Copyright infringement Case in Court from Photography

If you are worried about infringement or your work has been copied and you want to take action.
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Copyright infringement Case in Court from Photography

Post by MattCraft »

I'm hoping somebody can help me please, I'm a graphic designer and I have created a website that can be similar to Google Images, but it's only for desktop wallpapers.

I understand that Google images have their own bots to show images, so I started to collect beautiful images from google manually (by searching for free images) and also downloading free images from other free wallpapers sites which offering free images.

I have created a large desktop wallpapers site and I have removed some of (other wallpapers website watermarks) since they don't own the images (I always keep the photographers copyright watermarks if there is any on the images) and I have added my website signature watermark on the images so I can promote and advertise my wallpapers so people can see my website address and come to download free images, (all wallpapers websites doing it).

I have created a LEGAL Disclaimer page at my website (my website is a community supported website with the majority of the published content being uploaded by our user community or collected from a wide range of sources including free image repositories and websites. Although published content is believed to be authorized for sharing and personal use as desktop wallpaper either by the uploader / author or for being Public Domain / Free Culture licensed content, unless otherwise noted in the wallpaper description, all images on this website are copyrighted by their respective authors, therefore, if you wish to use these images for any other use you must get permission from their respective authors.)

I respect the copyright work of others and I receive many DMCA removal notices to my website and from my server and I always comply and I remove any image that have any copyright problems.

Last year, I have received a letter of (Copyright Infringement Claim Notification / Case ***** Unauthorized Use of' Images / Photographer: Sam Mugraby) stating that i had used his copyrighted image without a license and he owns the image and have it registered with the US copyright office and he claims that I have removed and cropped his copyright information (which is incorrect, the wallpapers script automatically had my watermark on top of his copyright watermark on the image corner), the photographer requested that I cease and desist and to remove the image from my website and he also requested a payment of 300$ to settle the matter and to be paid within 14 days or he will take further legal action, I have removed the image from my website page and I have informed the photographer that my use is considered a fair use, and i am offering free service similar to (Google Images, Bing Images) and I am protected as a service provider from legal action.

I offered the photographer credit and a link back on his photography website or I can remove the image if he insist, but I will not be paying super high fee for just an image, I have explained to the photographer that I didn't sell the image and I didn't make any money from it, and I am promoting and advertising his images and he should be thankful for the free promotion and advertisement, I am just sharing images that can be found on the internet and there is tons of websites that share the same content, and if he want to sue someone he should start by suing google.

I was using OrangeWebsite (Icelandic Web Hosting with Free Speech) to host my website and images because (they don't disclose any subscriber information to law enforcement or other agencies), and my contact information is hidden and private, and I am using Cloudflare to hide my server information and also my personal data should be protected under GDPR.

Few months ago, I was surprised later that OrangeWebsite hosting suspended and deleted my website, and I have lost all my images.

Now, I have been informed that there is a case filed against me at the Intellectual Property Enterprise Court for copyright infringement !! and I have also received a letter from a large law firm in London claiming to act on behalf of the photographer Sam Mugraby, is there is any base for any copyright infringement!! as far as i know US law is irrelevant in the UK, and I am not doing anything wrong here, I am service provider and I have disclaimer page at my website and I have removed his image already last year, I am just sharing images online the same as google images, and my website is no longer active.

Can anyone provide any advice on how to proceed?
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Re: Copyright infringement Case in Court from Photography

Post by AndyJ »

The first thing I should say is be careful not to miss any deadlines for filling you reply and defence to the claim; if you do there’s a danger the case will be decided in your absence, or at least without the court having the benefit of hearing your side of the story. That would mean the claimant would automatically be awarded all the damages he is seeking, however unreasonable they may be. If you don’t already have a copy of the IPEC Small Claims Guidelines, download a copy and make yourself familiar with the procedure.

Second, if there is more than about three hundred pounds being demanded here, you should seriously consider engaging a solicitor. You can do this through the Law Society website. Just select Media, IT and Intellectual Property from the ‘Your legal Isuue’ box and put your own location in the box on the right hand side, to find an appropriately IP-qualified solicitor; don’t use a normal high street solicitors as they won’t have the specialist knowledge to really help you. If you do contact a solicitor they may offer you a free 20 minute telephone consultation in which you can explain your position and hear from them the various options, and their costs, which are open to you. One of these options might be for the solicitor to just draft your written defence, and leave you to appear in court unrepresented (not quite as scary as it sounds), or alternatively they will quote for fully representing you throughout the litigation. This latter course is likely to take their fees into the thousands, so careful that you don’t end up paying more that you would have done if you had settled, or indeed decide to settle, the claim before the hearing. One of the things I would expect a solicitor to advise you on is using arbitration or mediation to reach a settlement. This will undoubtedly be cheaper than going to court but will only be viable if the photographer agrees to it.

Thirdly, since you are now technically involved in litigation I can’t advise you on your case here. That is the job of your own legal advisor if you choose to get one. What I can do is outline what the law says about a case like yours. And while you may feel that US Copyright Law is irrelevant here (it isn’t!) I hope to show you that UK law is equally up to the job and will no doubt form the complete basis of the claim you have received.

There is no doubt from what you say that you have copied this particular image. Unless you have a valid defence, this is infringement contrary to section 17 of the Copyright Designs and Patents Act 1988. One defence would be that you have a valid licence to copy the image, for instance a Creative Commons or similar licence. If you can’t produce one, there may be a statutory exception (see sections 29 to 31). However I can’t see one which would seem to fit your circumstances.

Next, you are making the images you have accumulated on your site available to the public. That, without a lawful excuse is infringement contrary to section 18. You say that you are just doing the same as Google Images, but in fact that is not so. Google provides links to images on the sites where their bots found them; it does not store full quality images on its own servers in the way that you have done. It is able to make use of low resolution thumbnails as part of its cached results listing thanks to a US court case known as Perfect10. Although this precedent doesn’t apply in the UK, and as far as I know there has never been a similar challenge to Google in the UK, but if there ever was to be a UK case, I think a similar line of argument to that in the Perfect10 case would allow Google to win here too. Your other point is that you are service provider and thus have protection from liability. If you were merely operating a hosting site such as Pinterest where your users uploaded images to your site then you would enjoy some limited immunity with regard to the actions of those users, until you became aware that an image was infringing. However that is not the case with your site. You have said you actively collect and modify the images, and even if you believe they all have the correct licences, you are still liable if you make a mistake and wrongly accept a purported or bogus licence at face value.

And lastly a failure to provide a credit to the photographer where this is required would be infringement contrary to section 77, again unless you have a lawful defence (see Section 79). As you have said the photographer’s credit is on the image, but just obscured, I think that establishes that he had asserted his right to a credit. I leave it to you to decide whether or not you think any of the other defences apply. If you don’t think they do, you are left with trying to convince the court that you didn’t remove the credit, but that it became obscured by your automated process. I express no opinon on that.

I’m sorry I can’t be more helpful but I hope you understand why that is. Your own solicitor should be able to give an honest assessment of the strength of your position and which way forward serves your best interests.
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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