Copyright small claims / IPEC

db2016

hi,


i bought images on film (taken from 70s to 2000s) from a motoring journo retiring, he was in the business of licencing images he took etc for use in books etc to some considerable success.


we agreed a price etc and then he "assigned" in law the copyrights over to me and gave up his claims to them at that point in the agreement. all written down.


i then have some success doing what he did and slowly scanning them to digital etc for use.



he contacts me in august as we have a good relationship off the back of this shared interest and says "i recognise this image as one i took, hope you got a good fee for it" - a photo showing "whats coming up for sale" in a car auction house (a large multimillion pound rare car one at that).



i then say no and investigate, he then sends me another email attaching another email where they say "now on our website" so thats 2 email circulars so far.



then on their site the photo appears once in a gallery list and then on the specifics of that car for auction soon. and also from a phone call i had (i didnt tell them i owned it at this point they were falling over themselves to offer to send a printed catalog to me so that another usage.



i email, lay out the law on copyright, in this case the Copyright, designs and patents act 1988 and then seek £500 for the usages of 2 emails to potential bidders / subscribers, then the website it self a couple of times.

i ask a few things, to pay me. to remove all digital images from site and stop sending the printed catalogs out and finally simply to let me know within 14 days when they do the above.



they remove the image on the site but dont tell me, its left to me as i check and gather evidence to see this.

i email again asking for payment with invoice attached. no reply


then on the day of the auction they have a live stream online which i recorded and low and behold they show the pic again with a counter going up as the price does in euros, pounds dollars etc as the auctioneer is talking about that car for sale.



so then i email back and ask for payment of £750 given they have then used in a broadcast sense which is worth more, and then on social media.



they ignored emails. i phone on average once a week asking for some one to call me email etc. they dont



they finally gave me and email and i send over what the guy asks for (proof of the assigned copyright which happened in 2013 btw, predates there 2018 use by a long shot). clear cut i thought.



this guy ignores, i keep phoning every friday and get promised i will get a phone call (i must have handed my number over 30 times to different people). then a woman gets in touch and takes it over and i have to send her the same info which i do. they are now passing it to their legal outsourcing team.



few questions.



is small claims easy? because this is intellectual property im led to believe theres a special track called IPEC, in a building in london, i am disabled and would be hard but not impossible to go.

from my research you apply small claims then when its noticed its itellectual property they send to IPEC i think.


also they have told me (the company) that they got the image from the vendor, so its not their fault, how correct is this? i am assured by the original photographer that i have the only negatives of it and he simply gave a print to the owner at the time (1980s) as thank you for letting him shoot his rare car, and he attached a sticker with all rights reserved copyright notice and his address etc.

so the company or the owner either have scanned the image to digital then its been used on their site.



imo am i right in thinking they auctioneers should have performed due diligence to find out if the photo was cleared for use and not simply just take it from the owner to use. they seem to think they have a clause in contract with the owners family (the original owner died so thats probably why they selling up his car) that gets them outta it. the copyright law seems to say otherwise, bascially they put it out there online so its them at fault. and to make it worse for them its in the course of a business and they assert their own copyrught notices so they cant plead ignorance can they?



the car went for £80k nearly and the auctioneer charge £350 cataloging fee plus 10% of hammer price, so they have made a lot outta this car, and one image of the 4 was mine (they used old images which i dont get, as surely if i was selling a car tomorrow i'd take photos yesterday, aka up to date images not 30 years old nearly!)



any help welcome, im kinda ok with copyright law as i had to learn it when i got into this sale of the images and i thought it'd be clear cut but they are really dragging heels.


will i be able to claim costs of going to a court (london) and also if im asking £750, can the judge award more? i am being very fair, calculators such as from the agency i use for other images i have, and split 50,50 with they want around £1700 for the usages they have had, and getty images are approx £4k but getty is known for being expensive unless they have a big client and offer discounts.

DoaM

Did you watermark the digital scans of the photos?

Where have they copied these images from? Have you checked the EXIF data on their copies of the images?

unholyangel

I'm not going to go into all the ins and outs of it but there are two types of copyright infringement - primary and secondary. To give an example, if you were to copy a dvd, you would commit a primary infringement. If you owned a shop who bought those dvds (the copied ones) and sold them, you would commit a secondary infringement.

Primary infringement has strict liability - meaning theres no requirement for the person to know they were infringing on copyright. Secondary infringement requires knowledge - or at least that you're in possession of enough knowledge that a reasonable person would have known.

Even if their infringement was classed as secondary (personally I don't think it was as they copied and reproduced the work themselves and published it), they made a huge mistake continuing to use the work after receiving notice of your claim as copyright holder. They don't get to plead ignorance now. If the vendor signed a waiver then they should be able to recoup those costs from the vendor but thats a contractual matter between them and the vendor. In fact, their later usage seems pretty clear cut - they were aware of a claim of someone claiming to be the copyright holder and also that the owner attached a price of £250 per use (iirc you were claiming £500 for 2 infringements).

If you have already sent a letter before action then I would informally highlight the above to them and suggest they obtain legal advice without further delay. If you haven't sent a LBA then send one and give them a reasonable deadline of say a month in which to obtain legal advice and resolve the issue to a satisfactory conclusion.

unholyangel

DoaM wrote: »

Did you watermark the digital scans of the photos?

Where have they copied these images from? Have you checked the EXIF data on their copies of the images?

The impression I got from OP's post was that the digital files are unauthorised copies - that it didn't exist in digital format prior to his and that the source is the print that was gifted (with copyright reserved) to the car owner in the 1980's.

But either way, theres no legal requirement to watermark copyright works. It may help deter people from infringing but its not a required element of infringement.

db2016

yes thats correct, the photo existed in a print only, and a very low res scan which the journo used to make a pdf file catalog of his images to show potential clients (with his watermark on and cropped anyway, and he is very sure he never licenced this image in his 30 years of owning it). the image the car owner had in an 10x8 print was the one used, scanned by the auction house or the owner (who then gave it to the auction house). and yes usually i have clear copyright notices on any print i make or indeed any online use (either myself or via the agency which i show my work and split profits with). the image in question i havent even got on my own site or the agencies site yet, so im very very sure it came from this print into digital form.

unholyangel wrote: »

The impression I got from OP's post was that the digital files are unauthorised copies - that it didn't exist in digital format prior to his and that the source is the print that was gifted (with copyright reserved) to the car owner in the 1980's.

But either way, theres no legal requirement to watermark copyright works. It may help deter people from infringing but its not a required element of infringement.

unholyangel

db2016 wrote: »

yes thats correct, the photo existed in a print only, and a very low res scan which the journo used to make a pdf file catalog of his images to show potential clients (with his watermark on and cropped anyway, and he is very sure he never licenced this image in his 30 years of owning it). the image the car owner had in an 10x8 print was the one used, scanned by the auction house or the owner (who then gave it to the auction house). and yes usually i have clear copyright notices on any print i make or indeed any online use (either myself or via the agency which i show my work and split profits with). the image in question i havent even got on my own site or the agencies site yet, so im very very sure it came from this print into digital form.

You could also try the IPO, they offer a mediation service but theres a charge for it.

Details here if you're interested.

db2016

yea i first asked £500 for the following usages,



1 and 2. email circulars "coming soon" etc, then a "now live to view on our site", both of which they had hundreds of cars for sale, but my image was used as a "star of the show" if you like. so two usages there.


2. the site catalogue they had, it was used 3 times on their site, gallery list thumbnail, then main listing slideshow and again near a "contact us about this car" email fill in box.


3. printed catalogue available on request via post and available for pick up by anyone walking into their office.


then they used it on social media, and targeting that tweet / insta / fb to the make of car owners clubs etc in question.



then to the room full of bidders, which was live streamed online, so thats 2 usages, broadcasting online is a expensive licence IF theyd have approached me!



then they also copied their adverts and had them written on auto-trader for classic cars type sites, x2-3



so yea a fair amount of usages, all which i have screenshots and time and date evidence its still on their socials now for eg. which is where i upp'ed my invoice to £750.



would a judge take that as given or would he look into it and see that ive been very fair and the agency rates eg could be from £1700-4k and award more than ive asked for in my £750?


can i claim interest and travel costs such as hotel and food if i have to go to london for the specialist copyright court? obviously i'd keep any reciepts and be reasonable on costs.

unholyangel wrote: »

I'm not going to go into all the ins and outs of it but there are two types of copyright infringement - primary and secondary. To give an example, if you were to copy a dvd, you would commit a primary infringement. If you owned a shop who bought those dvds (the copied ones) and sold them, you would commit a secondary infringement.

Primary infringement has strict liability - meaning theres no requirement for the person to know they were infringing on copyright. Secondary infringement requires knowledge - or at least that you're in possession of enough knowledge that a reasonable person would have known.

Even if their infringement was classed as secondary (personally I don't think it was as they copied and reproduced the work themselves and published it), they made a huge mistake continuing to use the work after receiving notice of your claim as copyright holder. They don't get to plead ignorance now. If the vendor signed a waiver then they should be able to recoup those costs from the vendor but thats a contractual matter between them and the vendor. In fact, their later usage seems pretty clear cut - they were aware of a claim of someone claiming to be the copyright holder and also that the owner attached a price of £250 per use (iirc you were claiming £500 for 2 infringements).

If you have already sent a letter before action then I would informally highlight the above to them and suggest they obtain legal advice without further delay. If you haven't sent a LBA then send one and give them a reasonable deadline of say a month in which to obtain legal advice and resolve the issue to a satisfactory conclusion.