Image copywright infringement - stockfood.co.uk

[Erurer]

Hey All,

Hope someone can help, I received a letter from stockfood.co.uk for an image I used - wasnt sure at the time may have just googled and used it.
Anyways they asking for £2250 unless i settle within 14 days which is £850.
It's my other halfs website which she does not make a penny from and I will delete the image no probs but man the price is extortionate!

THey have a q & a attached in the letter as well outlining that we have to pay regardless, removing the image is not the option and if we don't pay they can take us to court.

Any advice on this would be highly appreciated.

thanks so much!

[DavidVGoliath]

Initial disclosure: I work as a photographer and licensing my images is how I earn my living, so my perspective will differ in some ways from other contributors here.

With that said, because you are dealing with UK law, there a few facts and precedents which are relevant regardless of opinion; firstly, you should have a read over this primer on how copyright works with respect to photographs in the UK

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/481194/c-notice-201401.pdf

Secondly, you need to know there are no time limits as to when court actions could be taken regarding copyright infringements in the UK; this was established in case law back in 2009

http://www.bailii.org/uk/cases/UKHL/2009/41.html

Thirdly, whether your wife profited from using the photograph is generally not taken into consideration in the courts, nor would consideration usually be lent to your claim that her website is not a money-making enterprise; case law exists that establishes a correct measure of damages during proceedings is ordinarily the lost revenues of the claimant.

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

I should state that a claimant does have leave to request an accounting of profits if there was evidence that unlicensed use of a copyright work was for commercial gain e.g. as part of an advertisment, or a product that is sold either publicly or privately.

Damages assessments can also allow for uplifts for willfulness and other factors

http://www.epuk.org/news/aerial-photographer-s-damages-claim-achieves-record-height

So, a claimant offering settlement for the sum of £850 if settled promptly might, at first blush, appear to be unreasonable, but there are factors to be weighed as to whether this is really the case.

The size (pixels) of the image as used by your wife, as well as the nature of use (commercial, editorial or advertising) and duration will all factor into what fee stockfood.co.uk would have otherwise offered the photograph in question to your wife. That sets the starting point.

If they can argue / prove that your wife in any way has knowledge of copyright law, or reasonably should have known about it (via her education or employment), then the door is open for willfulness uplifts.

You should use stockfood.co.uk's own license calculators to find out what it would have cost your wife to legitimately license the photograph in question from them - it looks like they offer licenses starting from £19 for editorial uses, and up several hundred pounds for other types.

You should also check that the photograph in question isn't offered for legitimate license by any other outlet; if it is offered by another outlet, then the basis for their claim becomes less clear... but do be aware that many companies syndicate their photographs to other agencies and will, in return, receive a cut of any licensing revenues from such partnerships - so finding it for sale on a different website does not automatically mean that stockphoto.co.uk have no grounds to send their letter to you.

You are always within your rights to ignore any settlement offer that is put in front of you, and you are also free to make a counter-offer if you feel that doing so would be in your own best interests.

My opinion would be that, if you can prove that your wife could have licensed the photograph from stockfood.co.uk for quite a bit less than their £850 offer, it may be worth your while offering whatever sum that is so as to settle the matter.

[Matthew Chan]

You should refer to the general Getty forum for generalized tactics and strategies used to intimidate and motivate people to pay.

Hey All,

Hope someone can help, I received a letter from stockfood.co.uk for an image I used - wasnt sure at the time may have just googled and used it.
Anyways they asking for £2250 unless i settle within 14 days which is £850.
It's my other halfs website which she does not make a penny from and I will delete the image no probs but man the price is extortionate!

THey have a q & a attached in the letter as well outlining that we have to pay regardless, removing the image is not the option and if we don't pay they can take us to court.

Any advice on this would be highly appreciated.

thanks so much!

[victim2]

The points raised by DavidVGoliath are very valid. Assuming you did infringe and that the agent named has the right to bring an action on behalf of the copyright holder then the normal value of the image would be at the heart of this claim.

Food photography is a strange business. I can take a passable photo of my lunch with my iphone and its worth very little. For others its a specialist occupation using specialist equipment such as lighting, macro or tilt and shift lenses and all sorts of tricks to make food look good, even going so far as to cover the food in non edible substances to fake a juicy look. Those operating at the top of the food photography game can command very high prices for their work. ( even higher than the figures you quote) Thus you have a wide range of prices and its not possible to say from a figure alone whether it is reasonable or not.

To solve this problem the courts will look first at the normal price of the work in question. If there is a sales  transaction history for this image then that will be paramount and the price that other agents charge for other works would be irrelevant. There is case law, see also Jason Sheldon v Daybrook House Promotions Ltd [2013] EWPCC 26 http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWPCC/2013/26.html&query=(title:(+sheldon+))+AND+(title:(+daybrook+))+AND+(title:(+house+))

Do bear in mind that the normal sales price of the image is likely only to be part of the claim. You may face additional sums for lack of attribution ( a credit ) , removal of the copyright information or meta data and last but not least additional damages for "Flagrancy".   

Flagrancy is a strange concept unique in Tort law which allows the court to award whatever it feels like on top of the value of the image depending on how badly behaved you were. Its unique to UK as as the EU directive which takes precedence  only says damages must be "dissuasive". Either way the IPEC ( Intellectual Property Enterprise Court ) routinely award sums well over the normal value of the image.  The definitive case law on this is ABSOLUTE LOFTS SOUTH WEST LONDON LIMITED vs ARTISAN HOME IMPROVEMENTS LIMITED DARREN MARK LUDBROOK [2015] EWHC 2608 (IPEC) http://www.bailii.org/ew/cases/EWHC/IPEC/2015/2608.html where the court awarded £6300 for images worth £300, ie 21x the normal value. This is at the top end of the scale as the defendant had made a lot of money from the images, however the legal principles hold true in all circumstances and its worth a read of the judgement to see how the law works. From your brief circumstances outlined I would expect a claim or an award anywhere near 20x the normal value of the work. Think parking without a ticket or catching  a train without a ticket, its not going to cost you 10 grand but it will likley cause you to take a deep breath ! A few times the normal value would seem to be reasonable but if your use was one covered by their £19 licence then 40x their normal price would seem to me as a layman to be excessive.

I am not familiar with stockfood.co.uk and I have no idea whether they threaten action then give up or whether they follow through on their threats. Its unwise to generalise, there are some claimants who anecdotal evidence on here strongly suggests bluff but there are others, especially small businesses that can represent themselves without legal costs, who can and will issue claims at the drop of a hat. Be especially weary if the photographer concerned decides to pursue the claim himself or herself. Hell hath no fury like a photographer infringed !

Remember if they know what they are doing, it costs very little to issue a claim in the High Court. A 1 page N1 form https://formfinder.hmctsformfinder.justice.gov.uk/n1-eng.pdf  and a cheque for £115 and a few days later your a defendant. Unless you are absolutely certain its just a bluff, it can be a wiser solution to research your case very carefully and then , if their claim is valid, negotiate a settlement. If they are asking £850 GBP and their normal selling price is say £20 GBP then I would suspect there would be lots and lots of room for negotiation. Conversely if they normally licence at 850 then there is little or no room to haggle. Either way Jaw Jaw is better than war war.

Disclaimer: I am not a lawyer and I know very little about professional food photography.