer you half one and remove the other. These are running costs of your business which you would be paying whether the third party found infringement or not and as such are no different from the rent you may pay on your premises. A claimant in court is not entitled to any surcharges or other punitive element or administrative fees as a part of damages. There is one exception to this, and that is where the infringement is found to be flagrant. The usage of the image was most definitely not flagrant.

If the alleged copyright infringement did take place, be assured that it was entirely innocent and unwilling and would appear to be of a secondary nature rather than a primary infringement and was in no way flagrant.
The law says this about a secondary infringement:

23 Secondary infringement: possessing or dealing with infringing copy.

The copyright in a work is infringed by a person who, without the licence of the copyright owner—
(a) possesses in the course of a business,

(b) sells or lets for hire, or offers or exposes for sale or hire,

(c) in the course of a business exhibits in public or distributes, or

(d) distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,
an article which is, and which he knows or has reason to believe is, an infringing copy of the work.

If a court found this to be a case of secondary infringement then you would only be able to ask for the removal of the image from the web site and would not be awarded any damages.

As mentioned in my previous letter as a good-faith gesture, the potentially infringing image has been removed from the web site

Link removed

As a proposed licensing fee does not determine copyright infringement damage awards while admitting no guilt or wrongdoing, I am willing to offer a reasonable without prejudiced settlement based upon the fair market value.

I have found dozens of nearly identical or similar images that could easily replace the image at issue here. In some cases, the photos are available for a fee while others require credits. Below are some of the many functionally identical images from comparable stock photo sites. All prices listed are for sizes equivalent to the image in question, approximately 3000x2000

(Examples of photos on stock sites with links)

Based upon my analysis of easy-to-find comparable images to the one at issue here, I calculate that a small sized, unremarkable image of an omelette or frittata has a fair market value of no more than £20. I understand that these images listed above are royalty free images and the image in question is rights managed which would increase the fee paid for them, but I wouldn’t have paid for a RM image when RF images are available for as little as a $1. Without admitting any liablity, I am willing to make Stock Food Ltd an offer of settlement to the sum of £153.60, which is equivalent to double the license fee inclusive of vat that would have been paid if the image was purchased on Stockfoods.co.uk web site in full and final settlement of your claim. This offer is made entirely on a 'without prejudice' basis so I do not have to spend more time dealing with this matter and with no acceptance of liability. I hope my offer will amicably and expeditiously close this matter.

For the avoidance of doubt liability is denied in full. Should you choose to start court action the claim will be vigorously defended.

PLEASE NOTE: This offer will remain open for a period of 23 days from the date of this letter (namely 21 days plus two days for service) after which time the offer will be withdrawn and any court action will be defended in the normal way. In the event of you failing to achieve a judgment in excess of the sum offered in this letter, an application will be made for an order that Stock Food Ltd pay for my wasted costs of the action in full.

I respectfully remind you that you have a duty to mitigate your losses.
If you choose to reject the above offer and still wish to pursue court action then please provide a Letter Before Claim which complies with the requirements of Annex A Para 2 of the Practice Direction on Pre-action Conduct:

(Link removed).

I confirm that I shall then seek advice and submit a formal Response within 30 days of receipt, as required by the Practice Direction.

Please ensure that someone does actually read and respond to this letter, providing the specific information relating to the IPEC claim that you intend to make against myself as the defendant to the proposed legal proceedings.
Please note, a refusal to comply with the Practice Direction will result in reporting Stock Food Ltd to Trading Standards or if it is a case that you Mr X are a qualified solicitor an immediate referral to the Solicitors Regulation Authority for breach of the Principles contained in the SRA Handbook version 8, published on 1st October 2013.

I trust this will not be necessary, and look forward to you accepting my settlement offer or receiving a fully compliant letter before claim in due course

[Oreo2017]

Hi Sue

Please can you let us know how you got on, this company seems to be extorting a lot of people

[Sue D]

Hi Sue

Please can you let us know how you got on, this company seems to be extorting a lot of people

I ended up going to mediation with them - it felt a lot like little old me against a team of fancy lawyers but the guy from the mediation service was great. I dug my heals in as as far as I dare as I do not have time nor (potentially) money to go all the way to a court hearing on a point of principle. I had to make an offer through gritted teeth and they did not give away too much but at least I got them down and certainly got them down from the original extortionate fee they wanted so it is worth holding out just for that. I ended up paying £350 just to get rid of them basically and I just feel the whole thing is a con but the law is often on their side. I like many used an image innocently, a genuine mistake, but ignorance of copyright holds no water in law unfortunately

[Oreo2017]

Thanks so much for letting me know. Did they invite you to mediation, was this at their office or over the phone?

I completely understand - its just so frustrating when you can buy an almost identical image for £7 - lesson well learned I suppose!

[AndyJ]

Hi Sue,

I would like to add my thanks to that of Oreo. It is always very useful to hear how these disputes turn out, especially for those cases which don't go to court. And I'm glad you found the mediation process was, to use your words, 'great'. I would heartily recommend it to others in a similar situation, when they find that simple negotiation is not making headway.