|Image Copyright Infringement Under CDPA 1988 |
I ran an online forum (phpBB) back in 2006 which was a celebrity image forum. I recently received a letter from a photographer stating that a post made in 2007 contains images of a particular model which are copyrighted to the photographer. They state that use of the image without a valid licence is an infringement of their rights under the Copyright, Design and Patents Act of 1988. They have requested that I provide documentation within 14 days that I have a valid licence for the images and if no valid licence is available that I cease and desist from using the images and settle the retrospective invoice which is for over $16,000. I have removed the post from the forum on the day of receiving the letter.
I did not make the post on the forum and it was made by a registered user on the forum. The forum is free to sign up to and the users contribute to the forum. The images were not hosted on my server and were hosted on Imagevenue by the user which is a 3rd party image hosting site. No images are hosted on my server. I have no control over what a user posts and can only moderate/delete posts which I have done upon receiving this letter.
I was wondering what the best course of action would be in response to the letter. I have been reading up about Getty images and the extortion letters but the difference is I did not make the post nor were the images hosted on my server. Should I respond with the details of the forum user and their IP address as well as the Imagevenue details for removing the pictures from their hosting services? Any help on this matter would be much appreciated.
Hi rm101 and welcome to the Forums. It seems to me that the photographer (or more likely their agent) didn't actually check to see that they were contacting the correct party regarding the image, but you've done as requested. In image appearing on a site doesn't mean it is on that site, or in the control of the domain where it appears.
As for supplying user details I would wait for some kind of further request for more information regarding the source and otherwise just respond that the image was not ever under your control, and that you have removed the site content that you do control that referenced the image. You can't be expected to share your user's information without some legal requirement. I would ignore the invoice as you did not use the image and can only be responsible for your own activity and for responding to removal requests that appear valid. This isn't in any way legal advice, it is just the path I would consider until further action became needed (if ever).
It is a good idea to have a policy statement on your site that covers your policies on User Generated Content that you could point them to. As for information specifically regarding CDPA 1988, I have no information and it could be very contradictory to what my opinion is. I invite other users to fill in any information they might offer. To me it seems you've complied with the portions of their request that were under your control and beyond that, they can't hold you responsible.
Ignore it. It's called speculative invoicing.
There are protections that I think cover you if you take down the content once aware of the infringement.
Even people accused of P2P file sharing infringements (in a weaker position than you) as a basis for speculative invoicing are rarely taken to court: if I were you I would treat it as an attempt to bluff you our of your money and simply write a short reply to the effect that you never hosted the content and have removed the link to it:
Many thanks for the replies.
Based on the responses, I feel it would be best to keep my response brief and simply state that the post within which the alleged infringing material has been removed as soon as this was brought to my attention. Furthermore, the allegedly infringing materials were never actually stored or transmitted to or from my server.
Is there anything else I should include within my initial response letter? Should I also include the details for them to contact Imagevenue directly to have the images removed?
I shall refrain from providing any user information. I am based in the UK so do not know if this affects anything in terms of the law either.
I am based in the UK too rm101. I had the same thing with Corbis about 7 or 8 years ago. I didn't pay and I got one more letter. I have heard nothing since.
I think you should say as little as possible. What you propose to say should be enough to make the grounds on which you are rejecting their claim clear.
|Should I also include the details for them to contact Imagevenue directly to have the images removed? |
If they were nice people (e.g. they asked for take down or licensing at their usual rates) I may have been inclined to be helpful, but as they are clearly speculative invoicing scum I would be as obstructive as possible.
I was very heavily involved with this a few years ago. I was commenting on it on several forums and at that time only one anomalous case was ever prosecuted in the UK. That was a single case from the many thousands of threatening letters that were issued. It did not seem to matter whether those who had received the letters entered into a dialogue with them or just ignored them. Nothing ever happened so I would not worry about it.
Just like everyone else is saying, ignore the letter. You took down the infringed copy which shows due diligence. I wouldn't think that you have anything to worry about.
I am writing as a follow-up to my previous post. I responded stating that as a courtesy the post was removed as soon as this was brought to my attention and that the post was made by a third party which I was not involved with. Furthermore, the alleged infringing materials were never actually stored or transmitted to or from my server and based upon this that I trust the matter to be closed.
I received a 4-page response which contained the following:
The letter started by stating that in June 2014 they came across my website and found 10 images of a particular model to which the copyright belongs to their Partnership. They state that use of an image without a valid licence is an infringement of their rights under the Copyright, Design and Patents Act 1988 and a copy of this can be seen online at [legislation.gov.uk...]
The letter then claims that the professional freelancer photographer work in partnership with <name> and the purpose of the partnership is to licence works that belong to the photographer. The partnership agreement copy was also enclosed (6 pages). They write that they can find no record of me having obtained a licence to use the images and as such is an infringement of copyright. They state that I must stop using the images with immediate effect and compensate them by way of damages in the sum of £9,xxx and provided the invoice which was previously sent.
They have taken a screenshot of the page from my forum and write that this is their letter before claim and is laid out as they understand the rules of the Practice Direction – Pre Action Conduct which can be found at [justice.gov.uk...] and direct atention to Paragraph 4 which describes the penalties a court can impose if either party does not follow the Practice Direction and ignoring this letter before claim could increase my liability to costs.
They require acknowledgment within 14 days of receipt of the letter before claim and not doing so reserves them the right to take any action available to them in law and they require a full response within 28 days or a full explanation why it is not possible.
The letter then continues to write that the images have been published in various magazines and are available for inspection with credit to the photographer. The photographer has carried out “simple searches” on Google (text and image) which would offer clues as to whether or not the images in question are subject to copyright. The letter writes that the results indentiy the photographers and from that the photographers website which contains the model. They continue with the images being published in particular magazines and that phoning the publishers would reveal the photographers and searching the model name within Google image search would lead to the photographers.
The letter then explains how the sum of damages was calculated using the software “fotoquote” and that this is considered an acceptable means of pricing photographic images and was considered an acceptable means of pricing photographic images in the case of Sheldon v Daybrook which can be read at [bailii.org...]
They write Sheldon v Daybrook allows the court to take into account interesting aspect of infringed image that can be included in the pricing calculation and that they have confirmed the accuracy of the final value of the quote generated by fotoquote by comparing it with a quote from Getty images and NUJ freelancers rate (they included a pricing matrix for Getty and NUJ in comparison to fotoquote)
They write another important point about the final value is that it has taken into account the recent decision of Hoffman v Dare whereby the court would expect a discount to be applied if the use of the infringed images was substantial which can be read at [bailii.org...]
They also intend to rely on the judgement in which the photographer (claimant) were awarded £9xxx plus costs and interest against a website which used 14 of their images without licence. (they enclosed a copy of this which is from the High Court of Justice Chancery Division Intellectual Property Enterprise Court – This judgment writes that upon hearing the claimants in person and the defendant not attending, nor being represented...there be judgment for the claimants in the sum of £10xxx)
They then write that in my response to their letter I confirmed that the images did indeed appear on my website and that I removed them. However, since I state that as I did not upload the infringing images myself nor did they have a physical presence on my server that I am not liable. They then write that they intend to rely on Case C-324/09 [curia.europa.eu...]
They believe that working under the above conditions brings forth a fair reflection of what a willing photographer could expect to receive off a willing buyer.
If I accept the claim I should do the following:
Remove the images, never use the images again unless I hold a valid licence, settle the invoice in the sum of £9xxx.
If I do not accept the claim in full then I must write explaining why and furnish them with any documents I intend to rely on. If we cannot reach an amicable settlement, then they propose that both parties should invite the Intellectual Property Office to supply mediation.
The majority of the letter covers the photographer owning the copyrights for the images and the use of the images without a valid licence is an infringement of their rights. (Similar to what was written in the first letter). They state that this is their letter before claim. When I visit the URL for Case C-324/09 which they have provided a link for which is what they rely on I get “The document is not available in that language. “ and also when searching the Case C-324/09 on the site I get C-324/09 - L'Oréal and Others - L’Oréal SA and Others v eBay International AG and Others.
I would appreciate any advice on the next best course of action to take in responding to this. Should I provide more information like including the screenshot of the post with the username of the user included so they can see the post was indeed made by a third party as well as annotating the images being hosted on Imagevenue as well as providing them with contact information to contact Imagevenue regarding the removal of the images. I clearly will not accept the claim due to the invoice sum. Also they mention that if an amicable settlement cannot be reached that both parties invite the IPO to supply mediation. Would it be advisable to contact an IP lawyer now (obviously I would prefer not to due to the costs involved with a response letter but this may be beneficial in the long run?) or should I write up another response first?
Your help on this matter would be very much appreciated. Thanks
This is the normal process that they use. Keep your nerve and ignore it. Speculative invoicing.
I think this link will be OK under the circumstances.
Thank you BeeDeeDubbleU, given that the only help available here is the experiences of others, that site documents similar experiences that the authors had in a similar situation.
In the US there is a legal function called "Safe Harbor" which MAY or MAY NOT apply under UK, where the host of UGC is held harmless and reacts positively in removing any copyrighted material as soon as notified. I do not KNOW if such application under law is available i n the UK, but you might want to research that option as well.
That said, if his SHOULD go to mediation or before a judge, DO APPEAR! Failure to appear will allow plaintiff to prevail. As for that screen shot, it does not show the LINK to the image NOT BEING ON YOUR WEBSITE which they will have to prove. You can, of course, still prove that the image was never hosted on your system and that you did not create the link to said image, correct?
Meanwhile, most of these claims are sent out by robowriters with the full hope that the first letter scares a payment, or a beg to negotiate payment. Trolling for cash.
Without knowing how serious they are, or how determined you might be, it is also possible to claim that the photographer himself, having made the images available on the Internet, may have contributed to the infringement in the first place. "Once on the web, it's everywhere on the web."
IANAL, nor is this legal advice. Just note that ANYTHING you say in reply to these folks will be ammunition against YOU. If push comes to shove, they will have to PROVE that the screen shot (which can be easily faked in any photoshop type application) is the real thing, though that might be a bit of stretch since you have acknowledged there was a post of some kind and that you removed it. And that, truly, is as far as it should go. It is up to the copyright holder to protect their copyright and that innocent third parties are not required to do so.
Here is something to try, use Google and try to find a single prosecution in the UK courts for this (other than the isolated case I mentioned earlier). If you do find another one then you are better at searching than me! :O)
EU law does contain something like a safe harbour.
Personally, I would have just ignored this in the first place. It is a scam.
You may feel more comfortable getting a lawyer. Personally I would just keep replying and rejecting their claim with minimal responses responses to stay within practice directions - it really depends on your confidence in your ability to follow them. On the other hand a lawyer may scare them off.
Also, the fact that they quote the number of an obviously irrelevant case (it is about trademarks, not copyright, and concerns the use of trademarks on eBay) is a pretty good indication that they are bluffing.
This must be a pattern going around. New to this area of WebmasterWorld too. I was interested if anyone had any comments about our similar situation.
We got a letter (registered - signed for by our mailbox location - so couldn't reject) from an actual law firm, whom I checked out online, from the other side of the USA, saying that a photo which we posted just over a year ago was copyrighted by the photographer. It came complete with USPTO filings (which I confirmed online,) screen captures from our site, and the usual cease and desist and a series of questions about where we got it and how much we made from it, etc. It was located in one of our website's blogger article columns entirely hosted on our domain server. The blogger does an article once a week about current events, concerts, etc. and includes about a dozen photos. We have no employment agreement with the writer, they do it because they want to - whether or not they get paid anything by the promoters or info sources, I doubt, but I have no way of knowing for sure. It has also, from time to time been syndicated nationally by various print media. The photo mentioned was of one of the bands appearing and was supplied to the blogger via a promo e-mail from the PR firm for the location which was hosting the band. Presumably they got it either from the location or from the band's agent. The blogger is well known in the niche for many, many years and gets submissions of this type (including from the same major PR firm) constantly. This is the first real incident like this. A couple prior incidents (like one where a library sent us a photo which included a part of an artist's work they displayed) were quickly resolved simply by removing the photo. Usually WE are the ones sending less than pleasant C&D notices to others. The blogger is old-school and provides all of the editorial content as straight text and the photos as separate files and all we do is format it in html for them and resize the photos appropriately, often adding titles or headlines to the photos at the blogger's request. Each weekly column specifically states at the bottom that the content is copyrighted by the blogger and only the online presentation format and style is copyrighted by us. We have never had reason to question the source of content or photos, nor the time to do so. All of the subjects have been happy for the exposure in the past.
So I immediately removed the photos (a thumbnail which linked to a larger-sized image (still smaller than the original)) and responded to the atty where we got the photo as explained above with all contact info we had, and the statement that we were led to believe they were approved for promo use as usual by the PR firm and pointed out that they obviously had much larger companies to go after than us and even pointed them to other places on the net where similar versions of the photos obtained from the same PR firm were located. Also told them that we made $0 off of the use (we weren't selling copies or anything, and PPC ads in that section produce next to nothing - If you broke it down that week's entire column's share might indirectly have been about $.01/day if that. Likely the same with or without that photo. I'd gladly send them a check for the whole $4!)
Anyway, they finally wrote back yesterday 3-4 months later saying our use was "more than incidental and without license." They claim that the law says they can recover damages even when the infringer is mislead that the usage has been authorized, (referencing 17 USC 504) and offering a retroactive license for limited use for a low 4 figure fee to avoid further action.
If they sue, presumably it will be 2000 miles away (or do they have to file in my state?) and all-told cost more for the travel and lodging than they are asking, assuming it isn't continued by the court. I've tried contacting a few copyright attys licensed in that area and none have even bothered getting back to me.
Any comments on what they are claiming or any suggested course of action? Since we only provide the hosting and template, and not the actual content would we be covered by Safe Harbor laws? Thanks all!
Copyright? I think it is about trademarks.
MikeNoLastName, we can't give LEGAL advice. For this one I'd ask a local attorney familiar with IP (intellectual properties) law and the internet as a whole. They are out there. Might not be in your hometown but probably can be found in the nearest major urban area.
It looks like multiples (not just you, but the PR company and others) will be dragged into it. And that might be the best way to go. Muddy the waters, so to speak.
Ultimately no profit was made/or intended from the image(s) use. However, can you be held harmless? None can say outside a court of law.
Get an attorney.
Personally, I believe this is the same shakedown many webmasters face from time to time. If they (the plaintiffs) really push and file in court that's when you'll need a lawyer. So looking for one now is just being preemptive, might cost a few bucks (well, more than a few, but reasonable), and might get a reply letter from your attorney written on a LAWYER'S letterhead. Oft times a willingness to fight changes the landscape, particularly if you can seek a change of venue to your locale. Some States in the US require civil actions against their citizens be filed and adjudicated in THEIR courts. Something to look at. Also look at the dollar amounts... this might be something for Small Claims Court.