Infringement of copyright

[cestrian77]

I'm hoping somebody can help me please. I'm a private student HMO landlord that uses a letting agency (Company A) to manage my property. In November last year, I informed the letting agency that I was going to be moving to another company (Company B). Unbeknownst to me, Company B took the photographs of my property from Company A's website and used them to advertise my property.

Company A initially notified me by email and I immediately called Company B and requested the photos be taken down from Company B’s website. I never visited Company B’s website but assume this had been completed.

Then in February this year, one of the tenants Company B had found for the following academic year decided they wanted to cancel their agreement and company B re-advertised my room on a third-party website, again using Company A’s photographs. And again, unbeknown to me. I received a further email from the owner of Company A informing me of this and I again informed Company B straight away and requested their removal.

I have now received a letter from Company A’s solicitors, claiming Infringement of Copyright. Their claims are summarised as follows:

- 8 photographs of the property, which the client ‘dressed the rooms’ (which as far as I can tell having now viewed the contested photos simply involved adding a plant or two).

- They’re claiming the photos were used to advertise my property between October 2018 and January 2019 on spareroom.co.uk and also on a Facebook post by Company B.

- They have supplied screenshots of the infringing listings and post.

- They are claiming this is unacceptable to their client, as they have issued correspondence to me about this (which as I stated above, I actioned immediately but by phone not email or text, so can’t provide evidence of my actions)

- They accept that following notification, the listings were removed on or around 6th February 2019

- They are requesting signed undertakings from me within a week, including information relating to the letting of the property so that it may assess what damages are payable.

- And they say if proceedings become necessary (which may be issued and served without further notice to me), the remedies available to the client include an injunction, delivery up or at their client’s option, destruction of all infringing copies, damages or an account of profits, legal costs and interest.

- They’re advising I seek independent legal advice immediately.

Whilst there’s no doubt the photographs were used by company B, I have not sanctioned their use and acted immediately to remove them (however, my actions were undocumented phone calls not emails or texts, so there’s no evidence of my actions in this case). So, my questions are thus:

1. Can a value be attached the photographs themselves? As the letting agent would no longer be managing my property, the photos themselves are worthless to them. Surely that means there’s no profit/value to be accounted for? And the future rental of my property is not solely based on photographs in any case. There’s a body of text describing the property/rooms and then the tenants visit the property and decide to rent or not.

2. In trying to understand the potential damages issue, as stated above I believe the photographic value is zero. How would a court interpret this please?

3. If I had known about the photo issue, I would have simply taken my own photographs and/or requested Company B take new photographs. So, the cost of alternatives or replacements are practically zero in my opinion. Is this a valid point from a copyright perspective?

4. There’s no mention in the signed management agreement for letting the property relating to photographs. Whilst I appreciate that copyright for photographic work remains with the photographer, does the fact that these photos are of my property and are worthless to Company A now that the management agreement has been terminated count for anything?

5. They’re also suggesting I need to pay company A’s legal costs in relation to this matter which currently stand at £160 + VAT. Is this right? Or is it presumptive of them to demand this at this stage?

6. Does my lack of evidence requesting immediate removal of photographs cause an issue?

7. How I can be requested to ‘destroy all copies’ of a digital photograph? Especially one that I’ve never personally held or had direct access to?

8. I understand it’s best not to ignore letters like this but am I right in thinking I can reply to the letter accepting that infringement of copyright has taken place, but not at my request and therefore Company A needs to address their claims to Company B, not me as the individual? Or is there a better response I should be making?

9. I appreciate I may well have to engage a legal professional to defend this in a small claims IP case, but I’d appreciate a view on whether my case is defensible please.

I do believe that Company A is simply profiteering and trying to maximise any further income from me now that I have terminated the management agreement. I’m trying to quantify my potential exposure in terms of damages, so any view on this would be hugely appreciated.
Thanks in advance for any help, views and advice that are offered.

[AndyJ]

Hi cestrian77,

I'm a little surprised that Company A's solicitors are going after you when you say it is Company B which has been responsible for taking and using the photographs. Their claim should be against Company B, even though Company B were acting on your behalf, and the photographs are of your property. Unless you explicitly authorised (see section 16(2) Company B to copy and use the photographs you are not liable for copyright infringement. Authorising in this context means something more than just you saying to Company B "if you want to see what my property looks like, you can see some photographs of it on Company A's website".

However let's assume that for some reason Company A's solicitor has grounds for believing that you did authorise Company B in some way, and try to answer your questions:

1. The photographs have 'value' in the sense that they assist in the marketing of your property. While they may no longer have any value to Company A they still represent a financial investment which Company A made at the time it was your letting agent. Once a value has been established, it may be that the second occasion on which the photographs were used after you were informed about them, may be seen as an act of flagrancy which could increase (possibly double) the amount of damages.

2. The court would try to establish the value based on either the photographer's charges to company A, or on some arbitrary value based on the benefit you gained from the lettings which flowed from the time the photographs were on Company B's website. For an example of how this evaluation works in practice, see a court case known as Absolute Lofts*.

3. No, this isn't really a relevant argument. If you did something which Company B took to be authorisation to use the photographs then it becomes a matter of strict liability.

4. No. As explained in answer 1 these photographs do have a 'value'. If they didn't then Company B wouldn't have used them.

5. At this stage, prior to any litigation in court, the claimant can ask for any additional costs such as legal fees, since this is an expense they have incurred. If the matter went to court, and was allocated to the small claims track, such legal expenses would not be included in any award the court made to the claimant, although reasonable administrative expenses would be allowable.

6. No I don't think this is a problem. The solicitor's letter acknowledges that the photographs were taken down around 6th February. The causation is not really important. If you did not authorise the use of the photographs in the first place, it is not your responsibility to get them taken down.

7. Obviously this would be the responsibility of Company B, but based on your relationship with them you would need to tell them to delete the photographs from the server for their webiste. If they didn't do this and somehow the photographs were published again, then you would definitely not be liable in that instance after you had instructed Company B to delete them.

8. Assuming that you are sure that you at no point authorised or instructed (even indirectly) Company B to use the photographs, you should reply that you accept no liability for their actions and that Company A should pursue the matter with Company B. It would be up to company B to prove that you authorised them, in order for them to assert that they were not liable, or were only liable for secondary infringement (see section 23). Although Company B were your letting agents, they were not your universal agent in the legal sense of a person whose actions are entirely linked to and legally inseparable from the principal (you). Letting agents have a more general and reduced level of agency, and for instance are expected to have a degree of business proficiency for which you are not responsible. However you should study your written agreement with them to see what level of liability they do accept. From your perspective Company B acted independently, albeit on your behalf, and thus you bear no liability for their actions.

9. If you feel that something which you said to Company B might have been interpreted as authorising them to copy and use the photographs, then it might be advisible to talk to your own solicitor. Much will depend on how much money is being demanded versus the cost of using a solicitor. Ideally you should consult a solicitor who specialises in intellectual property matters (use the Law Society website to find one near you), then phone and ask whether they offer a short, free consultation, and what they charge for the various stages of acting for you in defending this claim. You can then assess the financial pros and cons.

If you want to come back to the forum, I suggest that you do not make any public admission about whether you think you authorised this infringement, as this could ultimately be used as evidence in support of Company A's claim.

* The circumstances in the Absolute Lofts case are not directly applicable to your case and it is mentioned here only as an example of how the courts approach the issue of valuing photographs. The judgment mentions the so-called 'user principle' which originated with trade mark law, and is explained rather more fully here.

[cestrian77]

Thank you so much for replying with such a detailed response. This really is a minefield and I clearly don't know what I don't know. But this Copyright Aid website has been invaluable.

I'll be sure to update the forum at a later date with any more details that I can share and/or the outcome, so that the information can potentially benefit others.