Website Images Copyright Infringement - Help needed

[FelixCulpa]

Hello!

First I would like to thank everyone who made this great website possible – the webmaster as well as to all the contributors who unselfishly spend their valuable time helping others, exchange opinions, and share their knowledge with all of us. Thank you all - it is very much appreciated!

My problem is very similar to the problems of many others who posted here.
I run a small business, providing a service. I also have a website where those services are offered/advertised. My particular business is not very profitable, so funds are very tight.
Like many other guys in similar position, I couldn’t afford services of expensive web developers, and so I turned to considerably cheaper alternatives abroad. Not ideal, but better than not having website at all, considering that I used to be totally clueless when it comes to all those things. Well, I still am clueless but slightly less so, after the recent events…

All the stuff in relation to the website has been trouble free for a number of years, and I was blissfully unaware of any underlying problems.
A few months ago, I received an email from a well known image rights chasing “business”, demanding that we take a number of images down, and demanding a multiple 4 figure sum, in the name of image rights, past use of the photography etc.
I was initially curious and had a quick browse on the net and found few sites where people were discussing similar issues with the same and other companies demanding money for the picture rights..
As if on purpose, those initial few websites/forums I had visited at the time, were all very dismissive of those “businesses”.. Additionally, we receive literally hundreds of scam emails monthly, ranging from demanding that we deposit money somewhere, purchase thousands of pounds worth of bitcoins because they had hacked our pc and now have some indecent images of us watching porn etc, so I ignored it, thinking it must be just another scammer chancing it..
Two-three months went by, and meanwhile we have this Covid thingy, and I totally forgot about it.
Then we got another email from them, essentially saying the same thing, pay up if you don’t have the licence etc... At that point I went a bit further online but came across more or less the same advices – delete the images and ignore them blah blah..
Importantly, when I initially hired the website developer, I told him in no uncertain terms that I run the business honestly, and that I want everything to be above board ie. no copying or imitating other websites’(competitor’s ones) photos, plagiarising their written copy etc. In our line of work that used to be pretty common, and probably still is.. He reassured me that everything will be above the board and that he would never do anything illegal or unethical etc..
I then spoke to him, asking him to explain what’s going on, and if those images were legally on our website but, whether it was a language barrier, him lying, or being just as clueless as I was, he told me that everything was ok, and he was adamant that he didn’t do anything illegal. To be on the safe side I asked him to delete those images, and I started searching on the net to find some alternatives. We have since replaced those images with different ones, taken from places like pixabay etc.

I thought that taking the images down and replacing them would be sufficient, and that they will finally leave us alone. Looking back, I should have searched for some help and ask someone for advice etc. Rightly or wrongly, I was thinking that they will eventually give up and that they must be scammers being bored and still trying their luck, especially in these Covid times when people are scared&worried, and possibly easier to trick into paying..


We then received another email several weeks later, again, saying basically the same thing and stating that they will instruct their solicitors if we don’t reply. That one I have totally overlooked due to being quite ill for some time, and not checking emails at all – business has been totally dead for months(and still is!) and, to be honest, out of 1000 or so emails we received at that time, 99% were spam, scam and the likes..
Finally, a week or so ago, we received another email but this time from their solicitors. The letter was saying the same thing, explaining that they act for so and so company, and the usual stuff.. Asking us to either prove that we have the valid licence for those photos and, if not, to immediately delete them from the website, sign the attached agreement and pay up…….
They have also increased the original asking “fee” by almost double, because we didn’t reply to their previous requests..

I have since been searching the net to find out where I stand in relation to all this, and luckily, found this forum.

On the advice from reading previous posts on the forum, I tried to find out what is the value of those photos, so that I have better idea on how to go about it, what to counter offer etc.

Whilst searching for the images(googling), I have discovered a well known stock image selling website that sells those same images, but there is a problem in establishing the value. Majority of those photos can be bought for around £20-£30 but the problem is they are editorial only, meaning that it is not possible to use them for commercial purposes. I have even spoken to that stock image website which re-sells the said photos, and they confirmed that the original rights owner doesn’t have commercial licence for those photos, and that they can only be sold for editorial purposes!

It turns out, my “web developer” didn’t just get any ordinary images, he had clumsily uploaded quite a few photos of famous people and famous buildings/landmarks, and from what I understood whilst communicating with the re-selling stock image website, it is definitely not possible to use those images on a commercial website without prior consent from the owners of those buildings/landmarks displayed on the photos, or those well known individuals/personalities themselves.
So, if we compare the original asking price from the picture rights company(multiple 4 figure sum) with the price we would have paid for those images on an “editorial” basis(Less than £200) there is a huge discrepancy.
Now, I understand that my website is a commercial one, and to start with, we couldn’t have bought those images for our website even if we had been aware of the picture rights law etc. because they are editorial and, as such, meant for newspapers etc. Equally, the picture rights company is asking us for a lot of money, for the commercial use of those photos, but the people they represent(original right owners) couldn’t have sold those images to us for commercial use, even if we had attempted to buy them in the first place?
I understand that their initial settlement figure was greatly inflated, apparently that’s the normal practice in these situations, but how do I go about proposing the counter offer when it is difficult to determine the value of their estimate?

The irony is that most of those photos were on pages with almost no commercial value, majority of them were just crappy thumbnail images, and I would be very lucky if we made even few hundred pounds out of them combined.

Any input&advice on the above will be greatly appreciated.

Sorry for the long essay, I was concerned that if I cut something out of the story, it might not paint the correct picture etc. Hope I didn't forget to include some important piece of info, it wouldn't be the first time, I am terrible with written word

Many thanks!

[AndyJ]

Hi FelixCulpa,

No need to apologise for the detail about how and why you come to be in this position. It will be very worrying for you. As you seem to have read the many other threads here which discuss the same issue I won't reiterate what has been said there.

Since you haven't been able to find prices for commercial use of these specific images, the next best thing is to try and find similar images which are available for commercial (web) use. Depending on the number of images involved I would expect that you should still be looking at a figure in the hundreds rather than thousands of pounds. You then need to work out how long the images were on the web site and arrive at a counter-offer figure. I think the fact that the editorial rate for these images was comparatively low is significant. Images of celebrities are mainly limited to editorial, because commercial use can bring in issues about whether the celebrity is endorsing your product or service, or defamation. The famous buildings and landmarks are not an issue under UK and US law, although it is in many other countries (especially in Europe) where the law is different. The most usual reason images like these aren't available for commercial use is that the photographer / stock agency doesn't have model or property releases for the subjects depicted. These are generally required by the advertising industry to guard against the false endorsement or other potential litigation problems. Neither type of release is strictly required under UK law; the practice originates in the USA although it is now pretty standard 'best practice' everywhere. However that isn't really of assistance in your particular situation.

Despite the detail in your posting, I am not clear about the context in which the images were being used. It may be that if they were generally illustrative and not there to 'sell' your product or service, the use may in fact have been editorial, especially if they were only thumbnail sized. Sadly there is no fixed definition of what 'editorial' means and different stock agencies have different definitions. You should check what your particular stock agency says on the matter. Here's what Shutterstock, a major agency for pictures, says:

Consider this situation… you are designing a brochure that will be used to promote football uniforms and you would like to include some dynamic images in the design. You search through Shutterstock‘s extensive library of over 3 million images and see a great photo of football players that would fit perfectly in your design. However, you notice that below the photo it reads “Editorial Use Only” in the release information.

What exactly does this mean?

This question comes up quite often. Images that are marked as “editorial use only” are ones that have not been released for commercial use and have also been taken without the consent of the individuals in the photo. In the design scenario above, you would not be able to use the photo of the football players because you are promoting football uniforms and generating sales from the brochure. In addition, the players have not given their permission to be included in the photo.

When Can I Use “Editorial Use Only” Images?

Usage allowance would have been different if you‘re designing the layout for a sports magazine and you‘re using the photo to illustrate a story about football playing techniques. In this situation, the photo was not being used to sell the magazine but rather to enhance the effectiveness of the story. Other mediums where you can use “editorial use only” images are newspapers, news broadcasts and other non-commercial applications.

If you can describe your web pages as being there to discuss or convey news, education or information of public interest, either in general or specific to your industry, and the purpose of the images was directly tied to that use, then you have strong grounds for claiming that the use was editorial rather than commercial. The Shutterstock example of football players is helpful in analysing that.

So I am sorry not to be able to offer more positive advice on the way ahead. You need to engage fully with the solicitors who are dealing with this but remain firm in the face of unreasonable or outrageous demands, in the knowledge that a court is unlikely to agree with an assessment of damages which escalates over time. The loss suffered by the photographer(s) is a fixed one tied directly to the market value of the pictures. And while a small uplift for administrative costs is acceptable, this needs to be proportionate to the value of the basic claim. If someone owes you £20 it is unreasonable run up and pass on administrative and legal costs of £2000 when trying to recover the debt. And try to avoid acknowledging liability; this leaves you wriggle room if the matter does go to court. If you are member of a trade body or Rotary Club etc, see if they can provide any free legal assistance. Also check your business insurance policy to see if legal cover is included for eventualities such as this.

I imagine that you have abandoned any thought of suing your web designer for getting you into this mess, given the geographical and jurisdictional problems involved.

Good luck, and feel free to come back and let us all know how things progress. I am sure you appreciate how useful this can be for others in your position.

[FelixCulpa]

Hi Andy,

Thank you for taking the time to post this extensive reply, it is very much appreciated!
I am still fairly confused about it all.

Since you haven't been able to find prices for commercial use of these specific images, the next best thing is to try and find similar images which are available for commercial (web) use. Depending on the number of images involved I would expect that you should still be looking at a figure in the hundreds rather than thousands of pounds

I tried to find some similar photos that are offered for commercial purposes but they all seem to be editorial only photos, couple of them are also marked as "image is restricted to editorial use only", with “no model or property release” in the description, so I guess, they must be editorial only images, and not available for commercial use at all.

The most usual reason images like these aren't available for commercial use is that the photographer / stock agency doesn't have model or property releases for the subjects depicted. These are generally required by the advertising industry to guard against the false endorsement or other potential litigation problems. Neither type of release is strictly required under UK law; the practice originates in the USA although it is now pretty standard 'best practice' everywhere.

My understanding is that stock photo agencies(Shutterstock, Getty, etc) will not sell you those images for commercial use if they don’t have property or model release for them ie. it’s not like you can just buy it and then the onus is on you to provide those releases. In other words, if the image is not available for commercial use off the shelf, you can’t negotiate with stock photo agency and get them? Or am I missing something there?

Despite the detail in your posting, I am not clear about the context in which the images were being used. It may be that if they were generally illustrative and not there to 'sell' your product or service, the use may in fact have been editorial, especially if they were only thumbnail sized. Sadly there is no fixed definition of what 'editorial' means and different stock agencies have different definitions

My website is a commercial website, images were used on the page which sells the service, and they were there to enhance the page, so I am 99% sure they would be considered commercial. Well, with my level of IP knowledge, 99% doesn’t account for much

Not sure if you had explained it already and I didn’t get it, but what I don’t understand and trying to find out is the following: can these ambulance chasers try to charge you(compensation for the previous use) on the basis of the price for the commercial licence, even if the stock image agency they “represent” don’t have the commercial licence in the first place and sells those images for editorial usage only?
In my case(and I am sure there will be many others) it is a very tricky state of affairs – my website is commercial, some of those images are editorial only and yet, they want the commercial usage compensation?

Suing the web “developer” would be next to impossible, not that I would want to anyway. I should have been more involved/informed and unfortunately sometimes you get what you pay for

Unfortunately, I am not a member of any trade bodies, nor do I have any business insurance for this, so the legal advice will have to be paid for by myself. Any recommendations(providing it is allowed on this forum) as to how to go about it and find a lawyer with reasonable rates, and who is familiar with these sort of scenarios?

Lastly, would it help if I changed the title of this thread, maybe to “Editorial vs Commercial usage of the stock photos”? - perhaps it might help with future searches?

Thank you once again for your time and effort, it is so helpful!!

[AndyJ]

Hi again Felix,

I'm not surprised by your assessment that your use of the images would appear to be commercial, but I thought I would mention the possibility of it being editorial, because it is not always clear what is meant by editorial.

The reason that the stock agencies won't made the images available for commercial use even if the licensor agrees to accept liability, is that copyright infringement is a matter of strict liability, ie it doesn't matter if the infringement was unknowing or innocently done (as with you and your web site), and so despite a disclaimer, the stock agency and photographer could become liable if they released images for commercial use knowing that there was a risk. Naturally they don't want the adverse publicity and hassle of being sued, however remote the possibility may be.

This then poses something of a problem when they try to assess the level of damage caused by the infringement. All they can do is look at the hypothetical situation of the rates applicable for similar images which do have releases and are available for commercial use, hence my suggestion that you try and find such images as the basis for your counter-offer. However I think it is safe to say that the figures you have been quoted are not a realistic estimate of the market value, but a disproportionate amount which the claims company hope you will pay. As you intimate in your first posting, these initial claims have all the look and feel of a scam. Indeed there are some so-called legal firms here and in the USA who make a healthy living from such activity, along with the claims management companies like Pixsy which don't necessarily have any legally qualified in-house staff.

In the absence of any relevant rates for similar images, I think the next best step you can take is to assess what you would have been willing to pay for images of this sort at the time you were commissioning the web site. Be realistic, based on what you now know about the value of this sort of image to the appeal and success of your website, and also what you now know about the editorial rates. Then add on about 10 - 15% as an administrative overhead and use that as your counter-offer. While legally speaking you are liable for the infringement caused by your rogue web-designer, it does no harm when dealing with their solicitors to put forward in mitigation that you had a good faith belief that the images had been legally sourced.

To be honest I'm not sure how much use it would be to get professional legal advice. It will add a few hundred pounds in costs and their intervention may at best save you a similar amount in the value of a settlement. But because I don't know the full circumstances of your case I cannot say whether getting legal advice is or is not going to benefit you. Therefore I suggest you use the Law Society's web site to find solicitor who specialises in intellectual property issues, and see if you can get a free initial consultation. You will find the Law Society here. Then using the 'Your legal issue' drop down menu, select Business: Media IT and Intellectual Property. Then enter your post code and see what comes up. Alternatively you can of course consult any solicitor with IP experience irrespective of where they are based, if you are happy to do so in a phone call.

And finally I wouldn't worry about the title of the thread - I'm not sure if you can change it anyway.

[FelixCulpa]

Hi Andy,

Thank you so much for your confidence inspiring, invaluable help!

To be honest I'm not sure how much use it would be to get professional legal advice. It will add a few hundred pounds in costs and their intervention may at best save you a similar amount in the value of a settlement. But because I don't know the full circumstances of your case I cannot say whether getting legal advice is or is not going to benefit you. Therefore I suggest you use the Law Society's web site to find solicitor who specialises in intellectual property issues, and see if you can get a free initial consultation. You will find the Law Society here. Then using the 'Your legal issue' drop down menu, select Business: Media IT and Intellectual Property. Then enter your post code and see what comes up. Alternatively you can of course consult any solicitor with IP experience irrespective of where they are based, if you are happy to do so in a phone call.

I don't have any experience at all when it comes to dealing with lawyers, thank you for the Law Society's link and instructions. Quite frankly, I always thought that dealing with lawyers requires thousands rather than hundreds?

Many thanks!!