Copyright infringement (meme)

[LolaHeavey]

Hello,

I have been contacted by a division of Science Photo Library (https://sciencephoto.com). Because I uploaded a meme to Twitter (now deleted) they say I have to pay them the exorbitant figure of £9,048 by today or face legal proceedings. Is there a way I can defend myself? Thousands of memes get uploaded to social media every day.

The meme in particular can be found online. For instance:

https://imgur.com/EK0kI

https://boingboing.net/2018/06/27/suppl ... sus-4.html

https://www.thechristianmyth.com/why-yo ... s-beliefs/

http://www.fairfaxunderground.com/forum ... 37879.html

Many thanks.

[AndyJ]

Hi Lola,

I think we can assume that the figure of £9,048 is complete fiction. Having done a very quick search of their website, I can't find that particular image on Science Photo Library. Doing a reverse image search also does not lead back to Science Photo Library. It does lead to around a dozen or so other uses of the image with and without the added text, and in particular to this page: Structurae.net. Note the licence which says

This creative work may be used freely for private, academic or research purposes only as long as both the author and Structurae are credited properly.

That information in turn leads us to this page about licensing use of the image, where once again there is no mention of Science Photo Library.

I very much suspect that you didn't provide the necessary credit required by the person claiming to be author of the image, Nicolas Janberg, who coincidentally is the Chief Editor of Structurae. That means that you can't make use of the licence I quoted above, but the fact that the image is being made available for free substantially undermines the fee of £9,048. We haave talked about this situation before with regard to Creative Commons licences, which is a similar situation to this one (see links below).

I think you should contact SPL and ask them to provide a breakdown of the fee they have demanded and ask them for proof that they are acting on behalf of the copyright owner, who on the presently available information appears to be Nicolas Janberg, and who is handling his on licensing. Obviously, by seeking this information you are not admitting any liability, and indeed if they fail to provide a reasonable basis for the fee (which I think we can agree they won't be able to do) then you can decline to have any further dealings with them.

Threads dealing with claims involving Creative Commons licences:
https://copyrightaid.co.uk/forum/viewtopic.php?p=9887
https://copyrightaid.co.uk/forum/viewtopic.php?p=10458

[LolaHeavey]

I think the photographer is Scott Frances and the licensor of the image is Otto Archive. And the letter is legit because I was also speaking with them just now. The whole thing is absurd. Thousands of memes are uploaded every day to social media and I didn't even create the meme, just shared on Twitter.

Thank you so much for your help!

[AndyJ]

Hi Lola,

Sorry, yes it's a different image to the one I found. However that doesn't minimise the fact that fee being demanded is ridiculous.
So let's look again at the situation. Did you actually first copy the image onto your own device and then paste it to your twitter account? Or did you create a link on your Twitter to the place you found the meme? If it's the latter, then at no stage have you copied this image. When you re-tweeted it all you did was to make the image available to the public. So taking that a stage further, if you only used a link, the European Court of Justice (CJEU) has already ruled in three separate cases that merely linking to an image which is freely available on another website does not infringe the making available right. It is immaterial whether the place you linked to was displaying the image with the copyright owner's permission or not. The three cases are called Svensson, Bestwater and GS Media. You can google the cases if you wish or search on the forums here as we have mentioned them many times. Again assuming the second option, since you did not tweet the meme for monetary gain you are not obliged to carry out any checks about the provenance of an image before you make it available by linking (this was set out in the GS Media case).

So I hope that the second option is the one you followed as, on that basis, you can tell SPL to go away and annoy somone else! Please don't tell us if it was the first option (ie you copied the image onto your device first) as that would be an admission which you ought not to make on an open forum, just in case SPL are monitoring this site.

I hope this helps.

[LolaHeavey]

As I stated I uploaded the meme to Twitter, just like thousands of people upload memes to Twitter, Facebook, etc.