Limitations Question Regarding Infringements of my image

[darthvader]

Hi everyone,

I’m new here, but have been really impressed with the knowledge of so many of you on here.

I’ve been reading through the forums trying to get a match to my specific situation but I haven’t managed to find one.

One of my photographs was used without my permission or license by a newspaper on multiple occasions on their news site. Various different articles used the image, many of which were initially published over 6 years ago (only just outside of the limitations period).

Some of the articles were within the 6 years.

My question is, does the limitations clock start at the point the images were removed by the newspaper after I contacted them, or does it start at the point of publication?

I have seen various different opinions on this site here regarding this.

I would really appreciate some help and pointing in the right direction to the specific areas of literature I should read to get a definitive answer.

Thanks everyone

Ken

[AndyJ]

Hi Ken and welcome.

The limitation period starts when the tort is committed, so in your case when publication occurred. There have been cases when it was successfully argued that because the infringer took steps to conceal his actions, and the fact of the infrinement could not be readily discovered by the rights owner, then the limitation period would then start when the infringement was discovered. This is based on section 32 (1)(b) of the Limitation act 1980 which says

(1) Subject to subsections (2), (3) and (4B) below, where in the case of any action for which a period of limitation is prescribed by this Act, either—

(a) the action is based upon the fraud of the defendant; or

(b) any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant; or

(c) the action is for relief from the consequences of a mistake;

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.

Just for clarity none of the provisions in Subsections (2). (3) or (4B) apply here, so I haven't included them. You can read the whole of the Limitation Act here. It cannot be argued that publication in a physical newspaper could amount to concealment. However publication on a digital site behind a paywall might amount to concealment, but, in my opinion, it would need skillful arguing to convince a court, assuming that the newspaper defended the claim.

Each new publication of the infringing image is a new occurrence giving rise to a new limitation period, so you only need one to be within the 6 year period to have a valid claim. Furthermore if you had previously notified the same newspaper on a prior occasion that your image had been used without permission in breach of your copyright, you may be able to ask for additional damages in respect of a current claim because their action in the later publication was flagrant or reckless as they were already on notice following the earlier breach. However you can't now bring a claim for any publication which occurred more that 6 years ago.

[darthvader]

Hi Ken and welcome.

The limitation period starts when the tort is committed, so in your case when publication occurred. There have been cases when it was successfully argued that because the infringer took steps to conceal his actions, and the fact of the infrinement could not be readily discovered by the rights owner, then the limitation period would then start when the infringement was discovered. This is based on section 32 (1)(b) of the Limitation act 1980 which says

(1) Subject to subsections (2), (3) and (4B) below, where in the case of any action for which a period of limitation is prescribed by this Act, either—

(a) the action is based upon the fraud of the defendant; or

(b) any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant; or

(c) the action is for relief from the consequences of a mistake;

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.

Just for clarity none of the provisions in Subsections (2). (3) or (4B) apply here, so I haven't included them. You can read the whole of the Limitation Act here. It cannot be argued that publication in a physical newspaper could amount to concealment. However publication on a digital site behind a paywall might amount to concealment, but, in my opinion, it would need skillful arguing to convince a court, assuming that the newspaper defended the claim.

Each new publication of the infringing image is a new occurrence giving rise to a new limitation period, so you only need one to be within the 6 year period to have a valid claim. Furthermore if you had previously notified the same newspaper on a prior occasion that your image had been used without permission in breach of your copyright, you may be able to ask for additional damages in respect of a current claim because their action in the later publication was flagrant or reckless as they were already on notice following the earlier breach. However you can't now bring a claim for any publication which occurred more that 6 years ago.

Hi Andy. Thanks so much for your response. This is super helpful.

Is simply leaving an image on a website considered a new publication (and a new infringement)? Or is the infringement only the moment that the image was uploaded to the infringer's website? Also, if one of the infringements of the same image occurred within the 6 years, does that restart the clock for all the infringements?

Ken

[AndyJ]

Is simply leaving an image on a website considered a new publication (and a new infringement)?

No

Or is the infringement only the moment that the image was uploaded to the infringer's website?

Yes. But just to be clear, 'infringement' occurs for the entire time that the image is being displayed on the newspaper's website, but consists of a single instance if it was published in print. However the Limitation Act speaks about the limitation period commencing at the point that the cause of action accrues. 'Accrues' in this context means 'comes into being', and it is not related to the length of time the tortious action continues.

Also, if one of the infringements of the same image occurred within the 6 years, does that restart the clock for all the infringements?

No, each publication is a new event which potentially leads to a cause of action. If more than six years have elapsed since the publication event without you having commenced a claim through the courts, you have lost the opportunity to do so.

[darthvader]

Yes. But just to be clear, 'infringement' occurs for the entire time that the image is being displayed on the newspaper's website, but consists of a single instance if it was published in print. However the Limitation Act speaks about the limitation period commencing at the point that the cause of action accrues. 'Accrues' in this context means 'comes into being', and it is not related to the length of time the tortious action continues.

Thanks so much for explaining all this. Sorry if I am being a bit dumb here, but just want to be clear…

My image was used in online articles, not in print. The images remained active for over 6 years in many of the cases and were only removed after I complained to the newspaper.

Am I correct in thinking that regardless of whether these images remained viewable and accessible for the entire period, because more than 6 years has passed since the publication date then these would be time barred?


Sorry if I’m asking silly questions

Thanks again Andy

Ken

[AndyJ]

Hi Ken,

Yes the duration of the infringement is not relevant when it comes to calculating the limitation period. I know this seems strange, but it is based on what are known as the principles of Equity. Equity is the application of justness or fairness in civil disputes either where the statute law doesn't apply or where it is/was too broadly framed to provide fairness in some specific individual cases. In Equity the idea of fairness applies to both parties in a dispute.

Originally a person could appeal to the monarch for fair treatment, and such pleas were channelled through the Court of Equity. The principles of Equity are the distilled wisdom of the Court of Equity, and they are enshrined in a number of maxims or sayings. The relevant one in this case is "Delay defeats Equity, or Equity aids the vigilant not the indolent". This is sometimes restated as 'Equity aids the vigilant, not those who sleep on their rights'. It is closely related to the principle of estoppel, which broadly speaking, means that a plaintiff (or complainant) is barred from enforcing a right where it would be unfair to the person against whom the claim is brought. The same limitation principle appears in other legal systems found throughout Western Europe (and Scotland) which are based on Roman law rather than Equity.

To bring a degree of certainty into the law, the various statutes of limitaion were introduced so that everyone could better understand how their rights might be curtailled in specific circumstances, for instance, in disputes over land or where personal injury or medical negligence was involved.