Photo Copyright - Authority to send 'Letter Before Action'?

If you are worried about infringement or your work has been copied and you want to take action.
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Mike1956
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Photo Copyright - Authority to send 'Letter Before Action'?

Post by Mike1956 » Tue Jul 18, 2017 1:26 pm

Hi,

I designed a website for a client about 2 and a half years ago. I included a couple of images that weren't his (It's a builders website, very small affair, an old chap, near retirement, who felt he needed a web presence www . dunworthbuilders .co.uk). Being a building website the images (2) were just some basic pictures of a patio and a kitchen which I used to visually demonstrate that the company built patios and kitchens.

Anyway, today I got an email form him saying:

"i have just received a recorded delivered letter from a company called Rockfield Media Group, claiming a breach of copyright looking for a payment of £1069.98. The company that own the photo’s are. Wood-Construction Ltd.
Unit 17 Zennor Road Ind Est.
London SW12 OPS."

The first thing I did was to remove the 2 images that weren't his, then I checked the CAB and read about the 'Letter Before Action' and those authorised to send them.

Is this company (Rockfield) authorised to send such a letter? Not sure, I gave them a call. Angry that this old man has been scared by the letter I asked if they had authority to send out such a letter, and where was the proof (Wood-Construction' don't even have a website) of the infringement (I didn't reveal my identity or disclose the case in particular). I got the distinct impression that he wasn't expecting such an answer and wasn't either able or willing to say 'Yes, I'm 1. The copyright owner 2. Someone holding an exclusive copyright licence, called the exclusive licensee or 3. Solicitors acting on behalf of copyright owners or exclusive licensees. Eventually, and with no answer, I hung up.

As far as I can see this Rockfield don't have authority, Wood-Construction don't have a website, and, now that I've removed the images from the website, I can't see how any party can have proof of infringement when the images have been removed.


Any advice would be very much welcome.

Thanks

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AndyJ
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Post by AndyJ » Tue Jul 18, 2017 3:14 pm

Hi Mike,

While I think your instincts may well be right, it could also be that behind this there is a genuine claim for infringement which it would be foolish to ignore. Clearly Rockfield Media Group offer rights management as part of their services, but based on statements on their website either they have a limited grasp of copyright law or their business model relies, in part, on the ignorance of others. Not having seen the claim letter it is hard to know whether it has been correctly framed for a letter before action. At the very least it should identify the period over which it is alleged that the infringement took place, as well as a statement of the basis on which Rockfield is acting on behalf of the claimed owner of the copyright. While it is right that only a copyright owner or his exclusive licensee can bring civil proceedings for infringement, this does not apply to the early stages of pursuing a claim. The figure of £1069 which is claimed - that is £200 per image per year for the time that they have been on your client's website - no doubt plus an admin fee, is not outrageous but it far exceeds what a stock agency would have charged for what sound like generic images.

I don't suppose you can recall where you obtained the images in the first place? I don't think the fact that Wood Construction Ltd do not currently have a website is that significant; they might have had one previously, or they may have created the images but licensed them to someone else to use. It might be more profitable to do a reverse image search and see if you can find the same images in use elsewhere.

And while the fact that you have removed the images means that any alleged infringement has now ceased, I don't think you should be too complacent: it is most likely that Rockfield will have taken screenshots of your client's site prior to sending the letter.

As this matter could be heading towards full blown litigation there is a limit to the advice which can be provided here, beyond saying that if Rockfield and/or Wood Construction Ltd are determined to take the matter forward, your client should consider getting his own legal advice, either from Citizens Advice or a solicitor who specialises in IP law. To get an idea about how a court case might proceed, here is a link to a case with some similar facts and circumstances: Absolute Lofts South West London Ltd v Artisan Home Improvements Ltd [2015].
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Mike1956
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Post by Mike1956 » Tue Jul 18, 2017 7:31 pm

Hi AndyJ,

My (ex) client has sent me photos of the letter he received, is it ok to post those photos here?

I did a google image search of the image in question, but, although my clients site is shown, the image is on a number of other sites as well.

I'm loathe to tell my client to pay up when Rockfield media haven't provided proof that Wood Construction Ltd actually own the copyright. Also, I'm not even sure, given the CAB web page entitled:

'If you're accused of online copyright infringement'

that Rockfield have the right to send such a demand.

This site won't allow me to post any Urls

Michael

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AndyJ
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Post by AndyJ » Wed Jul 19, 2017 9:22 am

Hi again Mike,

I certainly don't think your client should pay up based solely on the letter before action, if indeed that is what he has received. He is entirely within his rights to challenge the claim of ownership and to ask for an explanation of how the fee demanded has been arrived at. Obviously at this stage he should not admit liability. I think you should assume that Rockfield may monitor what is said here, and therefore it would be unwise to make any admissions on your part either.

I would advise you not to publish the letter. That could also amount to infringement of copyright, in this case in the letter itself. And as I mentioned, since the matter has to all intents and purposes become litigation, I can only make general comments about the law, and not advise your client on the particular details of his case. Hence my earlier suggestion that he seeks his own legal advice.

I believe that the settings on this website do not permit the use of links until after your first 5 postings. This is to prevent spam.

Also, for the sake of clarity are we talking about one or two images? In your first posting you referred to a couple of images, but in the most recent, you refer to "the image in question".
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Post by Mike1956 » Wed Jul 19, 2017 1:13 pm

Hi Again,

This is regarding 1 image.

I'm waiting for my client to send a photo of the Annex entitled 'Various Identifiers' to see exactly what proof they have that their client owns the copyright to the photo.

Their client is trading as simply extend and is at simplyextend - co - uk then 'our work' then 'gallery' and is the 3rd photo on the page (opened door kitchen extension). I've used metapicz - com to check the meta data but there doesn't appear to be any.

As for the fee, they have provided images of a Fotoquote valuation, an NUJ valuation, and a Getty valuation (based on a few photos sent to me by my ex client, I'm trying to get all of them - tech isn't his thing).

I simply can't see how they can prove that they own the rights to the image, no meta data attached to the image on their website.

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Post by AndyJ » Wed Jul 19, 2017 2:42 pm

Hi Mike,

There is some EXIF data attached to the image although it doesn't have any copyright information.
EXIF(EXIF-specific Properties)
Make Canon
Model Canon EOS1000D
Orientation Top Left
XResolution 72
YResolution 72
ResolutionUnit Inch
DateTime 2013:12:04: 09:55:30
ExposureTime 1/25 sec
FNumber f/5.6
ExposureProgram Manual
ISOSpeedRating 400
ExifVersion ExifVersion 2.21
DateTimeOriginal 2013:12:04: 09:55:30
DateTimeDigitized 2013:12:04: 09:55:30
ComponentsConfig Y Cb Cr –
ShutterSpeedValue 4.62 EV (1/24 sec)
ApertureValue 5.00 EV (f/5.7)
ExposureBiasValue 0.00 EV
MaxApertureValue 3.56 EV (f/3.4)
MeteringMode Pattern
Assuming that the company did take the images (the second one next to the disputed image is obviously the same location viewed from the inside), then it will be relatively simple to establish that the company carried out the work at the property and therefore on the balance of probabilities, a represenative of the company would have taken the images of the finished job for exactly the reason they appear on the Simply Extend website. Since it would appear that your client cannot establish a claim to the copyright or provide a reasonable explanation for how the image was sourced legitimately, I think the court would be prepared to accept the claimant's assertion of ownership. The only flaw in that reasoning might be that a third party photographer was commisioned to take the photographs and he/she retained the copyright while allowing Wood Construction Ltd to use the images it had commssioned. Indeed Wood Construction might in fact be the exclusive licensee and as we have discussed earlier, this would give them standing to bring a claim. And if that was not the case, then it is relatively simple to either join the photographer as a co-claimant or for him/her to assign copyright to Wood Construction prior to any proceedings, as was done the Absolute Lofts case I mentioned earlier.
Last edited by AndyJ on Wed Jul 19, 2017 3:21 pm, edited 1 time in total.
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Post by Mike1956 » Wed Jul 19, 2017 3:04 pm

Yes, sorry, I was using the un-enlarged image.

Still there's nothing there to suggest ownership by anyone.

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Post by AndyJ » Wed Jul 19, 2017 3:22 pm

Sorry Mike
I have just added some remarks to my earlier posting at the same time that you posted.
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Post by Mike1956 » Wed Jul 19, 2017 4:14 pm

Thanks Andy,

So all they've got to do is prove that their client did the work, meaning that it's highly likely that they took the image. I don't fancy my ex client going to court and being ordered to pay £6k like in the example you provided. So pretty much pay up?

They're asking for £1069.48, but go on to say they'll accept £752.33 if payment is made quick.

"In the spirit of the protocol we are willing to settle this claim amicably without recourse to legal proceedings and as such will accept £752.33 in full and final settlement, if paid within (obscured) of this letter"

There's still the question of whether Rockfield actually have the authority to issue a letter before action in a case of copyright infringement, as per the CAB guidelines.

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Post by AndyJ » Wed Jul 19, 2017 5:43 pm

Hi Mike,

The £6K in the Absolute Lofts case was for aggravated damages based on the defendant's flagrant attitude to the infringement. That would not apply in the case of your client who, from what you have said, was totally unaware of the infringing nature of the image and was not responsible for the copying. He would only be liable for secondary infringement, that is using or possessing an infringing copy in the course of business, and any damages would be assessed on a similar formula to the one used in the Absolute case, based on the user principle. To my mind £752 sounds too high for a single image of this type.
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Post by Mike1956 » Wed Jul 19, 2017 6:00 pm

Would it not be cheaper to just pay it rather than incur the cost of IP lawyers and court cases?

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Re: Photo Copyright - Authority to send 'Letter Before Action'?

Post by ArchivesNChives » Mon Nov 13, 2017 12:39 am

I know that I am replying to an older thread, but on the chance that someone in a similar situation sees this one other thing you should consider (and I imagine you have, to some extent) is the degree to which you want to get involved in this situation. Sure, you designed the website. But is your ex-client (your words) paying you for your time now? I can see how you might feel obligated to help him out, but where does that end?

Remember: You are not the person who was threatened with a lawsuit. This is not your case. Consider a tax preparer who gets paid to assist people with their taxes. If they get audited and they want that person to represent them before the IRS, that's not free. And I doubt it would be free - at least beyond an initial meeting or two - even if it came about as a result of their error.

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