Court Report - the case of the
missing 33 © Scripts
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Jonathan C K Webb (Claimant:)
1.VA EVENTS LIMITED, Company No. 07400868
2.Mr Carl Jason Austin
3.Mr Dale Stanley Vicker
Case number IP14S01982, heard in the High Court, Chancery Division, Intellectual Property Enterprise Court (the IPEC) , before District Judge Hart, 5th March 2015.
In November 2013 while working on my website I stumbled on an illegal use of one of my aerial photographs. I was especially annoyed as it was a night aerial photograph which are very difficult to take and had cost me £1800.00 to charter the helicopter. The illegal use was not small either as the copyright infringer had removed all 33 of my copyright scripts and then used the image as the background for every page of his business website. After the copyright infringer failed to pay, issued proceedings in the High Court.
The case was an exceptionally flagrant copyright infringement and The short version was I was awarded a 500% Flagrancy uplift plus costs which I believe is a new % record for the IPEC small claims track.The undisputed value of my images was £300 ( ex vat) so I was awarded that plus £1500 Flagrancy uplift , plus £540 court costs, plus £82 train fare plus £90 witness expense plus interest making a grand total damages award of £2716.00
The other big first for IPEC small claims is the corporate veil was pierced. The two directors were held to be personally jointly and severally liable along side their now dissolved Ltd company. That means even though their Ltd company is now dissolved, the two former directors must pay these damages out of their own personal funds.
In the Corporate Intellectual Property world this is probably not big news but for small time creative like myself, the IPEC small Claims track has proved to be very effective and has changed the IP scene dramatically. Before the IPEC small claims track opened in 2012 the UK had become a copyright wild west. Copyright of Intellectual Property worth just a few hundred pounds was effectively unenforceable with legal fees threatening to top £20,000 for a case arguing over a work with only a three figure value. In my own case only a very tiny proportion of commercial users of my images were doing so lawfully. The vast majority of people wanting to use my images were simply illegally copying the image from my website and removing any copyright info from my images. In 2011 Google introduced "search by image" which brings up all the websites displaying copies of a particular photograph. I was shocked to find that almost all of my 45,000 photographs were being infringed often hundreds of times over for a single image.
In 2011 I was at the point of almost giving up and had reduced my expenditure on stock photography in the UK dramatically, preferring to invest more in my German photography where copyright infringement is much less of a problem. Once the IPEC small claims track opened all that changed dramatically. Not only can I make a few of the infringers pay me, but much more importantly many previous infringers are now having to actually licence works which has led to a big increase in normal sales over in addition to the small additional infringement settlement income. This has saved my business form destruction and I am investing in photography once again with a new camera on order and big plans for photo expeditions.
Back to this ground breaking case, here is a detailed outline of the award:-
The image that was infringed -
Click the image to view the full sized original which is the version that had been copied by the copyright infringer.
In the infringement the image was converted to black and white and each and every one of the 33 "© www.webbaviation.co.uk" scripts was carefully removed . Here is the version displayed on the defendants website plus a couple of magnified close ups showing how the copyright script was cloned out with the original and infringing versions side by side showing just two of the 33 instances where the script was removed:-
The defendants or their agents have carefully removed the words ©www.webbaviation.co.uk no less than 33 times from the face of the image. Each instance of © www.webbaviation.co.uk has been very slowly, very careful, very deliberately and very flagrantly removed with the Clone tool as found in photo editing software such as “photoshop”. Considerable time over many hours has been spent on removing this copyright script as each script has been expertly removed a tiny bit at a time so that the replacing texture matches into the rest of the photograph. Great care and effort has been devoted to ensuring that what was previously covered by the copyright script is replaced by something which looks like what should have been there beforehand , so for example, where © www.webbaviation.co.uk had previously covered a section of tram lines, in the infringing version of the image, new tram lines have been carefully painted into place so that little trace of the removed copyright script remains. Similarly where the script previously crossed a series of roof trusses over the Great Northern Railway Goods warehouse, new roof trusses have been painted in by the infringer to replace those previously covered by the copyright script. The result is that to the layman the image looks like an original image, however to an expert when viewed magnified, the clone tool leaves behind tell tale evidence of its use.
The defendant had put all blame on their elusive web designer who was also a dissolved Ltd company and apparently could not be contacted. The defendant did not provided any supporting evidence for the web designers alleged involvement such as the web designers contract.
The big issue of the case was the piercing of the corporate veil. The defendants in this case are a limited company and the two directors who I issued proceedings against personally as joint tortfeasors along with their limited company. One of the directors was present and represented himself, his co director and his company. He reiterated in court that the website had been contracted to a third party and any liability on their side should be a liability of the company and not the directors.
The judge found in the my favour and found the directors to be personally liable with the judge quoting MCA Records Inc v Charly Records  -
I had thought much of the veil piercing would rest on the fact that the defendants appear to have abused the corporate veil by dissolving the company in the middle of proceedings ( the form to dissolve the company was by amazing coincidence signed the day before the defendants received the claim form ! ) anyway that was not mentioned in the summing up by Judge Hart but much was said over the two directors controlling the company alone. The phrase "directing mind" from the above case was used.
Clearly veil piercing is not for every situation but in cases like this the directors must have been party to the decisions around the infringement, they are personally liable.
The defendants other defence was the usual section 97(1) "We didn't know it was copyright protected". This got short shrift from the judge who quoted the Hoffman Vs Dare judgement The judge said it was naive to suggest a company involved in promotion and marketing to say they though images found on the net were not covered by copyright.
When it came to flagrancy I was shown two letters which the defendants had written to the court describing the claim as ludicrous and preposterous. I had not been copied with these letters but was given time to read them during the hearing. As well as denying their own liability and placing blame on the un-contactable web designer the defendants letter also stated that myself, the claimant , was responsible for the infringement because I had put the images on the internet. Now if we go back to the original image above you can see that in the entire history of photographs on the internet there has never been a more clearly copyright marked photograph displayed so there is no doubt the defendants unwise comments and attitude to copyright contributed greatly to the amount of the flagrancy award and indeed the judge commented on the defendants attitude to copyright in her summing up.
Also coming back to haunt them, the defendants had described the removal of 33 instances of “© www.webbaviation.co.uk” and unlawful use of the image as "inadvertent" ! The judge commented the use of this word is misleading and indicative of the defendants attitude. The removal of 33 copyright scripts was described by the judge as "a deliberate deceit and a calculated removal of his asserted copyright". This also had the consequence of orphaning the work.
There was also derogatory treatment as the defendants had added their own assertion of copyright on the web page, deliberately removing the claimants copyright script and inserting their own copyright script at the bottom of each web page which indicates they knew about copyright.
Damages were awarded as the value of the image £300 GBP plus 500% for flagrancy, making £1800 In total . To that were added court issue fee £205, hearing fee £335, train fare £82, and witness fee of £90 GBP plus interest at 4% making a grand total of £2716.00 GBP.
All in all a very interesting day and for me the most important thing is not the £2716.00 I will get from the defendant , but the fact that the defendant has to pay £1800 for a £300 picture, plus costs, will deter other image users from infringing my work. This will be worth far more than £2716.00 awarded in extra sales from people who will now buy instead of infringe.
If any photographer have a copyright theft problem I would strongly recommend they use the IPEC small claims track. Indeed not just photographers, but any creators including musicians, writers composers and film makers. There is a certain complexity to doing it, you cannot just see a stolen image and issue a claim. You must write at least one warning "Letter before Claim" and in the interests of fairness I usually write several letters. This case was also exceptionally flagrant. Usual court awards for flagrant copyright infringement are in the 2x to 3x image value range and not 6x. It is best to seek advice from those who have done it before before you make first contact with a copyright infringer. If you are the victim of copyright infringement, I recommend as a first step joining one of the many organisations for your branch and seek support from those who have gone through the process before.
As always, I am not a lawyer and the above is not legal advice but simply the retelling of my experiences and how I have done things which may or may not be correct. This case has also been reported in the media including a case report on EPUK :- http://www.epuk.org/news/aerial-photographer-s-damages-claim-achieves-record-height
The full Approved
Transcript of the Judgement can be read here:-
For copyright in the UK, the UK Government publishes a short copyright guide ( click here ) and also the Copyright Designs and Patents Act 1988 can be viewed online ( click here )
Please include "aerial photographs" in the subject line of any email.
Webb Aviation, "Villa Minimus" 14 Laleham Green, Bramhall, Cheshire SK7 3LJ
Tel 0161 439 5197 Mob 0776 968 8748