Copyright Theft How I got £500 for the Illegal Use of my picture.
Copyright Theft How I got £500 for the Illegal Use of my picture. A Guide for Photographers and a Warning for Businesses
It is amazing that there are many people and even businesses which should know better who think that because a picture appears on Google Images it is free to use without paying the photographer. These people are also ignorant of the substantial damages which can be payable for doing this. In this case I came to an agreed settlement after a few emails without taking it to court of £500. A London based business had used my picture copied from the Internet as one of a number of images rotating to form a banner on their website. I am not going to name them or give away any information which could lead to their name. Incidentally the picture taken was listed on my website as in my top 10. On Flickr it has had 23,000 views, 350 favs and 120 comments so it was a particularly annoying one to have stolen.
What many Photographers and people taking images may not be aware of are the increasing availability of tools which can detect the misuse of picture easily and simply. In the middle of last year I signed up an organisation at https://pixsy.com/. You give them a link to say your Flickr account and they automatically search for any matches to your picture found online and do it for free. You can get them to pursue a claim for you and they charge 50% of the damages recovered. They are fairly new and have a limited capacity so you sign up and ask for an invitation. They found the misuse of the picture by the London firm but I did not use them to recover damages as I knew what to do in UK law. They have a limited number of countries they will make claims in and do not expect anybody to help with Websites in Russia, China and the far east.
The other free and easy way to find your stolen images is by a Google Reverse Image search. Just go to https://images.google.com/?gws_rd=ssl and click the camera icon to upload your image. The result will show all cases where your image has been used on the Internet. Another resource is https://www.tineye.com/ which does Reverse Image Searches though I found Google brought in more results though true with only one check.
There has been a recent important change in the UK which makes it much easier for Photographers to bring straightforward and relatively small claims for Copyright Infringement without risking large legal fees All Copyright Claims are brought in the Intellectual Property and Enterprise Court (IPEC) in London. The important change is that they have introduced a Small Claims Track for simple claims under 10,000. No legal costs can be claimed and it is a simplified procedure. The Defendant can object but it is then up to the Court to decide which procedure is involved. For small claims if both parties agree the case can be decided just on the documents without a hearing.
It is much better to settle a claim for less than the full amount than take it to Court. For this you need to know what you are talking about and be able to prove it by giving links to relevant law. I had an advantage in my case in that I used to be a Solicitor (Attorney for American readers) before retiring early and getting into Photography The following is not in any way legal advice and I am way out of date and never knew anything about copyright law. I am passing on information I found on the Internet about the relevant UK law which may or may not be accurate.
It is vital that when you first find a misuse of your picture that you take screenshots of the Website with your computers clock showing the date included and also print it out, again because this shows the date. This is because as soon as you make a claim the picture will be taken off the website removing your evidence. You can also go to https://archive.org/web/ which is called the Wayback Machine. They take snapshots of Websites over the years which will show the use of your image. This is important because how long it has been used affects the amount of damages. Not all websites are on the Wayback Machine. If you used pixsy.com their results will show the first detected use of the image.
Go to https://www.whois.com/whois/ enter the web address and usually get full details of whose name and organisation the website is registered in. These details can sometimes be hidden in which case it will say. This search can produce details when there is nothing on the Website.
If the business is a company do a search at https://beta.companieshouse.gov.uk/ This will give you full details including Accounts which will indicate if they are worth pursuing. For a limited number of companies those with a sole Director and the same sole shareholder there have been recent cases ruling that for copyright only the Director can be liable jointly with the company, see http://www.bailii.org/ew/cases/EWHC/IPEC/2014/3762.html
The essential next step is to work out what the correct amount of damages is. First it is not the lowest Stock Photo Website price provided you have not sold your images on that sort of site. The courts will look first at the price the Photographer has put on that particular image for that particular use eg in my case Website use as a banner. If the picture has not been sold for that use the courts can look at general guidelines. In my case I do not sell images for Web Use only for printed use. General guidelines include the NUJ suggested prices for various uses of photographs. Another one is the Getty Images search for Rights Managed Photos. In my case the Business used my photo on their website for 9 months. For the NUJ Rates see http://www.londonfreelance.org/feesguide/index.php?§ion=Photography&subsect=Online+use+of+photos
For 9 months at full page width the NUJ rates for the 9 months use come out at between £675 and £850. You can check Getty images at http://www.gettyimages.co.uk if you sold stock photos which is the Royalty Free system you would get between £150 and £275 or rather Getty would get that and you would get 15% of it. I have never sold stock so could say to the court that damages should be assessed on the Rights Managed system which depends on the exact use. On a similar image using the Getty Custom calculator for the custom usage it came out at £995. The business which took the image might say that they would never have used the image at that kind of price. However so far as the Courts are concerned that does not matter, by taking the image they deprived the photographer of the right to negotiate so it comes down to market rate
In addition to market rate the courts will also award additional damages for what is known as flagrancy. This comes down to them taking the picture when they knew or ought to have known that it was in breach of copyright. Some flagrance will usually be assumed in the case of a business. Additional damages can be awarded of 2 or 3 times the market rate. For a business it highlights how much there is to lose by getting it wrong. The quality and originality and rarity of the picture is also relevant. In one UK case the misuse of a picture of a celebrity which was copied from social media assuming it was free resulted in an award of £5000.
I offered to settle my case for the reduced amount of £500 in my first email. The response was to take down the image, say sorry and that they didn’t have to pay anything. The main response was that they did a Google image search for for a commercial use free to use image, came up with mine and used it. The problem was that somebody, probably in China did the initial theft with a screen capture and cropped out or photoshopped my watermark. Then others took the image from them. The problem for the business in London was that Google guarantee nothing and indeed mention there may be errors if the source of the image is not legitimate See their terms at https://support.google.com/websearch/answer/29508?hl=en
It is up to the end user of the image to check that they have proper consent from the copyright holder. In my case the website where the image was obtained had retained the original title. This shows up in the Source code of the Website. To help to keep track I always use totally original titles. I think of a good title and do a search on it in Google with inverted commas for that exact wording. If it comes up as no results I use the Title. If the business had done a search on that title they would have found numerous references to my Website and Flickr account with the original watermarked image. A reverse image search would have found the same. Those are the basic kinds of checks any business should do for any image found on the Internet. If they make no checks they will be liable even if they are not the original thief. It is of course much better to find a Photographer or check a Stock Photo Agency.
For some official guidance on using Photos found on the Internet see https://www.gov.uk/government/publications/copyright-notice-digital-images-photographs-and-the-internet
A useful web page for photographers giving more guidance and draft letters to write and taking a claim to small claims court can be found at http://www.epuk.org/the-curve/the-infringement-pathway-a-step-by-step-guide-for-issuing-a-copyright-claim
For my claim my first email was at the end of February. After 2 more emails explaining the Law with quotes and links to various websites they agreed to settle and paid today 13th March. Not every case will be that quick but I would suggest it is worth a go.
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