Distribution of copyrighted work

[IPMatters]

Hello,

The issue we have currently is one of distribution.

We contacted the company using the photographs without permission or license, and they said that they were given the images by the Contractor.

Can you claim against what might be considered a secondary infrindger for the loss of license and for failure to give accreditation, or is this simply got to be treated as distribution and making a claim against the company that shared them out?

Interestingly, the Contractor in question who engaged our photographic services, has kept the metadata intact on the same images on their website, yet the company who they shared the images with had striped the data, meaning they would have been aware of who owned the copyright. In this instance is this not a primary infringement pls?
Hope someone can help.
Many thanks
Helen

[AndyJ]

Hi Helen,

From what you have said here, it sounds as if the contractor may be liable for primary infringement for copying and supplying the images (section 17 ) and the company is liable for secondary infringement in possessing and distributing the unlicensed images in the course of business (section 23). With secondary infringement a defendant can sometimes avoid having to pay damages if they can show that they had no reason to believe the copies were infringing. However if, as you indicate, the company seem to have stripped the metadata from the images this could show that they were aware that the images were subject to copyright which was owned by a third party (ie you) rather than the contractor, and therefore due diligence should have required them to inquire further into this. Stripping the metadata does not in itself prove that they believed the images were infringing images, depending on what, if anything, was said to them about copyright by the contractors. However I think a court would take a dim view of the metadata stripping, assuming this was deliberate. I'm sure you are aware that some photo editing software may automatically strip out metadata.

If there's quite a lot of money at stake here, you probably need to speak to an IP lawyer about how to take matters forward.

[IPMatters]

Many thanks for your indepth reply, which is hugely appreciated.
Not much online regarding accepting images 'in good faith'. Personally I think the same should apply, ie. Everyone should be responsible to check who owns the work before publishing, and not assume that the person who passed it to them for free, is the copyright owner or has a license to do so.
So to recap, the company who accepted the work is likely liable for secondary infringement and the contractor who distributed liable for primary infringement is this correct? And because there is evidence that the company who received the images for free, would have known who owned the images from the data, makes a strong case for secondary infringement?

Yes, annoyingly there is software that strips data, but I strongly believe these people did receive the images complete with data, and that this was ignored!

Many thanks again Andy
H

[AndyJ]

Hi Helen

First of all your last posting got inserted twice so I've deleted the second one, I hope that's OK with you.

And, yes, I think you have the legal situation pretty well correct, as I see it based on what you have told us. Just one correction. You said "the company who received the images for free, would have known who owned the images from the data" but really I think it is more accurate to say ... might have known ... Not everyone knows about metadata* and so unless you specifically look for it the copyright notice wouldn't have been apparent to a casual observer. Obviously if someone at the company deliberately removed the metadata, then that would amount to knowledge on their part.

There is another scenario in which the company said to the contractor words to the effect 'just get me some suitable images, I don't care where you get them from' then that would make then jointly liable for primary infringement, because of recklessness. Obviously this scenario may be hard to prove unless the contractor offers it a part of their defence.

I need to re-iterate that this is not legal advice, it's advice about the law and how it operates in a general way. If you have any doubts about how to proceed with this particular claim, and especially if the amount of money is significant, please follow my advice and consult your own solicitor. You can find a lawyer who specialises in intellectual property law through the Find A Solicitor service provided by the Law Society.


*I am assuming that you mean metadata in the sense of EXIF or IPTC data, and you are not talking about a watermark.

[IPMatters]

Yes, great advice thank you.
Unfortunately we don't have the funds to seek the advice of an IP specialist , and so have had to learn all about the CDPA and the Ipec minefield for ourselves!
Currently the probono office is closed and so I started reading and stumbled across this lovely forum!!
Whilst I agree that the company in question may not know about copyright metadata, my point is that it must have been there for them to see. Whether they chose to ignore it or didn't give it a second glance is not an excuse for a defence in my view.
What I find hard to grasp, is that whereas everyone has to apply due diligence in seeking out the name behind any 'works' of art, why should a secondary infrindger in a sense 'get off the hook' pleading ignorance? Seems wrong somehow.

Also, am I correct in thinking that we can only pursue one and not both infringements as this would be 'double dipping? The Contractor is fighting with words in an attempt to rewrite our terms and conditions, and the Company who blindly accepted the work for free have simply pushed the problem back to the Contractor!!

Hey, thanks again for all your advice. Appreciated.

Helen

[AndyJ]

Hi Helen,

I can understand the problem of funding legal advice. The cost can soon mount up!

Taking your second question first, you may indeed pursue both defendants, since they have both in their own way deprived you of income to which you are entitled. However I am not entirely clear about your precise original business arrangement with the contractor, so I would not comment further on that.

And returning to the issue of a secondary infringer avoiding damages, this would only become relevant if the case went to court, and at the moment I suspect that is not something you want to get involved in, because it would certainly involve extra costs. But if in that unlikely event, the defendant accused of secondary infringement claimed that they had no reason to believe that the images they obtained from the contractor were infringing copies, they would need to prove this to the court. As has been said, a certain amount of due diligence would be expected. For example if they believed that the contractor had obtained the necessary licences for the images, was the cost of this shown separately on the invoice? Did the company know how long the licences were for? I suspect that it much more likely that there was a degree of confusion between the company and the contractor about how the images were obtained. And of course the evidence you have about the removal of the metadata needs to be explained. My feeling is that each of the two parties may try and shift the liability onto the other, and if they do so, gaps will appear which you can exploit.

Because I am legally not allowed to provide you with legal advice on which you then conduct your litigation, because we are not in a solicitor/client relationship, I can only speak in general terms. Let's look at an example of a Company A who asks a graphic designer B to design some eye-catching packaging and associated advertising material for A's product. B approaches a photographer P for some packshots which will be worked up into the design of the packaging etc. B does not tell P that the work is for A, and doesn't give any details of the extent of the commission that B has received from A. P quotes for the job based on supplying B with the images, but nothing is specifically mentioned about a volume licence. P obviously does not transfer his copyright to B and B, being an experienced graphic designer, knows that such a licence will be required before A can go ahead and arrange large volume printing of the packaging based on B's designs. B gets paid for the work but does not inform A that A needs to negotiate a volume licence with P. In that scenario B is primarily liable for infringement for distributing the copyright images to A without the necessary licence from P, and A will probably be liable for secondary infringement (possessing in the course of business), but will be unable to claim that he had no reason to suspect the photography within the packaging design was being infringed by being distributed as packaging for his product, because any reasonable business in the same position would have sought indemnities from B that the images were fully licensed.

A second scenario might be that A claims that they were assured by B that the images were fully licensed for the exact purpose that A wanted them for, thus appearing to put all the blame on B. B is not going to carry the can on his own, and so comes back with some evidence that he did tell A where the images came from and B will further assert that he told A that he (A) needed to arrange the necessary licences. This is the kind of gap I am talking about which you may be able to exploit in your negotiations, although obviously the circumstances of your case will be different.

Please ask any further general questions about the law if you have them, but remember that it would be unethical for me to provide specific legal advice on how to conduct your litigation or any pre-litigation steps. An exchange of postings on a public forum does not come close to due diligence!