Copied Ebay Images - Appropriate Recompense

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mjn78
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Copied Ebay Images - Appropriate Recompense

Post by mjn78 » Tue Sep 12, 2017 9:54 am

Hello all,

I am looking for some advice on what may be considered reasonable fees to request of a business that has used my photographs on their Ebay listings.

The photographs in question are of items I sell, and of which I either photographed myself, or had a professional photograph for me.

The other business then started selling the same product, and used our images in their listings.

There are four listings in total, and 7 images used. Using the guidance from NUJ and looking at the 'commercial business' category I am coming up with a total of £5,250. Looking at previous threads, and using my own instinct I am concerned that, should this reach a court case, this may be seen as a little unreasonable. It does seem quite high. However this is the best guidance I can seem to find.

It's worth noting that I would never license use of my photographs. The only people interested in them would effectively be my competitors. Indeed, this businesses use of my photographs will have caused me a loss of sales.

I will also be adding on a percentage increase for flagrancy. They have removed (rather badly) from these photos my company name which was added as a watermark. They clearly knew that what they were doing is wrong.

Many thanks for any advice.

Mark.

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AndyJ
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Post by AndyJ » Tue Sep 12, 2017 4:30 pm

Hi Mark,

£5,250 does sound quite high for using just 7 of your photographs (ie £750 each for an unspecified period of time), but the source you quote - the NUJ freelance fees - is a generally reliable and accepted guide. What's more, since you commissioned someone to photograph some of these products for you, you already have a further guide based on what he charged. A court would be likely to accept these figures as the basis for calculating ordinary damages. As for the matter of flagrancy, removing your identifying watermark would almost certainly count as evidence of flagrancy, but what we can't say is what kind of uplift to the basic damages a court might award for flagrancy. It would be very much based on all the facts in your particular case, and whether the other party could offer any mitigation.

If you haven't already seen it, here's a write-up from the 1709 blog about a fairly recent case in the IPEC Small Claims court (where claims, excluding costs, are capped at £10,000) which has certain similarities to your own.
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

mjn78
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Post by mjn78 » Wed Sep 13, 2017 7:11 am

Andy,

Thanks for your response.

I'd read the case of the Manchester photographer a few days ago, I think from a link on this very site. Very interesting.

My initial plan was to tackle this issue myself, and to go through the IPEC small claims process if necessary (I have some limited experience of this, although not particularly pleasant and straightforward if I'm honest).

Given the sums involved I am now going to consider whether to obtain legal representation.

Mark.

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Re: Copied Ebay Images - Appropriate Recompense

Post by Fatty » Sun Nov 19, 2017 11:41 pm

I'm replying to an old post here so I guess your case may have moved on.

You mentioned that some of the photographs were taken by a professional photographer. Has he or she assigned copyright to you or an exclusive licence. If so all OK but if they have only licences those images to you then it would be the copyright holder who can issue a claim for those images.

As for the other factors, certainly removing your logo is very flagrant and should attract a good flagrancy award. If that logo is a clear attribution to you it could be considered Rights Management Information and it could also be a separate infringement under section 296ZG CDPA88 so you could claim a separate sum for that or bundle it with Flagrancy pursuant section 97(2) CDPA88.

Be aware with legal representation that you will probably not get your legal costs back as it sounds like a small claim. Its quite straight forward to issue a claim yourself though. First send a letter of claim stating what you want and why ( Breaches of section 16,17, 20 and perhaps 77 of the CDPA 88 ) with additional damages claimed pursuant section 97(2). Write it down, send it signed for and if they don't play then write down a "particulars of claim " which is basically the same as what you put in your letter of claim. Fill in an N1 Claim form . Print off several copies, one for the court, one for you and one for each defendant and then send all copies off to the Intellectual Properties Enterprise Court. They send them back to you stamped up and you "serve" ie post one to each defendant along with a response pack which you download from the government website.

Most defendants ignore letters from claimants because that's the advice given on many anti copyright forums, however when they get actual court stamped documents, most defendants settle.

Disclaimer: I'm not a lawyer.

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