Sunday, 20 October 2013

Someone has stuck one of my photos on his website without my permission. What do I do?

A Brownie Box Camera                                Source Wikipedia

Jane Lambert

It is amazing how often I am asked this sort of question. The topic comes up at least once a month at one of my IP clinics.  I am tweeted about it.  I get messages about it through my contact form.   Occasionally, I get the converse question: "I have just had a bill for a lot of money from an image library? Should I pay?"

Until recently the advice to both sides would have been as follows.   "The cost of litigation is prohibitive." I would have urged photographers to let it go. I would have advised alleged infringers to take no notice for nothing was likely to come of the complaint.  I now give different advice for two reasons.  First, the small claims track provides a low cost and virtually risk free forum for photographers and other copyright owners to pursue their claims for copyright infringement.  Secondly, His Honour Judge Birss QC awarded substantial damages for copyright infringement in Hoffman v Drug Abuse Resistance Education (UK) Ltd [2012] EWPCC 2 (19 Jan 2012) which serves as a deterrent to copyright infringers and an incentive to copyright owers.

The starting point for any discussion on this topic is that photographs are included within the definition of "artistic works" in s.4 (1) (a) of the Copyright Designs and Patents Act 1988 ("the CDPA").  S.4 (2) defines a photograph as "a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film."  So long as the photograph is original in the sense that it is not copied from an antecedent work and the photographer is a citizen or resident of the UK or some other country that is party to the Berne or other copyright convention to which the UK is party then copyright will subsist in the photograph as "an original artistic work" for the life of the photographer plus 70 years.

Copyright in an original artistic work is infringed by any of the acts mentioned in s.16 (1) of the CDPA. These include copying the work, issuing copies of the work to the public, communicating the work to the public and making an adaptation of the work without the copyright owner's permission. If you do any of those acts during the life of the author plus 70 years the copyright owner can claim an injunction (an order from the court to refrain you from doing or repeating the act complained of on pain of punishment for disobedience). damages (that is to say, compensation for the loss or damage that the owner has incurred), costs or other relief.

Now damages for infringement of copyright are intended to put the injured party in the position he would have been in had the infringement not occurred. In the case of a photographer that is computed on the amount a willing user would have paid a willing photographer bargaining at arms length.  In Hoffmann the judge assessed that figure at £10,000 which was considerably less than the £28,000 that the photographer had claimed (see Jane Lambert "Damages for Infringement of Copyright in Photographs: Hoffmann v Drug Abuse Resistance" 25 Jan 2012 NIPC Law). I hasten to add that not all photographers would get that fee. These were rather special photos.

The small claims track of the Intellectual Property Enterprise Court ("IPEC"), which has replaced the Patents County Court, will entertain claims for injunctions and damages or other pecuniary relief for up to £10,000.  I have written extensively about this jurisdiction in a number of articles which I have listed in Patents County Court - the New Small Claims Track Rules 20 Sept 2012 NIPC Law. In "How to bring a Small Claim in the Patents County Court"  12 Oct 2012 I set out a simple step by step guide to bringing an action in the small claims track from the letter before claim to a hearing in The Thomas More Buildings of the Royal Courts of Justice.

It is important to note two developments since I wrote those articles.  First, the jurisdiction of the small claims track increased from £5,000 to £10,000 on the 1 April 2013.  Secondly, IPEC including the small claims track is part of the Chancery Division of the High Court of Justice and not a county court.

I shall be presenting a webinar on the small claims track for the Institute of Trade Mark Attorneys on 12 Nov 2013 between 12:00 and 13:00. I shall also mention copyrights generally in my seminar on "Creative Output - Copyright and Related Rights" at 4-5 Gray's Inn  Square between 16:00 and 18:00 on 30 Oct 2013. If you want to discuss this topic generally or have a specific question to ask, call me on 020 7404 5252 or 023 9316 2030 during office hours. You can also tweet me, write on my wall or send me a message through G+, Linkedin or Xing.

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