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