Image Copyright Infringement Under CDPA 1988

Hi,

I ran an online forum (phpBB) back in 2006 which was a celebrity image forum. I recently received a letter from a photographer stating that a post made in 2007 contains images of a particular model which are copyrighted to the photographer. They state that use of the image without a valid licence is an infringement of their rights under the Copyright, Design and Patents Act of 1988. They have requested that I provide documentation within 14 days that I have a valid licence for the images and if no valid licence is available that I cease and desist from using the images and settle the retrospective invoice which is for over $16,000. I have removed the post from the forum on the day of receiving the letter.

I did not make the post on the forum and it was made by a registered user on the forum. The forum is free to sign up to and the users contribute to the forum. The images were not hosted on my server and were hosted on Imagevenue by the user which is a 3rd party image hosting site. No images are hosted on my server. I have no control over what a user posts and can only moderate/delete posts which I have done upon receiving this letter.

I was wondering what the best course of action would be in response to the letter. I have been reading up about Getty images and the extortion letters but the difference is I did not make the post nor were the images hosted on my server. Should I respond with the details of the forum user and their IP address as well as the Imagevenue details for removing the pictures from their hosting services? Any help on this matter would be much appreciated.

Kind Regards

See point #8 here: http://www.avivadirectory.com/blogger-law/

Also, additional information about copyright: http://www.smashingmagazine.com/2007/07/07/copyright-explained-i-may-copy-it-right/

In short, you are not liable for content/comments added by visitors.

Do not volunteer user information. That is a breach of privacy and trust. The only time you should volunteer information is under court order.

If they are requesting/demanding a response, simply state something to the effect of “Upon your request, the content referenced in your letter has been removed”. And basically leave it at that. They will likely send an additional email/letter should they want anything more from you. If they do request anything more, it might be best to consult a lawyer, especially if they are trying to get you to pay a fine.

Additionally, notify the user who made the post that you received a take-down notice and have removed the content in question.

Disclaimer: I am not a lawyer, nor have I had the displeasure of actually working through the process of receiving a settlement letter like this first hand. Considering that this is not a simple DMCA take-down notice, it’s a bit more complicated since they’re fishing for settlement money, so it might be a good idea to in fact consult a lawyer before actually doing anything.

Tell them to drop dead. These people are called copyright trolls. They just go around looking for instances where their images were used and then send letters demanding payment. Unfortunately, some people pay up. They continue the process because it is profitable for them. You don’t say what country you are in. But under U.S. safe harbor provisions, a webmaster is not liable for what users post. As you say the content was not hosted on your server but hotlinked in, even better for you. It would cost them plenty of money to pursue a lawsuit against you and you are not even liable for damages. They have nothing to gain by pursuing action and lots to gain if you fall for their sucker’s game and pay them.

http://www.chillingeffects.org/dmca512/faq.cgi

Also, you should report back on the supposed holder of the copyright and also the law firm representing them.

Many thanks for the replies.

Based on the responses, I feel it would be best to keep my response brief and simply state that the post within which the alleged infringing material has been removed as soon as this was brought to my attention. Furthermore, the allegedly infringing materials were never actually stored or transmitted to or from my server.

Is there anything else I should include within my initial response letter? Should I also include the details for them to contact Imagevenue directly to have the images removed?

I shall refrain from providing any user information. I am based in the UK so do not know if this affects anything in terms of the law either.

Thanks again.

In the UK you should be covered under the EU Ecommerce directive, where service providers are typically not liable for your users actions (there are of course always exceptions under certain conditions!). You didn’t host the files, nor did you even post them yourself. There should no case to answer to and to my knowledge, no precedents in EU law that can claim you have some convoluted liability with regards to embedding content from other servers (would cause many problems with youtube and soundcloud if there were). The image hosting company are the ones the photographer should be talking to, i.e. to get them to remove the image asap - if he hasn’t done that, it’s quite telling about his intentions. If he wants info on the uploader, he needs a court order from a UK court.

Tell him you’ve removed the post as a courtesy, confirm that it was made by a third party forum member and neither that you nor any employee were involved in the posting. Also underline that fact that it wasn’t hosted on your server - of course, he knows that part full well. End with a statement that you consider the matter closed. Send the letter by trackable post. Ignore any further communications unless you receive a summons from a UK court. Do not get into any form of protracted dialogue with him.

I am not a lawyer, so this is just a layperson’s opinion. If you are concerned, seek proper legal advice.

That is terrible advice. Please don’t do it.

It’s true that there are copyright trolls about, and you need to be on your guard against them.But there are also many legitimate copyright holders who have a genuine right to have infringing material removed.

Unless you are sure the person has no legitimate claim against you, the worst thing you can do is to ignore them. If they are simply asking for an image (or other material) to be removed, and if you are satisfied that they are the legitimate rights-holder, the very least you should do is to investigate their request (including contacting whoever posted the image) - and to consider removing the content on a temporary basis while you are doing so.

In this particular case, you are probably safe from any further action, but do you really want your site to be known as one that publishes pirated material? If I was you, I would not hesitate to remove the photo, regardless of whether you are legally obliged to do so.

Mike

A side note here, unless you receive the claim by registered mail or similar services (requiring you to sign for it), or if your hosted in US and your host receive a DMCA case for the material in question, I would completely ignore the request.

In most cases an email sent to you will not hold up in court, since they cannot prove that it was delivered and read by you. However if you respond to an email, you prove that you have read it and is aware of the possible infringement, and from that point on you could be penalized for not taking swift enough action if it end up in the legal system.

Also when replying to a claim, be short and precise, only say as much as required as again, anything additional you say could be used against you at a later point.

Ditto.

Just to add a word to my previous post:

I wasn’t for one moment suggesting that you should actually pay the guy the $16,000. Or even 16 cents. Even if he had some legitimate claim against you, any damages he could claim would be based on the actual amount he lost as a result of the infringement. Even top photographers don’t normally get $16,000 for a run-of-the-mill photograph appearing on a little-known website.

To summarise, I suggest the following:

1. Immediately remove the photo (which you already did).

2. Reply to the guy, stating: (i) You have removed the photo; (ii) You posted it in good faith, in the belief that the person who posted it had the right to do so; (iii) The fact that you have removed the photo should not be taken to mean that you accept any liability for it being posted; (iv) There is no question of your paying the invoice.

For good measure, you could head your reply “Without Prejudice”.

Mike

Are you sure that the photographer does indeed have copyright for these photos? Anyone could claim this. He quite possibly is a genuine owner of the copyright, but it is not something that you can assume merely on his say so.

Conceptually, it’s an easy scam to frighten people into eventually paying, say, $1,000 as a generously reduced ‘fee’ to avoid legal proceedings, when in fact the scammer doesn’t even hold the rights to the image. I’m not saying that this is the case with your complainant, but it is something you should check carefully. Things aren’t always what they seem. Don’t let them make you panic.

Paul

I am writing as a follow-up to my previous post. I responded stating that as a courtesy the post was removed as soon as this was brought to my attention and that the post was made by a third party which I was not involved with. Furthermore, the alleged infringing materials were never actually stored or transmitted to or from my server and based upon this that I trust the matter to be closed.

I received a 4-page response which contained the following:

The letter started by stating that in June 2014 they came across my website and found 10 images of a particular model to which the copyright belongs to their Partnership. They state that use of an image without a valid licence is an infringement of their rights under the Copyright, Design and Patents Act 1988 and a copy of this can be seen online here

The letter then claims that the professional freelancer photographer work in partnership with <name> and the purpose of the partnership is to licence works that belong to the photographer. The partnership agreement copy was also enclosed (6 pages). They write that they can find no record of me having obtained a licence to use the images and as such is an infringement of copyright. They state that I must stop using the images with immediate effect and compensate them by way of damages in the sum of £9,xxx and provided the invoice which was previously sent.

They have taken a screenshot of the page from my forum and write that this is their letter before claim and is laid out as they understand the rules of the Practice Direction – Pre Action Conduct which can be found here and direct atention to Paragraph 4 which describes the penalties a court can impose if either party does not follow the Practice Direction and ignoring this letter before claim could increase my liability to costs.

They require acknowledgment within 14 days of receipt of the letter before claim and not doing so reserves them the right to take any action available to them in law and they require a full response within 28 days or a full explanation why it is not possible.

The letter then continues to write that the images have been published in various magazines and are available for inspection with credit to the photographer. The photographer has carried out “simple searches” on Google (text and image) which would offer clues as to whether or not the images in question are subject to copyright. The letter writes that the results indentiy the photographers and from that the photographers website which contains the model. They continue with the images being published in particular magazines and that phoning the publishers would reveal the photographers and searching the model name within Google image search would lead to the photographers.

The letter then explains how the sum of damages was calculated using the software “fotoquote” and that this is considered an acceptable means of pricing photographic images and was considered an acceptable means of pricing photographic images in the case of Sheldon v Daybrook which can be read here

They write Sheldon v Daybrook allows the court to take into account interesting aspect of infringed image that can be included in the pricing calculation and that they have confirmed the accuracy of the final value of the quote generated by fotoquote by comparing it with a quote from Getty images and NUJ freelancers rate (they included a pricing matrix for Getty and NUJ in comparison to fotoquote)

They write another important point about the final value is that it has taken into account the recent decision of Hoffman v Dare whereby the court would expect a discount to be applied if the use of the infringed images was substantial which can be read here

They also intend to rely on the judgement in which the photographer (claimant) were awarded £9xxx plus costs and interest against a website which used 14 of their images without licence. (they enclosed a copy of this which is from the High Court of Justice Chancery Division Intellectual Property Enterprise Court – This judgment writes that upon hearing the claimants in person and the defendant not attending, nor being represented…there be judgment for the claimants in the sum of £10xxx)

They then write that in my response to their letter I confirmed that the images did indeed appear on my website and that I removed them. However, since I state that as I did not upload the infringing images myself nor did they have a physical presence on my server that I am not liable. They then write that they intend to rely on Case C-324/09 Link Here

They believe that working under the above conditions brings forth a fair reflection of what a willing photographer could expect to receive off a willing buyer.

If I accept the claim I should do the following:

Remove the images, never use the images again unless I hold a valid licence, settle the invoice in the sum of £9xxx.

If I do not accept the claim in full then I must write explaining why and furnish them with any documents I intend to rely on. If we cannot reach an amicable settlement, then they propose that both parties should invite the Intellectual Property Office to supply mediation.

The majority of the letter covers the photographer owning the copyrights for the images and the use of the images without a valid licence is an infringement of their rights. (Similar to what was written in the first letter). They state that this is their letter before claim. When I visit the URL for Case C-324/09 which they have provided a link for which is what they rely on I get “The document is not available in that language. “ and also when searching the Case C-324/09 on the site I get C-324/09 - L’Oréal and Others - L’Oréal SA and Others v eBay International AG and Others.

I would appreciate any advice on the next best course of action to take in responding to this. Should I provide more information like including the screenshot of the post with the username of the user included so they can see the post was indeed made by a third party as well as annotating the images being hosted on Imagevenue as well as providing them with contact information to contact Imagevenue regarding the removal of the images. I clearly will not accept the claim due to the invoice sum. Also they mention that if an amicable settlement cannot be reached that both parties invite the IPO to supply mediation. Would it be advisable to contact an IP lawyer now (obviously I would prefer not to due to the costs involved with a response letter but this may be beneficial in the long run?) or should I write up another response first?

Your help on this matter would be very much appreciated. Thanks

Though the SitePoint forums may have some members that are Lawyers this is the place for “web dev” discussion, not getting legal consultation.

How far have you gone with the suggestion in post #2 ?

I’m afraid Force Flow and Mittineague are probably right. Reply to their letter by saying that you are taking legal advice, and that you will respond as soon as possible. Then go ahead and consult a lawyer.

By the way, you never mentioned which country you are in. The court cases that they referred to (Hoffman v DARE and Sheldon v Daybrook) are both British (or perhaps English) court cases. And the fact that the figure they quoted was in pounds suggests that they are also in the UK. If you live in some other jurisdication, that could complicate the issue somewhat.

Mike

Yep, lawyer time. This is beyond simple advice that can be found on discussion forums or introductory information on copyright.

Sorry to hear that these guys are trying to pursue you further, but this is now a job for the professionals.

In all fairness, you’d have to expect this kind of follow up from a copyright troll - they are not going to just stop at one letter, and each letter is going to get progressively more threatening - that’s the way these things go, whether it’s copyright or parking notices.

Of all the cases they refer to, how many involved embedded (hotlinked) images? If you consult with a lawyer, make sure they fully understand the technical issues here - the fact that the image itself was never stored on your server, it was embedded using HTML (by a third party, not you). Again, make sure they understand the concept of embedding. You are not making a ‘copy’ of the image, your member was merely using HTML to point to an image stored on a different server.

To my knowledge, these is no court in the world that that said this is copyright infringement. If such case law existed, you’d expect most forums would have disabled image embedding by now and the lawsuits would be crushing the courts.

They then write that in my response to their letter I confirmed that the images did indeed appear on my website and that I removed them. However, since I state that as I did not upload the infringing images myself nor did they have a physical presence on my server that I am not liable. They then write that they intend to rely on Case C-324/09
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[/COLOR]The link is incorrect, this appears to be the correct one. Talk about tenuous. That case is about ebay sellers engaging in trademark infringement (not copyright infringement) and ebay’s potential liability in indirectly assisting with it . It’s a completely different issue to hotlinking. At most that case might be used to argue against secondary liability, however my reading of that is that the court felt it only applied under very strict circumstances, particularly where it seemed ebay was not acting to resolve the issue quick enough and where Ebay were also actively marketing these auctions via Google ads. [URL=“http://jiplp.blogspot.co.uk/2011/08/loreal-v-ebay-warning-to-online.html”]This site explains it further. It also appears that this is a general EU ruling, not UK law.

IMO even to the secondary liability issue, this case has zero relevance to your example. They are clearly (IMO) ignoring the hotlinking aspect here, which quite frankly is ultimately the most critical aspect! That case is not about hotlinking whatsoever. I wonder if they can be so quick to point you to UK case law that covers hotlinking?

Did they include the actual URL to the image itself, or are they just referring to the URL on your site that was hotlinking to it? Personally I would start using that actual image URL in all my correspondence to underline the fact that the image was NOT hosted on my server.

Clearly any alleged infringement is occurring on the image host web site. It is them who should be at the receiving end of this, not you.

Seriously, IMO this is pure and utter trolling. The problem is the more you communicate with them, the more likely you end up saying something they can twist and use against you.

Talk to a lawyer if you wish as he can send them a letter giving them the finger, but it’s a shame as these guys just cost you £200 to have that letter drafted. I would also point out that it is unlikely to end there, they’ll carry on threatening as it costs them nothing to send these letters to you and there’s currently no law against this type of extortion. You can also be sure that there’s many other people receiving the EXACT same letters. They no doubt have an entire series of letters already written. It’s a business model. No doubt the next letter will be offering you a ‘deal’ where they kindly offer you a reduced rate to make this all go away. Sound familiar?

Personally I would send them back a letter quick-sharp re-iterating that the image was not stored on your server. Explain the concept of embedding/hotlinking and how unbeknownst to you, a member of your site hotlinked to the image being hosted on a different server. Give them the actual url of the image. Point out that the case law they pointed to does not discuss HTML hotlinking. Point out that the moment you were made aware of the hotlink you, as a courtesy, immediately deleted the HTML embedding code.

However, that’s me, I have a strong interest in copyright law and I would word it very carefully, but I am unfortunately not a lawyer, so to be safe you should probably talk to one. IMO this is the kind of case that the EFF would be interested in, in which case you would probably get free representation from one of their UK affiliate members. Because if the trolls did somehow manage to get some kind of judgement on this in a UK Court, it could have consequences across the EU - i,e. all user generated content sites would have to disable embedding immediately.

But I will eat my foot if this ever ends up in court - the issue for the trolls is that if a UK court were to throw it out (which they should), that’s the end of the business model, so these things never go to court unless they can find someone who they know 100% for sure will not turn up to court (hence they get a default judgement, which is fairly empty when it comes legal precedents, but does however make their threatening letters look 10 times more scary - ‘look, we took this sap to court and we won’. They rely on the uncertainty factor - ‘will I be the first one they sue?’.

Some links that may be of interest:

http://www.dvorak.org/blog/2007/12/19/is-hotlinking-stealing-does-it-infringe-copyrights/

BTW, just a thought, but if you look at the Pre-action Conduct document they linked to, there’s this:

Examples of non-compliance

4.4 The court may decide that there has been a failure of compliance by a party because, for example, that party has –
FONT=Arial not provided sufficient information to enable the other party to understand the issues;[/FONT]

It seems from the Pre-Action conduct document that it is their job to enable you to ‘understand the issues’ to which they are threatening litigation on - this may be hard for them, as it currently appears they they themselves do not understand the concept and technicalities of ‘hotlinking’.

Hence, given their fondness for linking to case law, I would ask them to furnish you with an example of UK case law that shows that hotlinking/embedding is illegal under UK law, because you do not currently understand how you can be committing copyright infringement when the image itself is not actually stored on your server, but rather stored on the servers of Imagevenue.

Don’t let them cloud the issues here - it really does make their paper thin arguments around secondary liability irrelevant if the actual ‘use’ of the image isn’t actually illegal in the first place

Also please be careful as they (and maybe you) keep using terms like ‘remove the images’. There are no images on your server to remove, this is just HTML code that is being used to ‘point’ to an image stored on the imagevenue site. The only people who can remove the image are Imagevenue. You really have to make this point very clear indeed.

I’m wondering if these trolls have even checked this, maybe they just have a screenshot of your site sent to them by the photographer and they just assumed it was hosted on your server? Please tell me that you have the original ‘imagevenue’ URL? If not, get digging through your site’s entries in archive.org and see if you can find it.

Please keep us informed. And if you’d rather not say publicly, feel free to PM me the name and details of the legal firm threatening you.