Can we just 'bottom line' this ?

[SherylM]

I've done a lot of reading about all this and just want to get some hard facts on a couple things.

First of all I will say, I know it's inherently complicated because the details of every situation may be different. But in UK copyright law we have section 97 which deals with 'damages' when a copyrighted work is accidentally or innocently used, is removed when notified, and the use is not 'flagrant' etc. (I am paraphrasing).

This seems reasonable and in keeping with the spirit of the law. Sooooooo, my question is this: If the use of an image was unknown/accidental and is sufficiently trivial, was removed upon notification etc. Is there some over-riding element elsewhere in the law that makes section 97 an invalid defense ?

I also have a question about what is likely to be actually awarded by a court if Getty were to win. They may be asking for one amount in their letter, it could be that a different amount would actually be calculated had someone bought a license. And then there is the very real element of 'fair market value', so if a very similar image is offered for 1/10th of the price - then are they not going to have a hard time proving their fee is justified?  If I turn this around for a sec, lets say I put up some stock photos and 'ask' £10,000 for the license fee. No one is going to pay it, but if I circulate these images enough someone may just use one not realising it is copyrighted, now surely I cannot just file my court papers and sit back and wait for 10K to be awarded to me.

---this brings up another point about how the court will see 'fair market value' and the idea of damages or loss, many of these Getty images are now free to embed. Surely that diminishes their justification of the fees they are demanding?

I understand and fully support the function of copyright law to protect creators and deter infringement but surely there is a line to be drawn somewhere.

So can we 'bottom line' this whole thing to some degree here?  Basically with: 1. is section 97 applicable or not? 2. What actual amounts will the courts award if Getty wins?

Lastly, if the amount being 'demanded' is under the threshold would this be a small claims action?  Whatever court hears it they must know UK copyright law in great detail.

 

[DavidVGoliath]

You need to look at the text of Sect. 97 in its entirety

"Provisions as to damages in infringement action.

(1)Where in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.

(2)The court may in an action for infringement of copyright having regard to all the circumstances, and in particular to—

(a)the flagrancy of the infringement, and

(b)any benefit accruing to the defendant by reason of the infringement,

award such additional damages as the justice of the case may require."

As infringement actions are largely civil claims, the onus is on the defendant to prove that they had good cause to believe that the image used was not protected by copyright. Also, even the vacating of damages in a case still gives the plaintiff leave to seek other recourse ("but without prejudice to any other remedy")

As to the amount of damages that might be awarded, all that the plaintiff needs to show is that their license was reasonable and in line with common industry averages, and there is case law to reinforce this

http://www.bailii.org/ew/cases/EWPCC/2013/26.html

Look at sections 13 and 22 in particular

So it boils down to this; if anyone were sued through the courts in the UK for a copyright matter, case precedent has clearly established that a correct measure of damages is a reasonable license fee, plus such mark-ups as may be fair and just.

In addition to damages, a defendant may also be awarded costs. In the Sheldon vs. Daybrook case, although the judge awarded damages of £5,682.37 excluding VAT and interest, I believe the entire matter was settled for a low five-figure sum, as the parties reached an agreement on costs out-of-court.

For what it's worth, Certain court tracks bar either party from applying for costs as they permit self-representation (the Small Claims Track of the Patents County Court is an example) but still, the cost to defend a claim - in terms of time and expense - can be considerable... thus if you have infringed, it may be worth assessing whether settlement of the sum claimed is the least expensive of the two options.

[SherylM]

Thanks for your reply DavidVGoliath. I suppose what I need then is the legal definition of 'damages' as it applies here. You seem to want to put forth the notion that section 97 will be ignored but it would seem to me squarely aimed at the kind of activity we're talking about with trivial / 'innocent' use of a photo.

I thought, perhaps wrongly, that anything Getty is seeking is considered 'damages' when it actually goes to court. Whether that is simply a license fee or something else. I will see about having a copyright lawyer clarify these points for me for future reference.

I think in the area of 'fair market value' they would need to show that the fees they are requesting are actually being paid for that image by real customers. Your example is irrelevant because we are talking about a very different situation when talking about a stock photo with a very defined license fee pricing structure vs an exclusive photo that was not being offered for sale in such a way. An example in music would be the use of the Rolling Stones string melody by the Verve in 'Bittersweet Symphony'. It was not a case of something that was available to buy a license for.

As I have said, I understand the need for intellectual property protection under the law but there is also a divide between what is reasonable and what is not. As an analogy, imagine I own a company that leases powertools and I offer a drill at the rental price of £10.00 a day. Someone informs me that they think one of my drills is in your garden. They jump over the fence and recover the drill and sure enough it is mine and I can prove that with the original invoice. So I then send you a bill for £300.00 because I estimate it has been in your garden for 30 days.

Now, you're a bit surprised because you just assumed the pile of tools in your garden were owned by the builder you had doing some renovation.

So in this case do you think you should pay me the £300.00 I'm asking for?   That's about what we have with this Getty thing. Do you think it would be reasonable to get taken to court and for the court to find in my favour? Of course not, but that's kinda what is being suggested by some here.

 

[DavidVGoliath]

Thanks for your reply DavidVGoliath. I suppose what I need then is the legal definition of 'damages' as it applies here. You seem to want to put forth the notion that section 97 will be ignored but it would seem to me squarely aimed at the kind of activity we're talking about with trivial / 'innocent' use of a photo.

Section 97 only offers a defence if the defendant had reason to believe that there was no copyright vested in the work; for example, that more than 70 years had passed since the death of the author, or that the author had renounced copyright.

I thought, perhaps wrongly, that anything Getty is seeking is considered 'damages' when it actually goes to court. Whether that is simply a license fee or something else. I will see about having a copyright lawyer clarify these points for me for future reference.

The damages are largely assessed on what a willing plaintiff could have licensed the image for to a willing defendant. There are other factors that come into play in determining the total amount that a defendant could be found liable for, but the "lost" license will, in the majority of instances, make up the significant portion.

I think in the area of 'fair market value' they would need to show that the fees they are requesting are actually being paid for that image by real customers.

Partially; they only have to show that the license being requested is reasonable and broadly similar to other licenses in the marketplace - so, if we're talking about a "stock" image, then they might put forth evidence that similar photographs from other vendors (eg. Corbis, Shutterstock) are also licensed for fears that are within approximation of their own fees.

Your example is irrelevant because we are talking about a very different situation when talking about a stock photo with a very defined license fee pricing structure vs an exclusive photo that was not being offered for sale in such a way. An example in music would be the use of the Rolling Stones string melody by the Verve in 'Bittersweet Symphony'. It was not a case of something that was available to buy a license for.

The example is wholly relevant; case law shows that the consideration is weighted towards what the plaintiff would have been able to collect in terms of a reasonable license fee. Establishing what that license might have been is easier for photography than your example of music, because sync of sample licensing is elastic in terms of pricing as it is dependant on many variables - far more so than stock or rights managed photography - which is why there are specialist agents who only deal in sync and sample licensing for music.

As I have said, I understand the need for intellectual property protection under the law but there is also a divide between what is reasonable and what is not.

Again, the case precedent I put forth shows clearly in which way the law leans - so long as the defendant can prove the portion of their damages claim that relates to their license fee is reasonable, then it is fair to assume any judgement will fall in that direction.

You'll forgive me if I don't address your analogy as I can glean little from it. If you would care to share some more general details as to the claim you are facing, I might be able to offer some suggestions to you.

[SherylM]

Thanks for your reply DavidVGoliath. I suppose what I need then is the legal definition of 'damages' as it applies here. You seem to want to put forth the notion that section 97 will be ignored but it would seem to me squarely aimed at the kind of activity we're talking about with trivial / 'innocent' use of a photo.

Section 97 only offers a defence if the defendant had reason to believe that there was no copyright vested in the work; for example, that more than 70 years had passed since the death of the author, or that the author had renounced copyright.

There are lots of situations in which it could be legitimately believed that a photo was not subject to a copyright claim (part of a collection buy-out, creative commons, public domain, etc).

As I mentioned, I will speak with an IP lawyer to clarify these points for me. I maintain that I find it unreasonable in principle that a scenario of unintentional and trivial use (which is rectified imediately upon notification) would be treated in such a draconian manner. It falls outside of the spirit of the law and into the realm of abuse.

Having said that, I am about to make available a bunch of my own photos for licensing and I am thrilled at the prospect of so much easy money knowing I can extract such sums for even the most obscure and inconsequential use, regardless of any malice of intent or even awareness, personal gain or provable loss on my part. 'Seems like a wonderful business model. (actually, it would seem I don't even have to prove someone used a photo, only that picscout found it on their server, brilliant! )

In the Daybrook/ Sheldon case, do we know if they appealed? Did Daybrook just pay up? I maintain that it's a VERY different matter when the photo in question is so specific, ie a celebrity etc because in such a situation you probably won't have thousands of substantially the same thing available free, it's not like a generic pic of a cactus or something. Also, in that case it could be argued both that their use resulted in financial gain and / or was 'flagrant' thus section 97 not being applicable. Another big difference about that case is that they used the photo and that point is not in question. With many of the people on here that have received the Getty letter, it is simply picscout finding an image on their server, no proof they ever used it, or for how long, if anyone actually saw it etc.

[DavidVGoliath]

There are lots of situations in which it could be legitimately believed that a photo was not subject to a copyright claim (part of a collection buy-out, creative commons, public domain, etc).

... and the onus is on the defendant to prove their belief the photograph was not subject to copyright, and that such belief was reasonable - and for the Judge to agree with such evidence.

As I mentioned, I will speak with an IP lawyer to clarify these points for me. I maintain that I find it unreasonable in principle that a scenario of unintentional and trivial use (which is rectified imediately upon notification) would be treated in such a draconian manner. It falls outside of the spirit of the law and into the realm of abuse.

Consulting with a solicitor or lawyer who has specialist knowledge of copyrights is perhaps the single best step that you could take.

Having said that, I am about to make available a bunch of my own photos for licensing and I am thrilled at the prospect of so much easy money knowing I can extract such sums for even the most obscure and inconsequential use, regardless of any malice of intent or even awareness, personal gain or provable loss on my part. 'Seems like a wonderful business model.

Oh, please; do you really think that creators such as artists, musicians, film-makers, writers etc. work at their craft in the hope of someday discovering someone had breached their rights, just so that they can take legal action against them?

If someone offers their work for licensing, it is because they hope to earn an honest income from it. If it's good enough for you to use, then it's also reasonable to expect that you should compensate the rights holder for such use. 

In the Daybrook/ Sheldon case, do we know if they appealed? Did Daybrook just pay up?

Daybrook did not appeal. They reached an out-of-court agreement with Sheldon on the question of costs and fees, so that they did not have to return to Judge Birss to have him make a ruling on that issue, and when combined with the damages awarded by the Judge, the total sum was in the low five figures. I do not recall the specific amount, but it was somewhere between £15,000 and £20,000.

I maintain that it's a VERY different matter when the photo in question is so specific, ie a celebrity etc because in such a situation you probably won't have thousands of substantially the same thing available free, it's not like a generic pic of a cactus or something.

The specificity of the image is why Judge Birss allowed for Sheldon to apply a 20% mark-up above his standard fee, as this accounted for the exclusivity and scarcity of this particular image. The ruling makes repeated mention that the sole consideration under law is what the content creator could have reasonably licensed the image for.

Also, I would advise anyone against arguing that many other images are available for lower or zero cost, as a judge may take a dim view of someone who knew that other options existed.

Also, in that case it could be argued both that their use resulted in financial gain and / or was 'flagrant' thus section 97 not being applicable.

Flagrancy, or willfulness, is a secondary consideration under section 97.

Another big difference about that case is that they used the photo and that point is not in question. With many of the people on here that have received the Getty letter, it is simply picscout finding an image on their server, no proof they ever used it, or for how long, if anyone actually saw it etc.

... and images do not magically appear on a web server without someone putting them there, whether manually or via an automated process. As we're talking about UK law, there is no equivalent of the DMCA to exempt you from liability for third parties placing content on your server; furthermore, if the content was provided to you by someone subject you your direction (such as a web designer) then unless you have a contract where they agree to indemnify you against such actions, again, you are liable for the result of their actions - and would have to take steps against them to recover any losses.

Additionally, UK copyright law, insofar as establishing whether an infringement occurred, does not concern itself with the extent to which you "profited" from the use of the image - though that may form part of a damages claim if a plaintiff chooses - so questions as to how many people "saw" the image are irrelevant; all a defendant need prove is that you obtained the image without license or permission.

[Robert Krausankas (BuddhaPi)]

if the image was on a server, obviously it was "copied", and if that image is not in a password protected directory/folder, it's basically publicly facing and is an open target for many bots/ spiders /scrapers /snoopers / fuskers ect..including picscout.

[SherylM]

Thanks again DavidVGoliath. I will now close this thread (if I can) as I can see now the answer to my original question 'can we bottom line this' is a resounding no. It's also clear this forum is pretty dead because my post is the first activity in two months.

Regarding your dismissive comment about my (slightly spun in jest) mention of releasing my own stock photos. Of course as artists we all create art ultimately to have it appreciated for its merit and for the joy of creating. But after seeing so much of my music mercilessly ripped off, to the point of making almost no money from it, I find it empowering to see another artistic field I am interested in apparently incredibly, even unfairly, biased in my favour (granted, to an abusive degree with the likes of Getty). So Getty has, in a fashion, empowered me to pursue my photography.

Also, I have to mention, you DO realise this is 'extortionletterinfo.com' ?  Shouldn't you be posting on 'youareallguiltyandshouldpaygettynow.com'   

[Robert Krausankas (BuddhaPi)]

This forum is largely dead, simply because we don't get may UK users here to post, now where did anyone say you were "guilty", you wanted an easy answer, and there is none.each case is different with different avenues to fight.

[SherylM]

where did anyone say you were "guilty", you wanted an easy answer, and there is none.each case is different with different avenues to fight.

Did you not notice the smiley face. 

Regarding an image being detected on a server. Yes it's true that images do not 'magically appear' but in any other area of law 'theft' has to be demonstrated. For example if someone signs for a package which is a product obtained using a stolen credit card, you cannot simply go arrest the person that signed for it, nor can you go after the person that owns the house it went to. (I know this for a fact as it happened to my store in California, we knew exactly where our stolen item went but the police couldn't do anything).

Similarly, you have the right to keep people off your property and you can rightly claim that anyone that goes on your property is trespassing. But you cannot put bear traps and land mines all around your land because there are situations where trespassing my be innocent.

So gentlemen, we are talking about a usage of the copyright law wherein someone is found 'guilty' by the most obscure of means and requiring almost no proof and then penalised disproportionately. I find that unreasonable and unacceptable.

(and just for sake of argument, it IS very possible for someone to put an image on someone else's server, unlikely yes but entirely possible, there are various ways to gain entry depending on what software they're running and then you can stuff a whole library of images on someone else's server)

[DavidVGoliath]

But after seeing so much of my music mercilessly ripped off, to the point of making almost no money from it, I find it empowering to see another artistic field I am interested in apparently incredibly, even unfairly, biased in my favour (granted, to an abusive degree with the likes of Getty).

You're a musician? I'm sorry, I've just lost any respect or sympathy for you; as a creative artist, you absolutely should damn well know better than to appropriate the work of any other artist - doubly so if you yourself have fallen victim to plagiarism or infringement of your own work.
 

Also, I have to mention, you DO realise this is 'extortionletterinfo.com' ?  Shouldn't you be posting on 'youareallguiltyandshouldpaygettynow.com'   

I'm quite aware - but perhaps what you weren't aware of is that more than a few of the people who post here are photographers, musicians, designers, writers and so on. I'm one of them.

You came to solicit some broad advice on the specifics of UK law with regards to a copyright infringement claim, and I offered up some salient points for you to consider. If you want legal advice on the specifics of your own situation, then engage a solicitor or lawyer who is up-to-date on current UK case law on copyright.

You are entitled to hold the opinion that UK copyright laws are unfair or unjustly weighted towards the creator and rights holder... but forgive me if I do not weep for the position you find yourself in, because those very same laws protect your creations as a musician.

There are organisations such as PRS, the Musician's Union, the Association of Independent Music and many, many other entities who would have assisted you with your challenges and ensured you got a fair deal in the event that people attempted to exploit the fruits of your labour.

If you did not stand up to fight for your rights, if you allowed your work to be exploited without taking steps to address it or seek help in doing so, that's on you... but perhaps it would be worth you knowing that the UK has no statute of limitations on copyright claims via the courts, nor is there any requirement for a formal registration - so, if you feel sufficiently aggrieved with your situation, there is still time for you to do something about it.

[SherylM]

Dear 'DavidVGoliath'. If you read all of what I wrote you'll see that I never said 'I' got a Getty letter, you will notice I never said this was MY server we're talking about. So regarding your comment about losing all respect or sympathy for me I will say, how can I put this without swearing: You can shove it where the sun doesn't shine. You do not deserve an explanation for how my music was ripped off and why it would be futile to pursue it legally, you're too busy being smug and obnoxious to think outside of the extremely small and foul smelling box you inhabit. Screw you and the proverbial horse you rode in on. (yeah, I'm gonna get banned, let me see... yep, I don't give a damn)

[Robert Krausankas (BuddhaPi)]

you're free to speak your mind here, and I won't be banning you.

[DavidVGoliath]

Dear 'DavidVGoliath'. If you read all of what I wrote you'll see that I never said 'I' got a Getty letter, you will notice I never said this was MY server we're talking about.

No, you didn't; but you also made mention of consulting with an IP lawyer to get some answers, which people generally don't do for the fun of it - as well as making other comments from which someone could reasonably infer that you had received a demand letter from Getty and wondering as to the extent of your liability.

So regarding your comment about losing all respect or sympathy for me I will say, how can I put this without swearing: You can shove it where the sun doesn't shine.

The south pole? It could sit there happily for six months, so I hear.

You do not deserve an explanation for how my music was ripped off and why it would be futile to pursue it legally

I didn't ask for an explanation... and futile to pursue it legally? Wow, you are playing the wounded artist card. Protecting your work and rights might be time-consuming, it might be costly, it might be emotionally draining at points... but it's never futile. If you believe that your music is self-expression worthy of protecting, then it is never a hopeless act to defend it. If people appropriated and used it without your consent, you damn well know it has worth.

I do stand by my opinion, though: if you have infringed and are in receipt of a demand, then you're the pot calling the kettle black - artists ripping off other artists is parasitic behaviour that I have no time or sympathy for.

you're too busy being smug and obnoxious to think outside of the extremely small and foul smelling box you inhabit. Screw you and the proverbial horse you rode in on. (yeah, I'm gonna get banned, let me see... yep, I don't give a damn)

It's a relatively spacious and airy box, thank you, which looks out on to a nature reserve with all manner of wildlife. I've never seen a horse passing through, though we've had deer amble past a few times. You'll pardon me if I decline to saddle up on one, though. 

[Lost Marbles]

if the image was on a server, obviously it was "copied", and if that image is not in a password protected directory/folder, it's basically publicly facing and is an open target for many bots/ spiders /scrapers /snoopers / fuskers ect..including picscout.

I help a small charity & we have a "Getty" letter which we may deal with later (we inadvertently may be guilty and being honest we would be willing to pay a small amount not an extortionate sum for a small part of an image).
But have any solicitors on here had a look at picscout? Does anyone have server logs showing it's progress through the server? My contention is that picscout should be illegal under the computer misuse act 1990 + amendments. A web server invites people to look at the content of a website as defined by the http (hyper text links) it appears that picscout searches the server beyond the http links & downloads assorted files, from areas where the public are not invited.
An analogy is: you are invited to view the beautiful displays in a garden, you try the house door, it is unlocked so you go in and rummage around and take some information and possibly sensitive data and an amount of bandwidth. I would have thought that was a crime.
Any legal people like to comment please. ( I am not a lawyer and I get easily confused )