National web designer uses my watermarked images on their clients' website
National web designer uses my watermarked images on their clients' website
Hello. New to this site. Have read lots of posts and hope I am on track. Big national company have used 2 of my watermarked images on one of their clients ' website. Their client didn't know and has no benefit to having my images in their website. Looks like a mistake at web design end. They appear to have gone to the wrong Facebook page and lifted my company name AND 2 watermarked images. Web design/ hosting company say they are investigating how it happened. Their client has complained about it too. If they accept fault I can invoice them apparently. Have looked at NUJ guide to pricing. Am I able to also ask for payment/ fine for infringement? Speaking to them direct just now with no solicitors. Many thanks.
Re: National web designer uses my watermarked images on their clients' website
Hi Sandy,
I'm glad to hear that this big company seem to be doing the decent thing. I think it is certainly appropriate to ask for a fee for the usage of your images to date. But you should not think of it in terms of a fine {that is to say, a punishment). Civil claims are intended to put you in the position you would have been in if they had licenced the images from you beforehand. If you have had previous experience of licensing your photographs, use that as a guide to what you should charge in this instance. If you are new to this, you can certainly use the NUJ guide, but be aware that in some of the categories of use, their quoted figures are on the high side. This is because the fees notified to the NUJ guide tend to be for pictures which are newsworthy and therefore not run-of-the-mill photographs, so they can command higher fees. If your images have that character then by all means go with the NUJ rates. However if your images are of a more general illustrative nature such as those often found on picture agencies, you might need to reduce your aspirations accordingly. In the final analysis, it is your right to demand whatever figure you think is fair recompense.
Good luck
I'm glad to hear that this big company seem to be doing the decent thing. I think it is certainly appropriate to ask for a fee for the usage of your images to date. But you should not think of it in terms of a fine {that is to say, a punishment). Civil claims are intended to put you in the position you would have been in if they had licenced the images from you beforehand. If you have had previous experience of licensing your photographs, use that as a guide to what you should charge in this instance. If you are new to this, you can certainly use the NUJ guide, but be aware that in some of the categories of use, their quoted figures are on the high side. This is because the fees notified to the NUJ guide tend to be for pictures which are newsworthy and therefore not run-of-the-mill photographs, so they can command higher fees. If your images have that character then by all means go with the NUJ rates. However if your images are of a more general illustrative nature such as those often found on picture agencies, you might need to reduce your aspirations accordingly. In the final analysis, it is your right to demand whatever figure you think is fair recompense.
Good luck
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
Re: National web designer uses my watermarked images on their clients' website
Thank you. What a great reply. I have never sold a license for website use before. It's 2 images for 7 months on another photographer's website. They are in England and I am in Scotland. They also used my company name on her menu links instead of her daughter's company name. They have also used an image of a 5 year old which the parents have only given permission for use on my fb page. They did NOT want the image used anywhere else. When you Googled Unicorn picture the picture of their daughter appeared with links to the other company's website.
Re: National web designer uses my watermarked images on their clients' website
I have to partially disagree with Andy J on this one.
I am in agreement that your normal fee would be decisive in calculating the value of the work in question. As you do not normally sell stock, you have a problem, so you will have to try and show the value of the work by what others charge for similar works.
After that is where I disagree with Andy J as Copyright Law is unique in tort law in that not only does it allow for damages awards to be greater than the value of the loss but it actually encourages it by calling for damages to be "dissuasive". It stands to reason because if damages were not dissuasive then nobody would licence the works but instead infringe and enjoy the low chance of being caught.
The idea that damages should be dissuasive is enshrined in Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights
http://eur-lex.europa.eu/legal-content/ ... 1)&from=EN
and also in Directive 2001/29/EC of the European Parliament and of the Council of of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society
http://eur-lex.europa.eu/LexUriServ/Lex ... 019:EN:PDF
Even before these directives were issued , the idea of Additional Damages was enshrined in section 97(2) of the Copyright, Designs and Patents Act 1988
https://www.legislation.gov.uk/ukpga/1988/48/contents
To see how the court would asses additional damages , I would advise you to read the Judgement in the case of Absolute Lofts South West London Ltd vs Artisan Home Improvements Ltd & Darren Mark Ludbrook [2015] EWHC 2608 (IPEC)
http://www.bailii.org/ew/cases/EWHC/IPEC/2015/2608.html
I that case the court awarded 20x the normal value of the work. That's a bit more than many claims because it involved a lot of money. Typical multiples claimed by photographers and awarded by the court tend to lie in the 3x to 6x the normal value of the work.
There may be additional sums you can claim for. For example if the infringer did not credit you ( but only if you asserted your moral rights ) or has the infringer removed your name from the image or Rights Management Meta Data?
If your infringer is talking to you that's a good sign and hopefully you will be able to negotiate a suitable payment without litigation, however in general most people who infringe copyright tend to follow the widespread and unwise advice to ignore the claim. Fortunately there is a small claims track for Copyright Claims so it is very easy to issue a claim. First you send a formal "Letter of Claim" stating what you want and why. Allow the defendnat at least 2 weeks and preferably a month to digest it and then just download this form https://formfinder.hmctsformfinder.just ... n1-eng.pdf fill it in and print 3 copies, 1 for you, 1 for the defendant and one for the court. You then post all 3 to -
Chancery Chambers,
The Rolls Building,
7 Rolls Building,
Fetter Lane,
London
EC4A 1NL
They will stamp them with the High Court seal and post 2 of them back to you. You then post it to the defendant and if they don't file a defence or acknowledgement within 14 days you can apply for Judgement by default. In practice once High Court papers flutter through the letter box, most defendants will contact the claimant and agree an out of court settlement. If not you get a day trip to London at their expense and get to see the wonderful architecture of the High Court on the Strand.
( If you are in Scotland you could have it heard at your local court. There is Scottish law precedence that such cases can be heard in your local court in which case your defendant would have to go north. To have the case heard in Scotland you would need to have the claim issued in the Scottish Courts rather than the England / Wales High Court. The choice is yours.
I am in agreement that your normal fee would be decisive in calculating the value of the work in question. As you do not normally sell stock, you have a problem, so you will have to try and show the value of the work by what others charge for similar works.
After that is where I disagree with Andy J as Copyright Law is unique in tort law in that not only does it allow for damages awards to be greater than the value of the loss but it actually encourages it by calling for damages to be "dissuasive". It stands to reason because if damages were not dissuasive then nobody would licence the works but instead infringe and enjoy the low chance of being caught.
The idea that damages should be dissuasive is enshrined in Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights
http://eur-lex.europa.eu/legal-content/ ... 1)&from=EN
and also in Directive 2001/29/EC of the European Parliament and of the Council of of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society
http://eur-lex.europa.eu/LexUriServ/Lex ... 019:EN:PDF
Even before these directives were issued , the idea of Additional Damages was enshrined in section 97(2) of the Copyright, Designs and Patents Act 1988
https://www.legislation.gov.uk/ukpga/1988/48/contents
To see how the court would asses additional damages , I would advise you to read the Judgement in the case of Absolute Lofts South West London Ltd vs Artisan Home Improvements Ltd & Darren Mark Ludbrook [2015] EWHC 2608 (IPEC)
http://www.bailii.org/ew/cases/EWHC/IPEC/2015/2608.html
I that case the court awarded 20x the normal value of the work. That's a bit more than many claims because it involved a lot of money. Typical multiples claimed by photographers and awarded by the court tend to lie in the 3x to 6x the normal value of the work.
There may be additional sums you can claim for. For example if the infringer did not credit you ( but only if you asserted your moral rights ) or has the infringer removed your name from the image or Rights Management Meta Data?
If your infringer is talking to you that's a good sign and hopefully you will be able to negotiate a suitable payment without litigation, however in general most people who infringe copyright tend to follow the widespread and unwise advice to ignore the claim. Fortunately there is a small claims track for Copyright Claims so it is very easy to issue a claim. First you send a formal "Letter of Claim" stating what you want and why. Allow the defendnat at least 2 weeks and preferably a month to digest it and then just download this form https://formfinder.hmctsformfinder.just ... n1-eng.pdf fill it in and print 3 copies, 1 for you, 1 for the defendant and one for the court. You then post all 3 to -
Chancery Chambers,
The Rolls Building,
7 Rolls Building,
Fetter Lane,
London
EC4A 1NL
They will stamp them with the High Court seal and post 2 of them back to you. You then post it to the defendant and if they don't file a defence or acknowledgement within 14 days you can apply for Judgement by default. In practice once High Court papers flutter through the letter box, most defendants will contact the claimant and agree an out of court settlement. If not you get a day trip to London at their expense and get to see the wonderful architecture of the High Court on the Strand.
( If you are in Scotland you could have it heard at your local court. There is Scottish law precedence that such cases can be heard in your local court in which case your defendant would have to go north. To have the case heard in Scotland you would need to have the claim issued in the Scottish Courts rather than the England / Wales High Court. The choice is yours.