Copyright infringement claim from Rights Control - Science photo library

If you are worried about infringement or your work has been copied and you want to take action.
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PatG
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Copyright infringement claim from Rights Control - Science photo library

Post by PatG »

Hello - I've followed the Permission Machine thread for some months and have received the below from a similar organisation, though part of the photo agency I think - Rights Control seem owned by Science Photo Library


I'm a one-person UK local news website and understand basic copyright law - in 2018 I used an image from a piece from our city University asking for sufferers of a disease to contact them and be part of the research - I must have sourced the image - I haven't got the original email from the uni and can't prove it was licensed. In 10 years of operating it's my first claim

It reads:

We are contacting you as we have become aware that you are currently, or have recently used an image represented by Science Photo Library Limited on your website. Unfortunately, we've been unable to trace any record of a valid license for the use of the image. Using an image without a valid license is considered copyright infringement in violation of the Copyright, Design and Patents Act of 1988. This entitles Science Photo Library Limited to seek legal remedies in any appropriate court.

To see the image in question, please click on the following links:
URL: provided

Image URL: provided
Detail of Image & sum owed:
Case Reference: 67130
Image Number C019/7581
Amount Due: £4,116.00
Amicable Settlement (if paid within 14 days): £1,528.80
DEADLINE FOR CLEARED FUNDS: 31 May 2022
In addition to the above suspected copyright infringement; the image have not been credited to the photographer. This is an infringement of their moral rights and entitles the photographer to significant financial compensation. As the exclusive licensor of the image Science Photo Library is contractually obliged to collect fees for usage, copyright infringement and the violation of the moral rights for the photographer through its UK office.

The following actions must be taken within 14 days from the date of this letter. Failure to do so could result in larger fees and possible legal proceedings.

If you believe a valid license has been issued for the image and use, please email the license information to: rightscontrol@sciencephoto.co.uk including the sales order or invoice number of the license purchase. If the image was licensed in the name of a third party such as an advertising agency, please provide the company name and phone number/contact details. The subject line of the email should include your company name and the case reference number.

If you are unable to provide proof that the image(s) has been properly licensed, you must immediately cease use of the image, delete all copies of the image(s) and provide payment for the unauthorised use of the image. Regrettably, removing the image from use does not eliminate liability for payment of fees.

If you desire continued use of the image, please contact rightscontrol@sciencephoto.co.uk.
Please refer to the attached document to this email which outlines the fees which are now due to Science Photo Library Limited. It also includes a significantly reduced, amicable settlement offer which is valid for 14 days. If we do not receive a timely response from you, the case may be escalated to the small claims division of the Intellectual Property Enterprise Court, a solicitor or other third party.

Enclosed:

A full breakdown of usage details and fees.
Copies of screenshots showing the use of the listed image on your website.
Frequently Asked Questions which, will provide more information and advice.
Science Photo Library Limited is committed to protecting the intellectual property rights and livelihood of the artists whose work we license and to investigating licensing infractions not only to protect our interests, but also to protect the interests of the professional photographers whom we represent. We must enforce our licensing conditions rigorously and we appreciate your prompt cooperation regarding this matter. This letter is without prejudice and does not affect Science Photo Library‘s Limited rights and remedies, all of which are expressly reserved.

Yours faithfully


END

The attachment of costs reads:


Due on Receipt:
Standard License Fee £245.00
Post use licensing Surcharge £1,225.00
Surcharge for not crediting the image £245.00
Infringement Detection Fee £857.50
Infringement Collection Fee £343.00
Case Management Fee £514.50
Plus VAT 20% £686.00
Total £4,116.00


...and adds


Amicable Settlement Offer- valid for 14 days from the above date:
Standard License Fee £245.00
Post use licensing Surcharge £245.00
Surcharge for not crediting the image £245.00
Infringement Detection Fee £318.50
Infringement Collection Fee £0.00
Case Management Fee £220.50
Plus VAT 20% £254.80
Total £1,528.80



What should I do? Do the answers in the permission machine thread match this situation to? Should I offer the license fee and and admin estimate?

Thank you

Pat
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AndyJ
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Re: Copyright infringement claim from Rights Control - Science photo library

Post by AndyJ »

Hi Pat,

Yes, the type of operation here is pretty much the same as that of Permission Machine and the others. That is to say, it's perfectly legal, but lacks any moral credibility. Therefore you can adopt the same approach as we have suggested when dealing with Permission Machine (or KodakOne, Picrights, etc for that matter). The only difficulty which may arise in your case is finding out the correct licensing fee. I very much doubt if the figure of £245.00 which they quote is the true one*. If that is really what they charge for some of the very unimpressive images I looked at on the website, then I'm surprised they do any business, since something quite similar could probably be found elsewhere for a tenth of the cost. It might be worth contacting the university where you found the image in the first place to ask how much they paid for their licence.

The point to note is that in civil proceedings, if this claim were to go that far, the aim is to put the claimant into the same position as he would have been in had a standard licence been obtained. All the nonsense about surcharges, detection, collection and case management fees etc are all totally inadmissible in a civil claim.


*A search on their website using the Image Number (C019/7581) quoted in their breakdown does not find the image.
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
PatG
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Re: Copyright infringement claim from Rights Control - Science photo library

Post by PatG »

Thanks AndyJ

I’ll start there then

I did find the image it is unimpressive

I’ll try the Uni

You have to create an account to get a price which I have done, but then when you find the image and order it ( add to basket ) it says you have to contact because it’s rights managed based on usage

Does that change anything?

- I doubt there’s a way to find out this true fee unless I contact them and ask them - assuming they’re not joined up as departments it might be worth a try - or just suck it up and accept that fee in my offer


I really appreciate your help thank you
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AndyJ
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Re: Copyright infringement claim from Rights Control - Science photo library

Post by AndyJ »

Pat,

As I'm sure you know, Rights Managed licences are intended for one time use of an image for a specific purpose. The rate will usually depend on whether you are seeking any sort of exclusivity and would typically be calculated on the normal number of visits your website receives over a given period. It will also take into account whether the use is to be editorial or commercial in nature. Since yours is a news website, I imagine that after initial publication, older articles get much fewer reads over time, and clearly you would not have sought an exclusive licence since you were aware that the university had already published the image. These two factors should mean that the hypothetical cost of an RM licence in your case should be on the lower end of the scale.

While it is not strictly relevant to this stage in negotiations (but it would be if you had to argue the matter in court) the process of arriving at the true market value of the licence assumes the situation of a willing buyer and a willing seller. That is to say, if you had been seeking a licence at the time you wrote the article, you would only have been prepared to pay so much for that licence. If SciencePhoto had been asking, for example, for a fee of £245 at the time, you might well have not taken their licence and gone elsewhere for a similar, cheaper image. The court could take this into account when it decides on the appropriate level of damages.

The other matter which I didn't address in my earlier posting was the matter of an increased claim for damages because a credit for the photographer was not provided. Again we are in the area of hypotheticals, but if the university site did not provide a credit then there is no way in which you could have done so, given that at that point you were not negotiating with SciencePhoto so could not have known whether or not a credit was required, or indeed have known the identity of the person concerned. Under UK law the author of an image needs to assert the right to a credit beforehand (see section 78 of the Copyright Designs and Patents Act 1988) and there are only limited circumstances in which a third party may be deemed to have knowledge of such an assertion. Where it can be established that the right to credit was required and that you were deemed to have knowledge of that fact, and the credit was omitted, then this might typically double the amount of the standard damages. While copyright infringement is a matter of strict liability (ie ignorance of the fact that an inage was protected by copyright is immaterial), failing to provide a credit is a breach of the author's moral rights and as such is a breach of statutory duty (see section 103 CDPA), and would need be proved by the claimant on the balance of probabilities.
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
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