Imageright - Can they do anything?

If you are worried about infringement or your work has been copied and you want to take action.
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tuuliuk
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Imageright - Can they do anything?

Post by tuuliuk » Wed Oct 11, 2017 2:39 pm

Hey!

So I've just noticed an email from a website called imagerights that is saying I owe £1000 for a photo I have on my website from an article written by an ex contributor back in 2015. I checked analytics and it's been viewed about 350 times in total. From what I knew this image was fine to be used as seemed to be a well used promotional shot.

The company seems to be based in the US so I was wondering if they had any power to actually do anything about this anyways with me being in the UK as I really do not have £1000 to give them even if they want it at this stage.

Here is what I recieved.

"Since sending our infringement notification of 22 September, 2017, we note that the fee of £ 1,000.00 remains unpaid and X's copyrighted image continues to be displayed on X

Your urgent attention is now required to resolve this matter amicably without recourse to further action.

X's copyrighted image (Image ID: X) was discovered on your website for which there is no record of a license. If the image was licensed under an alternate company name (dba) or in the name of a third party, please reply to this email with information on the sales order, invoice or other pertinent licensing information.

However, if a valid license for this use of the image does not exist, a fee of £ 1,000.00 is required to resolve this matter. As the owner of the site, you are liable for the unauthorized use in the absence of a valid license, including cases in which a website designer, employee or intern is responsible for the inclusion of this image on your website. If your use of this image without a license was unintentional, for example if the image was found on the Internet and believed to be available for free use, it is still in violation of copyright law (Title 17 of the US Copyright Act) and ceasing use of the image now will not release you or your organization from liability in this regard.

To resolve this matter, please follow these steps:

1. Review the case documentation, including a screen shot of the infringed image(s) displayed on X

2. Once you have reviewed the documentation, confirmed that a valid license for this use is not in place, and reviewed the Settlement and Release Agreement, then please select Request Invoice to Resolve Claim.

3. Once you have removed the infringing uses of the image(s) from X, please confirm by replying to this email."


I've taken the image down, but not sure what to do from here. Any advice?

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AndyJ
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Post by AndyJ » Thu Oct 12, 2017 5:59 pm

Hi tuuliuk,

Imagerights International Inc are one of a growing number of companies which provide this kind of service on behalf of rights holders, mainly photographers. There's nothing illegal per se about their operation, but many people refer to them as copyright trolls because of the manner in which they operate. That is to say, issuing wholly unreasonable demands in respect of the use of images which they say is infringing, and then keeping roughly 50% of all the money they receive. In this they are somewhat similar to claims management companies who deal with PPI claims. It is worth noting that courts here and in the US are extremely wary of claims handled by these sorts of company. (try googling 'Media CAT v Adams', 'Rightshaven' and 'Prenda Law' for more information).

But you probably knew that already. So there is nothing to stop them writing to you, but under UK law, there is very little they can do to carry out their threats of litigation as this is a right only the rightsholder or their exclusive licensee can exercise by bringing a claim in court. And of course you are not obliged to correspond with them until they have established a proper legal basis for their claim. Quoting US law is hardly relevant to you in the UK.

If the matter ever got to court, the sort of damages which a court would contemplate would be based on the actual fees that the disputed image would have earned in a fair marketplace, which I strongly suspect would be somewhat less than £1000. And in any event, you may be able to avoid liablity for any infringement because of the safe harbour provisions of the Online Copyright Infringement Liability Limitation Act (often referred to as the DMCA) or the EU ECommerce Directive see (Articles 12-15), provided that the image was posted without your knowledge or editorial intervention at the time, and that you removed the image expeditiously once notified of its status. From what you have said it doesn't sound as if you have received a properly constructed DMCA takedown notice and so what qualifies as 'expeditious' may accordingly need to be adjusted in your favour. The other matter which concerns me is that you have not mentioned what proof if any was provided about ownership of copyright in the disputed image. For any claim in the US to go forward, the image would have had to have been registered with the US Copyright Office, and therefore I would have expected Imagerights to have provided the registration details for you to verify the claim which they are pursuing on behalf of their client. Clearly anyone can make empty claims with no foundation, and so you should treat their communications with due scepticism until they prove otherwise.
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Re: Imageright - Can they do anything?

Post by Fatty » Sun Nov 19, 2017 11:15 pm

A mere conduit defence might work if you are talking about running a forum ( like this one say ! ) and the infringement is a post on that forum, however it is unlikely a court would wear it for a website publishing articles. The defence was originally written into law to protect internet service providers offering email and web hosting services. It was never intended to provide a defence for publishers. Everything depends on the exact circumstances but if the website is akin to a magazine article in a magazine then I would think this defence would be a non starter.

As for Image Rights ... well its not very professional for them to be quoting US law to a UK defendant about a UK infringement. I hear they do have UK lawyers so do be careful but I doubt they would let the loose for every claim. You might want to concentrate on the value of the claim. The courts will relate any claim of damages to the normal sales price of the work in questions. They will award more than the normal sales price to deter infringement but the highest they have gone in recent years was 20x the normal selling price. That was Absolute Lofts vs Artisan Home Improvements & ors which you can look upon bailii. If this photo is normally licensed for a few hundred a time then a grand would be reasonable but if its normally sold for 20 quid (as is often the case ) then its excessive. Best to do some research and then see if you can reach an agreement. Alternatively you can call their bluff and see if their lawyers really do come out to play but if you make a wrong call it can be very expensive.

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Re: Imageright - Can they do anything?

Post by Gobby » Sun Dec 10, 2017 12:26 pm

You are correct, Imagerights is a US based firm, but they have appointed associates all over the World. It is likely they will appoint a UK based firm to pursue the case if they think it's worthwhile.

Your liability is the fee the copyright holder would have charged in normal circumstances, plus an uplift if the copyright holder asserts the right to be credited, and possibly a punitive sanction for 'flagrancy' if the judge thinks you should have known better, i.e. if you are a graphic designer etc who might normally deal with intellectual property.

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Re: Imageright - Can they do anything?

Post by AndyJ » Sun Dec 10, 2017 3:30 pm

Thanks for the contribution, Gobby. However appointing a UK representative does not get round the problem that under UK law only the rights owner or an exclusive licensee can actually start a claim for copyright infringement.

Of course under US law there is no moral right to a credit for an author to assert, except in the very limited area* of the visual arts as defined in the Visual Artists Rights Act (VARA). And under UK law there are fairly tight restrictions over the way the assertion has been made, if the person who is alleged to have infringed the work is also to be liable for infringing the moral right (see Section 78 (4)).

And finally, as explained in another thread punitive sanctions are not awarded in civil cases.

As I outlined in the other thread just referred to, until a court decides on the matter of flagrancy, an alleged infringer is not legally liable for additional damages, and it would be inappropriate for an agency like Imagright to say that such damages formed part of the calculation of the sum demanded when issuing their initial claim letter. However, given that part of their modus operandi is to scare people with grandiose threats, I would be unsurprised to find such claims being made nonetheless. Happily, the courts take a dim view of such tactics if and when a claim is ultimately brought before the court.



* VARA only applies to: "a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author."
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Gobby
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Re: Imageright - Can they do anything?

Post by Gobby » Sun Dec 10, 2017 5:13 pm

Thanks AndyJ. Could I ask you to clarify your view particularly the first point below please?


AndyJ wrote:
".....appointing a UK representative does not get round the problem that under UK law only the rights owner or an exclusive licensee can actually start a claim for copyright infringement."


I may be misunderstanding you and the original poster, but as I understand it the copyright holder appoints Imagerights as their agent to act on their behalf who will then appoint a lawyer in the UK to start a claim with the Copyright Designs and Patents Act 1988.

....And under UK law there are fairly tight restrictions over the way the assertion has been made, if the person who is alleged to have infringed the work is also to be liable for infringing the moral right (see Section 78 (4)).

Yes, moral rights need to be asserted and in my experience many/most photographers insist on this in their terms of trading.


......And finally, as explained in another thread punitive sanctions are not awarded in civil cases.


Yes, punitive was the incorrect phrase. I should have referred to a 'dissuasive element' required by the Enforcement Directive, art 3(2).

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Re: Imageright - Can they do anything?

Post by Fatty » Sun Dec 10, 2017 5:19 pm

I thing the rights owner problem will be solved by the copyright holder / photographer signing a contract with whichever law firm is appointed to peruse the case. If they decide to actually issue a claim I doubt this will be an issue.

With regards to asserting moral rights, many professional photographers and even many amateurs, will publish their images on their websites and other places with their names on them. If they have done this, they have asserted their moral rights pursuant to section 78 (3)(a) CD&P Act 88.

With regards to additional damages , I have to disagree with Andy J on that one. EU Directive 2004/48/EC on the enforcement of intellectual property rights states that damages must be "dissuasive". Different EU countries have different ways of dissuading. In Holland a multiple of the normal value of the work is routine. In Germany infringers must sign a contract promising to remove all infringing copies and never to infringe the work again with a penalty clause. Penalty clauses of 5000 Euros are common and confirmed as valid by the courts. One could also argue that a defendant receiving a 20 grand legal bill is dissuasive. Here in the UK we have our unique small claims track which has very low costs and so its difficult to argue anything but an award of significant additional damages is going to be dissuasive. Everything is related to the facts of the case, but the IPEC SCT is generous in this respect and frequently awards multiples of the normal image value.

Unfortunately IPEC SCT small claims judgements have up to now, not been allowed on bailii so they are difficult to find and read up on, however IPEC seem to be having second thoughts on this policy and it is likely to change very soon which will bring clarity to bod defendants and claimants. Until now if you google you may find some judgements or court reports online. There is a report of a photographer being awarded 6x image value by the IPEC on the 1709 blog.

As for whether the claimant should include an amount to be determined by the court in his or her claim I believe the answer is a resounding yes. Certainly many claimants incorporate an estimate of additional damages in their claim and have not been sanctioned by the court for doing this. Also it would be illogical if a claimant was confident in expecting say 1000 GBP from the court but should offer a lower figure first. Clearly they should include additional damages in their initial demands. How much he or she should ask for depends on the facts of the case. In absolute Lofts the court awarded 20x the normal value of the work, however that case was very flagrant and involved quite a bit of money. I don't think that would be appropriate in more usual infringement cases. A claimant who demands a sum wildly over what he would reasonably expect to be awarded by the court is likely to be sanctioned by the court, however that is unlikely here with an initial claim of 1000 GBP. Most of the court awards in the IPEC SCT I have read about have been into 4 figures. If this low value photograph then they may well not achieve their 1000 GBP in court, but its unlikely to be seen as an unreasonable initial demand.

In short both claimant and defendant must play fair, however some negotiation room is certainly seen as fair and to be expected.

If they are demanding 1000 GBP why not ask them for a breakdown of how this is calculated, and also try to find out what the image in question is normally licensed at.

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Re: Imageright - Can they do anything?

Post by AndyJ » Sun Dec 10, 2017 6:46 pm

Fatty wrote:
Sun Dec 10, 2017 5:19 pm

With regards to additional damages , I have to disagree with Andy J on that one. EU Directive 2004/48/EC on the enforcement of intellectual property rights states that damages must be "dissuasive".
I'm not sure in what way you point disagrees with mine. I am more than happy to accept that additional damages are awarded in order dissuade others from similar behaviour. My quibble was over Gobby's use of the word 'punitive'.

As you are probably aware, the sentences handed down in criminal cases are supposed to be based on three principal factors: punishment (or retribution), deterrence and rehabilitation. Public protection can also be a fourth factor in some cases. Only deterrence (dissuasion) comes into civil cases.
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