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Image Copyright Infringement Under CDPA 1988
rm101




msg:4682152
 12:07 am on Jun 24, 2014 (gmt 0)

Hi,

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.

Kind Regards

 

not2easy




msg:4682183
 2:23 am on Jun 24, 2014 (gmt 0)

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.

BeeDeeDubbleU




msg:4682285
 7:47 am on Jun 24, 2014 (gmt 0)

Ignore it. It's called speculative invoicing.

graeme_p




msg:4682348
 12:25 pm on Jun 24, 2014 (gmt 0)

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:

[torrentfreak.com ]

rm101




msg:4682378
 2:00 pm on Jun 24, 2014 (gmt 0)

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.

Thanks again.

BeeDeeDubbleU




msg:4682384
 2:22 pm on Jun 24, 2014 (gmt 0)

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.

graeme_p




msg:4682642
 7:46 am on Jun 25, 2014 (gmt 0)

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.

BeeDeeDubbleU




msg:4682649
 8:51 am on Jun 25, 2014 (gmt 0)

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.

dtumacde




msg:4685609
 10:46 am on Jul 7, 2014 (gmt 0)

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.

rm101




msg:4686663
 4:18 pm on Jul 10, 2014 (gmt 0)

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

BeeDeeDubbleU




msg:4686667
 4:44 pm on Jul 10, 2014 (gmt 0)

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.
[extortionletterinfo.com...]

not2easy




msg:4686700
 7:02 pm on Jul 10, 2014 (gmt 0)

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.

tangor




msg:4686790
 12:23 am on Jul 11, 2014 (gmt 0)

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.

BeeDeeDubbleU




msg:4686854
 7:32 am on Jul 11, 2014 (gmt 0)

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)

graeme_p




msg:4686877
 8:47 am on Jul 11, 2014 (gmt 0)

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.

graeme_p




msg:4686883
 8:53 am on Jul 11, 2014 (gmt 0)

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.

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