I have received a notice followed by a cease and desist from Copyright Agent representing a photographer based in Denmark. They are asking for £600.
I did use the photographer's image on my website, taken from Instagram, and credited to their Instagram page. I understand now that this isn’t sufficient and have now clued myself up on copyright law.
I immediately removed the image when the initial notice was sent.
I’ve read through all the main posts on here and followed the advice given in my emails to them, but they are still insisting £600 is owed.
They have refused multiple times to give a breakdown of what constitutes the fee, the only information they have given me is that:
- the photographer does not offer image licensing but instead “partnerships” that start from €9000 euro, if the matter was to progress they would show the court this proof
- The fee includes damages and compensation for identifying the infringement
I have offered them £180 which they declined and are stating that £600 is the minimum possible compensation they can request.
I have told them I am aware of my rights and what they are able to claim under IPEC if it was to proceed to court.
Is there anything else I can do here, and if it does go to court is there a possibility I can be charged more than the £600? Should I ask for a mediation session?
A couple of extra notes:
- they originally sent me a US cease and desist which claimed the amount owed is $600. They realised their mistake and then sent a UK cease and desist restating that £600 is owed.
- I don’t think any personal information is identifiable from my website. There’s no address or phone number, and my information on WHOIS lookup is hidden.
- I am currently earning under £1000 a month from my job and freelance work and my website earns a minimal amount. The article the image was used on was up for around a month and earned probably a few pennies from Adsense.
I'm honestly happy to pay the photographer after realising my mistake, but don't want to get extorted by a company that's threatening me. Any advice appreciated!
Copyright Agent demanding £600
Re: Copyright Agent demanding £600
Hi Helpples and welcome to the forum.
My first reaction was that if $600 dollars was the original fee they wanted, when this was converted to sterling it should have been £475. But I think we both know that a nice round number is usually a sign you are probably dealing with a rip-off. I have very little idea what they mean by a 'partnership' in this context. Any business relationship would be based on a form of contract and they appear to be unable or unwilling to share what such a contract would consist of.
When faced with the situation where a claimant says that he would not have licensed an image (so, in theory, there is no market rate for it) the courts frequently resort to what is known as the user principle. That is to say, they look at the issue from the perspective of a rational person seeking a particular image and assessing what meets their needs and what they can afford. For instance, if you wanted an image of a particular temple in a particularly remote part of China, but could only find one on offer with a licence fee which was three times what you could afford, you probably wouldn't buy that licence and would either license another image of a similar temple but available at a price you could afford, or do without. Now this doesn't mean that the court would accept the lower figure as the market rate. It helps to set the low bench mark from which a fair amount can be arrived at, with the claimant's figure representing the upper boundary.
As I have explained in other threads, if they want to sue you in the IPEC, and you are prepared to defend the claim, even if the photographer won the full £600 he is claiming, his legal costs will probably be two or three times that amount and he won't be able to get those costs back. No sane person would go ahead with a speculative claim on that basis.
Ultimately your response to the claim rests on your appetite for risk. Looking at things from the outside I would suggest the odds are in your favour if you tough it out. That, of course, is not legal advice and if you have a low threshold for risk, you should consult your own lawyer, who should be someone with Intellectual Property law experience. You can find someone fairly local to where you live through the Law Society website: https://solicitors.lawsociety.org.uk/
My first reaction was that if $600 dollars was the original fee they wanted, when this was converted to sterling it should have been £475. But I think we both know that a nice round number is usually a sign you are probably dealing with a rip-off. I have very little idea what they mean by a 'partnership' in this context. Any business relationship would be based on a form of contract and they appear to be unable or unwilling to share what such a contract would consist of.
When faced with the situation where a claimant says that he would not have licensed an image (so, in theory, there is no market rate for it) the courts frequently resort to what is known as the user principle. That is to say, they look at the issue from the perspective of a rational person seeking a particular image and assessing what meets their needs and what they can afford. For instance, if you wanted an image of a particular temple in a particularly remote part of China, but could only find one on offer with a licence fee which was three times what you could afford, you probably wouldn't buy that licence and would either license another image of a similar temple but available at a price you could afford, or do without. Now this doesn't mean that the court would accept the lower figure as the market rate. It helps to set the low bench mark from which a fair amount can be arrived at, with the claimant's figure representing the upper boundary.
As I have explained in other threads, if they want to sue you in the IPEC, and you are prepared to defend the claim, even if the photographer won the full £600 he is claiming, his legal costs will probably be two or three times that amount and he won't be able to get those costs back. No sane person would go ahead with a speculative claim on that basis.
Ultimately your response to the claim rests on your appetite for risk. Looking at things from the outside I would suggest the odds are in your favour if you tough it out. That, of course, is not legal advice and if you have a low threshold for risk, you should consult your own lawyer, who should be someone with Intellectual Property law experience. You can find someone fairly local to where you live through the Law Society website: https://solicitors.lawsociety.org.uk/
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 Agent demanding £600
Hi,
Thanks for your advice. I’m not certain what partnership means here either, and they’ve been no help clearing this up.
A couple of questions if you wouldn’t mind:
If the case was to proceed to court, would he be able to claim for more than £600 or would he be required to stick to this figure now?
Is there any way they can actually proceed with a case if they don’t have any personal information on me?
Thank you!
Thanks for your advice. I’m not certain what partnership means here either, and they’ve been no help clearing this up.
A couple of questions if you wouldn’t mind:
If the case was to proceed to court, would he be able to claim for more than £600 or would he be required to stick to this figure now?
Is there any way they can actually proceed with a case if they don’t have any personal information on me?
Thank you!
Re: Copyright Agent demanding £600
Hi again,
They can in theory put forward any figure they like for the damages, if it went to court. However that would be a bad move because you could then show that they were previously demanding a lower (though still unreasonable) figure. Since the facts of the alleged wrong (tort) have not changed in the mean time, the court would not accept the higher figure as being justified. This would weaken their case from the outset.
There is a rule of the court known as a Part 36 offer where, if a claimant's damages exceed an earlier formal offer to settle at a lower figure, the court will not award the higher figure. That does not directly apply here as technically the copyright agent's first demand does not meet the criteria for a Part 36 offer. But the principle holds good.
They can in theory put forward any figure they like for the damages, if it went to court. However that would be a bad move because you could then show that they were previously demanding a lower (though still unreasonable) figure. Since the facts of the alleged wrong (tort) have not changed in the mean time, the court would not accept the higher figure as being justified. This would weaken their case from the outset.
There is a rule of the court known as a Part 36 offer where, if a claimant's damages exceed an earlier formal offer to settle at a lower figure, the court will not award the higher figure. That does not directly apply here as technically the copyright agent's first demand does not meet the criteria for a Part 36 offer. But the principle holds good.
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 Agent demanding £600
Hello,
An update, they are now giving me 7 days to pay or they are saying they will take me to court.
"We now give you one final chance to avoid High Court proceedings. To avoid High Court proceedings please take the Three Steps referred to in our letter sent 21 days ago within seven [7] days of the date of this letter.
If you do not take the Three Steps referred to above within 7 days of the date of this letter then High Court copyright infringement legal proceedings will be commenced against you without further notice or warning. In those proceedings, our Partner will seek to recover from you its legal costs of such proceedings, which may be substantial."
An update, they are now giving me 7 days to pay or they are saying they will take me to court.
"We now give you one final chance to avoid High Court proceedings. To avoid High Court proceedings please take the Three Steps referred to in our letter sent 21 days ago within seven [7] days of the date of this letter.
If you do not take the Three Steps referred to above within 7 days of the date of this letter then High Court copyright infringement legal proceedings will be commenced against you without further notice or warning. In those proceedings, our Partner will seek to recover from you its legal costs of such proceedings, which may be substantial."
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stevedavies
- Experienced Member
- Posts: 57
- Joined: Wed Aug 16, 2023 7:38 pm
Re: Copyright Agent demanding £600
Looks like an unjustified threat to me. I get your position financially as I'm in the same boat, with another company.
Surely it will cost them a lot more than £600 to get a lawyer to represent the case, and someone must pay the court fees. There's no financial gain for the claimant at all.
I wasn't clued up on the law either before August last year. I had no idea that some rogue company would come for me after a minor mistake. I've just shut my communication down ahead of whatever their next stages are. I too made an offer and the only offer. The difference with you is you did try to credit it whereas I had no idea it was an absolute requirement.
£600 is nothing but speculative. And I can't see how that threat means that mentioning 9000 euros for a partnership deal justifies the value of the image. That figure is not relevant at all. Perhaps someone else can comment on that. If they truly believed the garbage they say, then why ask for £600.... They pulled that figure out of thin air.
The mistake in currency, saying $600, is laughable. Hope these bullying clowns stop contacting you.
Surely it will cost them a lot more than £600 to get a lawyer to represent the case, and someone must pay the court fees. There's no financial gain for the claimant at all.
I wasn't clued up on the law either before August last year. I had no idea that some rogue company would come for me after a minor mistake. I've just shut my communication down ahead of whatever their next stages are. I too made an offer and the only offer. The difference with you is you did try to credit it whereas I had no idea it was an absolute requirement.
£600 is nothing but speculative. And I can't see how that threat means that mentioning 9000 euros for a partnership deal justifies the value of the image. That figure is not relevant at all. Perhaps someone else can comment on that. If they truly believed the garbage they say, then why ask for £600.... They pulled that figure out of thin air.
The mistake in currency, saying $600, is laughable. Hope these bullying clowns stop contacting you.
Re: Copyright Agent demanding £600
Hi
I can see both sides of the issue at hand here, because I too represent a photographer whose livelihood is constantly under threat from people and companies alike who take his work and publishing it without any thought as to the consequences.
Firstly, I would question where they intend to bring this claim, because in my opinion, they would have to bring it to a UK court, as it happened in this country. Costs involved to do this, would be far greater than the £600 claim!
It sounds as though the agent only handles commissions for the creative. (Ie. Gets him the work) and that the Photographer does not normally resell his work. The most plausible reason being that his work is in highend advertising. Not sure.
I would say that a £600 fee is about right, if this were to include damages for one image. But they would have to put this to you in a "Letter of Claim', outlining the costs.
I would definitely go for mediation, which will be offered to you once the claim is lodged at court. Don't ignore any court correspondence what ever you do.
Good luck.
I can see both sides of the issue at hand here, because I too represent a photographer whose livelihood is constantly under threat from people and companies alike who take his work and publishing it without any thought as to the consequences.
Firstly, I would question where they intend to bring this claim, because in my opinion, they would have to bring it to a UK court, as it happened in this country. Costs involved to do this, would be far greater than the £600 claim!
It sounds as though the agent only handles commissions for the creative. (Ie. Gets him the work) and that the Photographer does not normally resell his work. The most plausible reason being that his work is in highend advertising. Not sure.
I would say that a £600 fee is about right, if this were to include damages for one image. But they would have to put this to you in a "Letter of Claim', outlining the costs.
I would definitely go for mediation, which will be offered to you once the claim is lodged at court. Don't ignore any court correspondence what ever you do.
Good luck.
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stevedavies
- Experienced Member
- Posts: 57
- Joined: Wed Aug 16, 2023 7:38 pm
Re: Copyright Agent demanding £600
My case is a bit different, over a free Flickr CC 2.0 license but relevant here. A letter of claim would also have to show how the amount is calculated. In my case, can't see that looking justified before a judge. Not the so-called "license fee" that Pixsy ask for. And considering they've refused to break down the amount demanded from me. As they can't justify it.
Re: Copyright Agent demanding £600
Hi
I have had a look into Flickr and most photography does require a license of use. Michael Furman whose name has been brought up somewhere along the threads (sorry can't remember where) is an American Car photographer who does still do high end, 'above the line' work. Meaning advertising.
I find this interesting. Whereas most photographers are commissioned on a much lower commissioning fee, and therefore reliant on further sales, advertising photographers really don't tend to be interested in generating money from their work, because they command a much much higher fee to begin with.
Did you manage to get a screen grab of the image on the Flickr site, showing the image
it promoting free non commercial use?
My advice would be to contact Michael directly and tell him what has been going on. Perhaps it is Flickr who incorrectly categorised his work under Creative Commons. If you write a polite letter explaining your personal circumstances also, this may well be a turning point.
All the best
Helen
I have had a look into Flickr and most photography does require a license of use. Michael Furman whose name has been brought up somewhere along the threads (sorry can't remember where) is an American Car photographer who does still do high end, 'above the line' work. Meaning advertising.
I find this interesting. Whereas most photographers are commissioned on a much lower commissioning fee, and therefore reliant on further sales, advertising photographers really don't tend to be interested in generating money from their work, because they command a much much higher fee to begin with.
Did you manage to get a screen grab of the image on the Flickr site, showing the image
it promoting free non commercial use? My advice would be to contact Michael directly and tell him what has been going on. Perhaps it is Flickr who incorrectly categorised his work under Creative Commons. If you write a polite letter explaining your personal circumstances also, this may well be a turning point.
All the best
Helen
Re: Copyright Agent demanding £600
Hi
I have had a look into Flickr and most photography does require a license of use. Michael Furman whose name has been brought up somewhere along the threads (sorry can't remember where) is an American Car photographer who does still do high end, 'above the line' work. Meaning advertising.
I find this interesting. Whereas most photographers are commissioned on a much lower commissioning fee, and therefore reliant on further sales, advertising photographers really don't tend to be interested in generating money from their work, because they command a much much higher fee to behing with.
Did you manage to get a screen grab of the image on the Flickr site, showing the image it promoting free non commercial use?
My advice would be to contact Michael directly and tell him what has been going on. Perhaps it is Flickr who incorrectly categorised his work under Creative Commons. If you write a polite letter explaining your personal circumstances also, this may well be a turning point.
All the best
Helen
I have had a look into Flickr and most photography does require a license of use. Michael Furman whose name has been brought up somewhere along the threads (sorry can't remember where) is an American Car photographer who does still do high end, 'above the line' work. Meaning advertising.
I find this interesting. Whereas most photographers are commissioned on a much lower commissioning fee, and therefore reliant on further sales, advertising photographers really don't tend to be interested in generating money from their work, because they command a much much higher fee to behing with.
Did you manage to get a screen grab of the image on the Flickr site, showing the image
it promoting free non commercial use? My advice would be to contact Michael directly and tell him what has been going on. Perhaps it is Flickr who incorrectly categorised his work under Creative Commons. If you write a polite letter explaining your personal circumstances also, this may well be a turning point.
All the best
Helen
Re: Copyright Agent demanding £600
Hello Helpples, I have a contact in the same position right now. I wondered how you proceeded and the outcome? Thanks.