Hello, I hope this is the right section for this, it's a bit of a long story which goes back to 7 years ago. It involves 5 Images.
I am UK based and I run a Glamping business which I started when I was at University, I was 20 at the time. In 2016, the photographer was walking around the campsite. He wandered into my area and offered to take pictures for me of my tents, I did not ask him to do this. I remember asking if he was sure and he said “Of course, I’m more than happy to take pictures for you, you can use them for your business, it’s nice to help a young entrepreneur out”. I remember this particularly as I had a really bad check in of customers that day and his offer stood out as really kind at the time. I also have two witnesses who recall this. At the time, the photographer was working a freelancer for the event company who's event I was doing the Glamping at, so I knew him relatively well as I did a lot of events for the same company.
He gave me the impression and verbally agreed with me at the time, that he was acting in good faith and providing a nice gesture of goodwill to help me, he did not at any point state these images would cause a copyright infringement if I used them or disclose any fees to use the images for my new business. If I had known this was the case, I would have declined his offer to take these pictures.
The photographer knew full well it was for a separate business, away from the events company that put on the event, as we spoke about it whenever we crossed paths, as I would always ask him how his business was going and vice versa. Not that I knew what it was at the time, but upon recent research I therefore feel I had an implied license to use these 5 images that he took for me. I obtained these images as he sent them on to the events company in an email, which I have evidence of, and in the email, it states to please pass the images onto myself. These images never went on my website but I uploaded them to Facebook.
So 7 years later, he is now coming after me, saying I owe him for 7 years of usage at £150 per annum per picture total £5,250. One of the five photos in question was also made as the Facebook header photo (the larger photo) and he is also claiming I owe him £250 per annum usage of this too on top, total £1,750.
Grand total £7,000
His emails are threatening and unsavoury, saying as my business was run as a sole trader that my personal assets are liable and that if I don't agree to his settlement figures within 2 weeks, he will increase the price to what he has evidence of charging other customers because he is currently giving me a discounted price.
Any help with this would be greatly appreciated.
Thank you
Copyright Infringement 7 Years After Being Given The Images
Re: Copyright Infringement 7 Years After Being Given The Images
Hi Finelight and welcome to the forum,
There are several things to look at here. The first is that, based on what you have said, it is fairly clear there was an implied licence for you to use the images without payment. The primary evidence for this is the email he sent to the events company enclosing the images for you. It would be ideal if you still have a copy of the email, or failing that, that the events company have their copy. Since this was the only formal written correspondence on the issue, it is important to see exactly what it said. Clearly if the issue of fees was not raised at all at that point, and you have witness evidence that it was not discussed before he took the pictures, then I can't see how his claim can stand since it seems clear that you were left with the impression that these images were going to be provided gratis. My one concern is that, if the email still exists, it may also cover the fees that the photographer charged the events company with whom he does appear to have had a contractual relationship, and he may argue that these fees were also intended to cover the images he sent for you. However even if he does argue that, the fact that these terms were not communicated to you means that your belief that the images were provided for free, per your inital conversation with him, is reasonable in the circumstances.
The next point concerns the timescale. If the images have been up on your Facebook page for the whole of the seven year period, then his claim is out of time. Section 2 of the Limitation Act 1980 sets a limit of six years in which to bring a claim of this sort, based on the date when the copyright owner can reasonably have been expected to discover the alleged use without permission. Since he knew who you were and about your business, and had sent you the images, it is reasonable to expect that he could have become aware of their use at the earliest opportunity. He cannot claim that he has only just discovered their use, unless of course you have only just put them up, in which case he can't claim they have been used for seven years. Even if he can provide evidence for why he couldn't find them before now, the fact that they were offered to you seven years ago and he has only just decided to complain about it now could lead to a defence of laches. This means that as the photographer was aware of the likelihood that you might use images (because he had supplied them to you) and had not received any payment, but nevertheless took no action over the period of seven years, he is now prevented from bring a late claim after allowing or neglecting to ascertain if there was any alleged infringement during the period of seven years.
And finally there is the question of the amount being demanded. In my view, bearing in mind these are relatively unsophisticated images used for publicity purposes by a small business, the level of these fees appears to be disproportionate. Clearly, had you been advised that these were his terms at the outset you would not have agreed to have the photographs taken. If the matter went to court, the photographer would need prove to the court that these were his standard fees at the time the work was undertaken. I assume that work that he did for the events company was commissioned by them, and therefore it would be interesting to see what fees he charged them at the time. The fees he is able to charge today are irrelevant. As you are not in a contractual relationship with him, his threats to increase the fees if you don't settle promptly are unenforcible and could be deemed oppressive.
Since the amount being demanded is fairly large, I would advise you to get your own legal advice. If you can get an appointment with Citizens Advice that would save you paying any lawyers fees, but if you do need to get a solicitor to advise you, make sure you choose one with Intellectual Property law experience. This isn't a standard money claim which can be handled by the county court. If it were to go to court it would be dealt with by the Intellectual Property Enterprise Court (IPEC) Small Claims Track. To find a suitably qualified solicitor, go to the Law Society website and under the tab 'Your legal issue' select Media, IT and Intellectual Property and then complete the other box for your part of the country, and see what results come up. Initially you should be offered a brief free telephone consultation which will allow you to outline your problem and get some basic guidance on how to handle the matter. Make sure that you are clear about any legal costs before you go ahead and let the solicitor carry out any work on your behalf. Expect to pay around £200-300 for a basic solicitor's letter rebutting the claim, something I think you can probably do yourself if you feel sufficiently confident about it. Don't ignore any official claim form that comes from the court. If you fail to respond in time, the photographer could get a default judgment against you which, since you would not have had an opportunity to put your side of the case, could mean damages being awarded against you at whatever level the photographer dreamed up.
Please come back with any other questions you may have about the law and its operation, but be aware that I can't, by law, adivse you on the specifics of how to handle any litigation. Good luck.
There are several things to look at here. The first is that, based on what you have said, it is fairly clear there was an implied licence for you to use the images without payment. The primary evidence for this is the email he sent to the events company enclosing the images for you. It would be ideal if you still have a copy of the email, or failing that, that the events company have their copy. Since this was the only formal written correspondence on the issue, it is important to see exactly what it said. Clearly if the issue of fees was not raised at all at that point, and you have witness evidence that it was not discussed before he took the pictures, then I can't see how his claim can stand since it seems clear that you were left with the impression that these images were going to be provided gratis. My one concern is that, if the email still exists, it may also cover the fees that the photographer charged the events company with whom he does appear to have had a contractual relationship, and he may argue that these fees were also intended to cover the images he sent for you. However even if he does argue that, the fact that these terms were not communicated to you means that your belief that the images were provided for free, per your inital conversation with him, is reasonable in the circumstances.
The next point concerns the timescale. If the images have been up on your Facebook page for the whole of the seven year period, then his claim is out of time. Section 2 of the Limitation Act 1980 sets a limit of six years in which to bring a claim of this sort, based on the date when the copyright owner can reasonably have been expected to discover the alleged use without permission. Since he knew who you were and about your business, and had sent you the images, it is reasonable to expect that he could have become aware of their use at the earliest opportunity. He cannot claim that he has only just discovered their use, unless of course you have only just put them up, in which case he can't claim they have been used for seven years. Even if he can provide evidence for why he couldn't find them before now, the fact that they were offered to you seven years ago and he has only just decided to complain about it now could lead to a defence of laches. This means that as the photographer was aware of the likelihood that you might use images (because he had supplied them to you) and had not received any payment, but nevertheless took no action over the period of seven years, he is now prevented from bring a late claim after allowing or neglecting to ascertain if there was any alleged infringement during the period of seven years.
And finally there is the question of the amount being demanded. In my view, bearing in mind these are relatively unsophisticated images used for publicity purposes by a small business, the level of these fees appears to be disproportionate. Clearly, had you been advised that these were his terms at the outset you would not have agreed to have the photographs taken. If the matter went to court, the photographer would need prove to the court that these were his standard fees at the time the work was undertaken. I assume that work that he did for the events company was commissioned by them, and therefore it would be interesting to see what fees he charged them at the time. The fees he is able to charge today are irrelevant. As you are not in a contractual relationship with him, his threats to increase the fees if you don't settle promptly are unenforcible and could be deemed oppressive.
Since the amount being demanded is fairly large, I would advise you to get your own legal advice. If you can get an appointment with Citizens Advice that would save you paying any lawyers fees, but if you do need to get a solicitor to advise you, make sure you choose one with Intellectual Property law experience. This isn't a standard money claim which can be handled by the county court. If it were to go to court it would be dealt with by the Intellectual Property Enterprise Court (IPEC) Small Claims Track. To find a suitably qualified solicitor, go to the Law Society website and under the tab 'Your legal issue' select Media, IT and Intellectual Property and then complete the other box for your part of the country, and see what results come up. Initially you should be offered a brief free telephone consultation which will allow you to outline your problem and get some basic guidance on how to handle the matter. Make sure that you are clear about any legal costs before you go ahead and let the solicitor carry out any work on your behalf. Expect to pay around £200-300 for a basic solicitor's letter rebutting the claim, something I think you can probably do yourself if you feel sufficiently confident about it. Don't ignore any official claim form that comes from the court. If you fail to respond in time, the photographer could get a default judgment against you which, since you would not have had an opportunity to put your side of the case, could mean damages being awarded against you at whatever level the photographer dreamed up.
Please come back with any other questions you may have about the law and its operation, but be aware that I can't, by law, adivse you on the specifics of how to handle any litigation. Good luck.
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
Re: Copyright Infringement 7 Years After Being Given The Images
Sorry to butt in on this post. I am a bit confused about the application of section 2, limitations act 1980. If, theoretically, you loaded an image on a website, say, 15 years ago, infringing a copyright, and it has been on the website all that time, does that mean that legal action can not be taken against you, as it is more than 6 years ago, since the action of infringement happened?
Re: Copyright Infringement 7 Years After Being Given The Images
Hi jblake and welcome.
It's not quite that simple. As long as the infringement continues, the tort is actionable, so the Limitation Act doesn't kick in. However the case above is different in that the copyright owner appears to have known about the use of the images (which he maintains is without a licence) from the beginning and so he has to bring the action within a six year period from the point of having that knowledge, or risks being prevented from doing so due to laches.
It's not quite that simple. As long as the infringement continues, the tort is actionable, so the Limitation Act doesn't kick in. However the case above is different in that the copyright owner appears to have known about the use of the images (which he maintains is without a licence) from the beginning and so he has to bring the action within a six year period from the point of having that knowledge, or risks being prevented from doing so due to laches.
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