A few years ago, a number of celebrities found themselves in hot water when they began posting paparazzi photographs of themselves on their social media accounts. Despite the intrusive circumstances in which many of the photographs were taken, photographers began suing celebrities for reproducing the photographs without their consent.
Since then, the Advisory team at the SoA has been contacted by an increasing number of writers who, in good faith, have reproduced online images on their websites, blogs and other social media, and have then found themselves at the uncomfortable end of a copyright infringement claim. These are typically pursued by a third-party company on behalf of the rightsholder, using web-crawling technology to identify potential unlawful uses, working at scale. Anyone who uses an online image (whether a photograph, illustration or cartoon) without permission does so at their peril.
The SoA vigorously defends copyright owners’ right to receive fair remuneration. Creators should expect to be fairly remunerated for the use of their work. However, when claims are brought wholesale by companies seeking excessive fees, and the circumstances of the use of the work are not properly taken into account, then we will step in to help negotiate a fair settlement. Often, these companies will simply cite their client’s rate cards, namely the standard sum that the copyright owner would ordinarily seek had permission been requested from the outset. Such fees can be extremely high. When such claims come to court, however, and are successful, damages will often be awarded based on the ‘user principle’. This means damages are calculated according to the sum that the parties would have arrived at and agreed to following free and fair negotiation. This can certainly help bring costs down in the event that, for example, a photograph from a commercial picture library has been used on a blog with extremely low traffic and without promotion or monetisation of any kind. In those circumstances, the blog writer might have used a royalty-free or copyright-free image, or, indeed, chosen not to use one at all if quoted a relatively high commercial fee.
The way in which the court applies the ‘user principle’ was illustrated in Absolute Lofts South West London Limited v Artisan Home Improvements Limited & Another (2015), a case which concerned the use of 21 photographs on a website without permission of the copyright owner. The Claimant sought damages of £9,000 based on the cost of commissioning a professional set of photographs. In assessing the damages payable, the Judge noted that the Defendant ‘had obvious limits marking the maximum he would be likely to pay, namely alternative ways to obtain the images he needed and how much they would cost’ and took into account that, having been notified of the claim, the Defendant had removed the 21 images and had replaced them with images from a photographic library, which had cost him £300. The Judge concluded, ‘what [the Defendant] actually paid… is as good a guide as any to what would hypothetically have been agreed between the parties. I award the sum of £300.’
However, the Court also awarded additional damages of £6,000, which are payable if the infringer knew or turned a blind eye to the fact that use of the images would infringe the rights of a copyright owner. The case is an important reminder that disregarding the rights of a copyright owner can have serious consequences.
Practical tips
- Exercise extreme caution whenever reproducing someone else’s image. Don’t assume that images that are available online are free to use.
- Before using any images, first obtain permission from the rights owner, or ensure that permission is not needed.
- If you receive a claim on behalf of the copyright owner, immediately remove the image while the claim is dealt with, as this should reduce the damages payable. If applicable, you will also want to take steps to delete any cached – or temporarily stored – versions of the webpage containing the image, which you should be able to do from the dashboard of your website host.
- When responding to a claim, be careful about any admissions you make that may then make it more difficult to defend the claim.
- Following the receipt of a claim, ensure that the claimant is entitled to pursue the claim on behalf of the true copyright owner and has complied with the requirements of the pre-action protocol.
- When negotiating a fee, bear in mind the ‘user principle’ and the fee which you would have agreed, given your use of the image.
- If in doubt, seek advice from the SoA.
Copyright, Designs and Patents Act
The law that regulates the reproduction of images online is the UK’s Copyright, Designs and Patents Act 1988 (CDPA). Principally designed to prevent copying, it also prevents performance of a work, adaptation of a work and communication of that work to the public, including online. If any third party undertakes one of the protected acts in relation to at least a substantial part of the work without permission, they could be found liable for copyright infringement. (Notably, most of the exceptions available under the CDPA – such as those allowing for quotation and the use of work for the purpose of criticism and review – will not apply to photographs, and the reproduction of a complete photograph will by definition represent a substantial part.) To recompense the creator, the court has a number of tools at its disposal. They include damages for loss, compensatory damages and injunctive relief to name but a few. Infringement action can be pursued both as a civil and as a criminal matter.