Court Report 2 - how a £390 photograph cost an unlawful user £2851.42
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Jonathan C K Webb (Claimant:)
Cardiff Steel Erection Limited (Defendant)
Case number IP17S00135, heard in the High Court, Chancery Division, Intellectual Property Enterprise Court (the IPEC) , before District Judge Hart, 11th April 2018.
Total awarded : £2851.42
In July 2017 I came across another illegal use of one of my aerial photographs. It was a fairly significant marketing use as it showed a large Cricket Ground where they apparently carried out some significant construction work. I knew instantly it was an unauthorised copy as the image was covered with the faint markings of where my copyright notice had been. Also I tend to remember any big projects I have been connected with and this wasn't one of them.
The image was displayed thus on their website:-
The original was one of my large sample images which can be viewed on my website here. The image had been reduced considerably in size with the effect that the multiple copyright notices which were readable on the original version were illegible on the infringing version. Here is a side by side comparison of a similar section of both versions.
In addition to the copyright notices on the image, the original version contained embedded rights management meta data including copyright notices and contact information which had been removed on the infringing version.
Before going as far as issuing a High Court claim, I gave the defendant plenty of opportunity to settle beforehand, writing three letters and an email, however their only response was one short email blaming their web designer.
Despite being told that this defence had no reasonable prospect of success ( with case law cited ) they made no offer of payment and so I issued proceedings in the High Court.
Having considered all the factors including the size of the company and the nature of the use I decided to claim £1560.00 plus costs and expenses. This is 4 x what I would normally charge a customer to licence an image and these additional damages were claimed pursuant to section 97(2) of the Copyright Designs and Patents Act 1988 ( click here to read the Act ) which allows the court to award additional damages where the infringement is "Flagrant" and ( or ! ) Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights which states that damages must be "Dissuasive", ie that they must be sufficient to dissuade the infringer from re-offending and also to dissuade others in a similar situation from offending in the first place ( Click here to read the Enforcement Directive )
The defendant filed a short written defence blaming the whole thing on their web designer. They didn't provide any evidence to support their position such as copies of correspondence or billing and I was unable to trace a a web designer by the name given. I wrote informally to the Directors of the Company pointing out that this defence had no reasonable prospect of success and quoted David Hoffman vs Drug Abuse Resistance Education (UK) Ltd  EWPCC 2 I offered to settle out of court however I received no response and so I filed a formal very detailed response to defence with the court. Additionally I asked the court to award additional expenses pursuant CPR 27.14,2(g) . This was a small claims track, so normally litigants cannot claim for their time spent on the case bar a limited "witness fee" for attendance to the hearing, however CPR 27.14,2(g) allows the court to award even Small Claims Track litigants additional expenses for their time. I argued , successfully as it turned out, that the defendant was unreasonable in pursuing a defence which had no reasonable prospect of success and in not making any effort to settle the matter out of court. I claimed £19 per hour for the time I had spent on the case pursuant to the Litigants in Person (Costs and Expenses) Act 1975
At the Hearing I was successful and I was awarded Damages of £2851.42 comprised of £1500.00 damages, £306.72 interest, £285.00 and £759.70 Litigant's in persons costs.
This was the first time I had claimed for additional expenses pursuant CPR 27.14,2(g) , however I and other artists, are becoming increasingly concerned that not only is copyright infringement increasing ( in my case the vast majority of commercial uses of my work are unlawful ) but that when caught, the Copyright Infringers are largely unresponsive and make little serious attempt to settle out of court. I don't know why this particular defendant did not make an attempt to settle out of court, they were repeatedly offered settlement with a payment of a lot less than the the court subsequently awarded. I can only assume they must perhaps have stumbled on one of the many websites and forums that wrongly advise people that claims for Copyright Infringer are a scam and should be ignored. This advice is just plain potty as all the relevant Statute Law and much Case Law can be read online so any one can look it up and make a sensible decision on whether they have infringed or not. It makes sense to check out that Copyright Infringeemnt Claims are genuine, but I like most photographers, am pretty easy to check out. My name and images are all over the web and indeed in many good bookshops. It wouldn't have taken this defendant very long to verify my identity and authorship of my work had they chosen to do so.
All in all another very interesting day and for me the most important thing for me is not the £2851.42 I will receive from the defendant , but the fact that the defendant has to pay £2851.42 for a £390 picture, will hopefully deter other image users from infringing my work.
If any photographers reading this have a copyright theft problem of their own 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 of Claim" and in the interests of fairness I usually write several letters. All the forms are online and to start the ball rolling you need to fill in an N1 Claim Form ( click here ) . 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.
For copyright in the UK, the UK Government publishes a 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