Flickr image

[silverpulser]

I have uploaded to the Flickr web site an image taken on my camera of a watercolour painting that belongs to my wife (it was painted by her grandfather who died in 1964) of the Berengaria Hotel in Cyprus. The image provoked a fair amount of interest, mainly amongst the Cypriot community, some of whom feel quite strongly about the allowed demise of the hotel. One of the interested people was researching the history of the hotel and asked whether he could use my image in a book he wanted to produce some time in the near future. I refused, stating that I wanted the image to remain freely available to anybody at no cost and not in a book which had to be paid for He asked me to reconsider several times and each time I reitterated my decision of refusal.

Now the book has been published I see that he has used my image and it forms a large part of the front cover. When I questioned him about it he argued that he didn't use my image on the Flickr web site but obtained permission to use it from another source that was using my image without my knowledge or permission. I have tried to reason with him that it is still my image, wherever he obtained it and that all images on the Flickr web site are by default given the status of copyright with all rights reserved and this is clearly stated.

Is this copyright infringement and do I have a case?

The author of the book (and owner of the web site advertising the book for sale) is now attending Essex University and living at Colchester, although he is a Cypriot by nationality.

Shaun

[AndyJ]

Hi Shaun,
Yes what you have described sounds like infringement. Since your wife's father died in 1964, the original painting remains in copyright until 2035, and I assume that since your wife has physical possession of it, she also inherited the copyright. Further I assume that she gave you permission to photograph the painting, and thus your photograph is a legal derivative work which has copyright separate from the painting itself (and this lasts for your lifetime plus 70 years).
So having established that, and within the terms of the Flickr site, you have the right to determine how your photograph may be used. From what you have said it sounds as though you wish it to have a Creative Commons Non-commercial licence*.

Noncommercial (nc) Licensees may copy, distribute, display, and perform the work and make derivative works based on it only for noncommercial purposes.

The problem with the CC system is that it can be abused. And this is what appears to have happened if someone other than the author of the book has used your image elsewhere on the internet without acknowledging your copyright and non-commercial use terms. However the fact that this has occurred does not permit the book's author to use the image without your permission. He clearly understands that you have not given permission. So assuming that the image in his book is your photograph, then you would appear to have grounds for suing him.
You do not say where the book was published, but if it has a UK publsher or importer/distributor then you should contact them and inform them that the image infringes your copyright and request that they cease distributing or selling the book until the matter can be reolved. If they fail to react to your letter, they may also be liable for secondary infringement under sections 22 and 23 of the Copyright, Designs and Patents Act 1988, which cover importing and dealling in infringing works.

If the book was published in Cyprus things are possibly more complicated. If the publisher is in the Greek part of the island, then EU law applies and you can contact the publisher in much the same way as a UK publisher. If the publisher is in Northern (Turkish) Cyprus, it will be difficult to enforce your copyright there as the Republic of Northern Cyprus is not a signatory to the various international treaties on copyright, and I have no knowledge of their domestic copyright legislation.

But before you go ahead it is essential that you can prove that the image used in the book is yours. I assume that no-one else has ever photographed your father-in-law's painting therefore, if you can show that the book illustration is definitely the painting, it will be up to the defendant to provide proof that his source is not your photograph. He cannot use the defence that he obtained it from elsewhere on the internet if the underlying image is yours.

There are several remedies available to you. You can seek damages, ask for the remaining unsold stocks of the books (in the UK at least) to be forfeit (or have the offending image to be removed from the books if that is possible). And you can probably obtain an injuction to prevent the author from using the image in the future. Or alternatively, since the book is already out on sale, you may find it simpler to accept the status quo, and require that the author or publisher pay you a licence fee for use of the image. This can be a one-off fee, or royalties based on the number of books printed. See http://www.societyofauthors.org/faqs-about-writing and http://www.londonfreelance.org/feesguid ... hotography for more details on this.

For the future, you may wish to read up on the Creative Commons system and register your image in the appropriate category. http://creativecommons.org/

[silverpulser]

Thank you so much for a very informative reply. This is really helpful.

Yes, I am pretty certain that I would have no problem showing that the image used was definitely the painting that hangs in my hallway.

Regarding the distribution of the book, it has been written in Greek as it was intended for consumption by the Greek speaking community. The author comes from Nicosia and I am sure that it is being sold in the Greek part of Cyprus and on the internet. The internet site is written in Greek but Google Translate shows how and where to purchase the book.

I have already written to the site owners and am waiting for their response.


Shaun

[silverpulser]

I have now had replies from both the publisher (iWrite) that I sent an email to and from the author of the book, Mr Andreou. I have asked iwrite if they can tell me who hosts the site that the book is being sold to the public on (it has it's own site). Here are relevant extracts supplying the most relevant part of their letters

REPLY FROM iwrite publications:

"...First of all, we would like to inform you about the situation between
Mr. Andreas Andreou and iWrite publishing house. iWrite is a
self-publishing team based in Thessaloniki (Greece), and its members
are authors themselves (along with their career as professionals in
the publishing industry) willing to help creative people to get their
books published. So, iWrite help authors publish their books, but
after each publication we are not responsible neither for the book
copies nor for its circulation. Authors keep all the book copies
themselves and they are responsible for circulating their books via
bookstores and the Internet. Further more, they are the only
responsible against copyright infringement and other related law issues..."

and in a follow up email from iwrite:

"..An initial advice from us though (by a fast-checking of the legal
advice you got until now) is to spend more time in order to get
informed about the copyright issues of paintings and photographs of
the paintings.
For example, the advice you got about your photograph's copyright is
very abstract and probably not right in your situation. According to
The Bridgeman Art Library, Ltd., Plaintiff Vs Corel Corporation
(1999): "an exact reproduction of an image in the public domain does
not possess creativity itself. Therefore, the reproduction is not
protected under copyright law."......

COMMENT - But this picture isn't in the public domain is it?

COPY OF COMPLETE EMAIL from MR ANDREOU:

Hello Mr Montgomery,
Even though I said that the issue with my book is over for me, your email to my publishing house forces me to come back to that. As they explained to you, being that type of a company, they don't have any responsibility for law issues. Therefore I want to ask you not to bother them instead of me. It's useless after all.
I can really prove if needed that I didn't use your picture from your pages. Can you prove the opposite? I can also prove at anytime that you are not the only one who possesses that picture but copies of that exist elsewhere.
The image that was used by me is referenced. If my source took the picture from your album is not my problem, so I don't worry.
Just to be informed I sought legal advice and I am glad that there is no danger for me, as I can prove my source at anytime. Among others, I didn't reproduce your image or sell it on its own or making money directly from it. Also, please note that a non-exact reproduction of a two-dimensional work is not covered under copyright law. 'In other words, an exact reproduction of an image does not possess creativity itself (colour, size etc.). Not only that but the image on the book cover lacks of originality compared to the particular picture. Therefore, the reproduction is not protected under copyright law, as my adviser informed me'. This is another reason that makes me feel safe.
The same exists for what you wrote to the publishing company 'However the fact that this has occurred does not permit the book's author to use the image without your permission. He clearly understands that you have not given permission'. Probably the painting belongs to public domain in order to reassure the free exchange of knowledge.
And if not, we must also consider 'fair use' that sets a limitation on the exclusive copyrights of an individual if the materials act in good faith and are used for a reasonable public access for things that have to do with cultural heritage (that's the case).
Other issues that must come under concern according to the advice I had is why you own a picture that the former owner of the hotel paid for and it should belong to him. It is not that easy to sue someone with a simple claim like yours.
As for the accuracy of the publication, including the exhibition of paintings and other materials that have to do with cultural inheritage, it is unlikely that a professional standard of care would be applied, since I carried my research as a private individual. Not only that but no one can prevent me from publishing any kind of information that contribute to the salvation of a building that is considered to be of a great importance.
What I can do is to mention your flickr site in the next edition of the book (if any). Nothing more. Having to do with the remedies, may I ask IF I WAS ABLE to agree with anyone of those suggested, which ones would you prefer?
Andreas

I might add at this point that there is no evidence that the painting was commissioned by the original owner of the Berengaria Hotel, nor do I think that this matters as I believe that the artist still has the copyright, though I am happy to be shown otherwise.

Shaun

[AndyJ]

Hi Shaun,
Very interesting pair of replies! Utter nonsense, but interesting.
First of all, the 'publishers' response. They seem to want to distance themselves from this issue, and as they are based in Greece, that might make things simpler. However their refutation based on the Bridgeman v Corel case can be utterly disregarded, firstly because it is a decision in the US Courts (Southern District of NewYork) and thus is not binding on the UK (or other EU ) courts, and secondly as you point out because the facts in that case are materially different to your case. Your wife's grandfather's painting is still in copyright and your photograph of it is a legal copy, which current UK statute and case law would recognise as being an original work and thus entitled to copyright also. This means that you can bring a claim to court. Indeed your wife as the presumed owner of the copyright in the painting could also bring a claim for infringement (see below).
Turning now to the author's response. He clearly has less of a grasp of how copyright law works than the publishers. He is wrong in supposing that because he obtained a copy of the photograph from somewhere other than your Flickr account, this absolves him from responsibility. Copyright infringement is a matter of strict liability. Once it has been established that you (and your wife) are the legitimate owners of the copyright in your respective works, and that the image(s) appearing in the book are copies thereof, Mr Andreou's motives/beliefs are immaterial. You do not have to prove anything beyond that. He needs to convince a court of his version. Even if he could somehow forensically prove that his photograph of the painting was a different one from yours, he would still need to prove that that was a legitimate copy authorised either by your wife or by her late grandfather. Clearly a court would be most sceptical about that sort of explanation.
I've already covered his re-quoting of the publisher's misguided point arising from Bridgeman v Corel, but just to make it totally clear, 'original' in the sense the Copyright Designs and Patents Act uses the term does not mean 'unique' or 'novel'; it means that the work originates from the skill and labour of the author. Even an amateur photographer is deemed to exhibit the necessary skill and effort to be able to assume copyright in his work, although putting the painting onto a photocopier would not have the same result, because the photocopier automatically produces a copy without any human skill or effort beyond pressing the button.
As for his claim that the painting is probably in the "public domain in order to reassure the free exchange of knowledge" unfortunately this bears no relation to the actual law either in the UK or Greece which is also a signatory to the Berne Convention.
Next he claims the defence of fair use. There is no fair use exemption for things that have to do with cultural heritage in UK law (and I doubt if Greek law provides for this either). In any case even if that were a true fair use, it would apply to the painting and not your photograph. Clearly there is no direct cultural heritage value in your photograph while the painting exists. That would be like saying a postcard of the Elgin marbles had cultural heritage value. (possibly a bad choice of example given the political sensitivity of the marbles!).
Next is the assertion that the true owner of the painting is the owner of the hotel (or his heir). Clearly for this claim to be valid there would need to be some proof that the painting was commissioned by the hotel, when and on what basis. Without that, this is pure speculation. Given the turbulent history of Cyprus in the 1960s and early 1970s, I suspect that providing any documentary evidence to support this assertion will be difficult.
Finally I'm not entirely clear what point he is making in his penultimate paragraph. However there is no defence in claiming to be an amateur author, because as I said earlier, infringement is a matter of strict liability, so the level of diligence in research is irrelevant. If he had been claiming that he came upon the picture without knowing who the author was, then there is a section of the Act which says

"For the purposes of this Part the identity of an author shall be regarded as unknown if it is not possible for a person to ascertain his identity by reasonable inquiry"
and then goes on in a later section to say
"If the work is of unknown authorship, copyright expires—
(a )at the end of the period of 70 years from the end of the calendar year in which the work was made, or
(b) if during that period the work is made available to the public, at the end of the period of 70 years from the end of the calendar year in which it is first so made available"

In other words due diligence might be necessary to try and discover the identity of the author, but even if that fails, it does not mean the work is in the public domain. In any case none of that is relevant because Mr Andreou has known from the start that you were the photographer and had corresponded with you. His statement 'Not only that but no one can prevent me from publishing any kind of information that contribute to the salvation of a building that is considered to be of a great importance' is unlikely to be upheld by a court. Indeed they may take it as evidence of flagrant recklessness, which could result in greater damages being awarded against him.
I think you have a very strong case for a claim of infringement. However it will be an expensive matter to take it to court, and although you may well get the court to award costs against the defendant if you win, there is no guarantee that he will be able to pay the costs.
You are thus faced with a difficult decision on how to proceed. It would seem that Mr Andreou has yet to see the weakness of his case, and therefore seems unlikely to agree to pay a licence fee for use of the photograph, assuming you felt this was appropriate given your earlier remarks about the commercial use of the photograph.

[silverpulser]

Phew...what an exhaustive reply. You guys really humble me!

Thank you so much for your interest shown in this matter. I have replied to Mr Andreou regarding the last sentence of his email to me i.e. "..may I ask IF I WAS ABLE to agree with anyone of those suggested, which ones would you prefer?" and made an offer of a licence fee which, in my view, is very modest. I await his reply.

Shaun

[silverpulser]

I see that iwrite ("http://iwrite.gr") are using the same image to publicise the book in their portfolio.

Given that I have put them on alert, should they not be displaying this now?

Shaun

[AndyJ]

Yes. Greece (and the greek part of Cyprus) are members of the EU and therefore subject to the same eCommerce Directive (2000/31) as the UK on the subject of copyright takedown notices More details here in pdf format of Greece's compliance with the Directive. So you can go direct to the service which hosts the iwrite.gr website and ask them to remove the image as it infringes your copyright. There is no specific format for the notification, although the internet hosting company may have a preferred method of reporting.
Here is the whois information on the domain name:

Domain Name: iwrite.gr
Availability: In Use.
Details: Domain Name:iwrite.gr
Domain Handle:d977b3925dcb6471ab389e07cada7a7df-gr
Protocol Number:1502595
Creation Date:15-3-2010
Expiration Date:14-3-2012
Updated Date:27-5-2010
Registrar:USABLEWEB ΕΠΕ
Registrar Referral URL:http://www.papaki.gr
Registrar Referral Email:info@papaki.gr
Whois Server:
Bundle Name:iwrite.gr
Name Server:ns1.pipedns.com
Name Server:ns2.pipedns.com
Name Server:ns3.pipedns.com

From this I think papaki.gr are the hosting service. Regretably the majority of their site is in greek so without putting it all through Google I haven't been able to find a link to report copyright infringement. I have no doubt that they will have english speakers/readers who can deal with your notification, assuming that I am right that they host the iwrite.gr site. You need to refer to Article 14 1(b) of the Directive quoted above, which says a service provider is not liable for infringements etc of which they are not aware, as long as "(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information."

[silverpulser]

Thank you very much for that info. In fact there is a UK/English flag in the top right hand corner of the papaki.gr site which very conveniently allows me to see what I need in English, including contact information. I have written to them on their web page messaging system as follows:

"Dear Sir, I believe that you are hosting the iwrite website (http://iwrite.gr). This site is displaying an image of mine which is subject to copyright for which no permission has been given to use and is therefore copyright infringement. The image is shown in the section of their site under the heading Portfolio at http://iwrite.gr/?page_id=124. It is the image of The Berengaria Hotel which is the image subject to copyright. Clicking on this image goes to http://iwrite.gr/?p=502 which again shows a book cover using the same image. Also there is a site hosting the book with the same image subject to copyright at http://veregaria.iwrite.gr/.

eCommerce Directive (2000/31) under Article 14 1(b) of the Directive quoted above, says a service provider is not liable for infringements etc of which they are not aware, as long as "(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.". I am now giving you formal notice of this infringement and request that the images be removed from the website quoted above.

Kind regards.

Shaun Montgomery"


Do you think that will do the job?

[AndyJ]

Hi Shaun,
Yes, I would hope that if they are the correct hosts, that should be sufficient.
Good luck.
Andy

[silverpulser]

Since I wrote my last message matters have progressed. Papaki were the Domain Registrars so no help there. The hosts were in fact the servers which you showed at the bottom of your list shown on the forum message, pipedns.com. Their web site is called JustHost.com and is located in the USA... I wrote to them to say that iwrite.com and veregaria.iwrite.com (the publisher's site and author's promo site) were using my image and they replied quickly saying "..You need to provide us with the copyrights of this picture , after we will try to assist. Thank you...". I sent them a link to my Flickr image page as well as telling them that when my wife's grandfather died in 1965 his possesions (and of course copyright ) passed to his widow. When the widow died in 1985 her possesions passed to her eldest daughter and when she died in 2005 her possesions passed to her niece, my wife. My wife granted permission for me to photograph the painting and upload it to the Flickr community.
Shortly afterwards JustHost wrote to me saying that both the servers for the publisher and author's promo site had been suspended A result at last or so I thought! The images on their web sites now show the text "we have been censored!:" in place of my image.
Now the publishers are understandably annoyed at this outcome and have demanded that I show them documentary proof that my wife has copyright of the painting which hangs in our hallway and also threatening me with possible demands for adjacent financial losses. I have given them the names and years of the deaths of my wifes ancestors from whom copyright devolved and also advised them that I also have Wills, birth, marriage and death certificates to back my claims up.
Can they really demand that I send them this documentary evidence?

[AndyJ]

Now that you have discovered that the host server is in the USA, it means you can use the Digital Millennium Copyright Act (DMCA) procedures to get the offending images removed. You have effectively done this with your email to Justhost, although normally there is a specific format which should have been used. If you look on wikipedia under 'DMCA Takedown' you get a fairly good breakdown of the procedure. The hosting service have a right to know that you are the legitimate owner of the copyright - to avoid time-wasters - but this doesn't need to be to legal standards. The publishers, iwrite, have no right to demand written proof of the legitimacy of the copyright claim. They have the option of using the 'put-back' procedure of the DMCA, but in most cases hosting services rarely act on these if they feel there is any chance of them becoming involved in a court action. Their contract with iwrite will give them discretion to refuse to host certain material which they deem to be non-compliant with their terms and conditions, and iwrite have very little comeback, other than to take their business elsewhere.
It is interesting that iwrite still maintain that they are not the publishers of the book. By publishing the infringing images on their website they have become liable for secondary infringement (possessing or dealing in an infringing copy) and so could also be sued in the UK courts. If I were offering them advice - which of course I'm not - they should shut up and stay out of this because they possibly have as much if not more to lose as Mr Andreou. You have provided them with reasonable details about your claim to copyright in both the painting and the photograph, and you certainly don't have to do more.
I think this has got to the stage where you need to think about engaging a solicitor with IP experience to advise you on this. If it was just between you and Mr Andreou that probably wouldn't be necessary, and in view of the fact Mr Andreou probably has very little money either to fight a case or pay damages, it would be inadvisable for you to run up lawyers' fees. But if iwrite wish to continue to be involved, they may have assets which make the prospect of you gaining damages much more realistic. If they insist on playing poker with you, it might be well to show them the strength of your hand (via a solicitor's letter) at this stage, in the hope that they will both back off and also put some pressure on Mr Andreou to accept your offer to settle. It is hard to tell from their email whether they are bluffing or just plain ignorant of their legal position.

[silverpulser]

After I wrote my last message I received an email with what amounts to an acceptance of my latest offer to the author of the book. As a "struggling student" I offered him the prospect of paying me the licence fee by monthly installments via a bankers standing order from his UK bank account. As his University is on a month's holiday he is away from the UK on holiday so I have suggested to him that he pays the first installment by PayPal (I know that he has an account with PayPal) to which he has agreed pending the transfer of funds from his bank account into his PayPal account in some 5/7 days. When that first payment arrives I feel that he will have shown his good intent to pay the fee and I will allow the use of my image in his book for current and future editions. I also intend to allow the use of the book cover on the internet to promote his book. I don't know whether that would allow his publisher to include the same in their Portfolio's web pages. I don't wish to give Mr Andreou any more strife; however, my feelings for his publisher are quite different!
If the author has signed an agreement absolving iwrite from being to blame for displaying non licenced images then once they have been advised of such an image being on their site who is liable, the publisher or the client?
I will write to iwrite and tell them of my decision not to furnish them with all my documents of proof of copyright. I suppose that I could suggest to them that they may like to obtain their own copies of the Wills by writing to the York Probate Registry, as they are public documents.

[AndyJ]

It is good to hear that Mr Andreou may be seeing sense at last. He could have saved you both a lot of grief if he had been prepared to listen and compromise at an earlier stage.
As for iwrite, irrespective of what Mr Andreou says or does, they are liable for any infringement by publishing your image on their website now that they have been made aware that it is an infringing image. As with Justhost, once you have provided the basic details of your claim, they lose all the 'safe harbour' protection they might previously have claimed under either the DMCA or Eurpoean legislation.
If and when you licence Mr Andreou to use your image in his book (which I assume includes the picture on the cover) then it would be reasonable for the iwrite site to also use a picture of the book in order to publicise it. This would be a technical infringement (a copy of an authorised copy) but I think any court would take the view that this was too trvial to be a worthwhile claim. You might make it clear in the licence you provide to Mr Andreou that in addition to using your image in his book, he may also use it to publicise the book. On that basis, iwrite (or Amazon etc) would have an implicit licence to use the image as shown on the cover of the book for very limited purposes only. In return one would hope that iwrite will use their influence to ensure that Mr Andreou upholds his side of the bargain, because if he fails to honour his side of the contract, iwrite would lose its implied licence.
Hopefully both the author and iwrite will see this as a useful lesson in getting your copyright clearances sorted out before publication.

[silverpulser]

Oh dear, the iwrte team don't seem to want to take my word regarding copyright of the painting. Here is a copy of their recent communications

"..you didn't understand fully our demands in the last email. Your
decision to make a complaint to our hosting company caused us
financial losses. In this complaint you stated that you are the
photographer of a painting that your wife own the copyright. Based on
this information, our hosting company decided to suspend temporarily
our server. In that sense, we would like to ask you again to provide
us all the needed documents to prove that you (through your wife) are
the rightful holder of the copyright of the painting. If you can't
prove such claims, then you will have a hard time to convince any
court that there is a copyright infringement at all.

To conclude, despite how your dispute with Mr. Andreou will settle
down, we would like to ask you kindly to provide us all the legal
documents needed to prove your claims regarding the copyright of the
painting..."

I wasn't going to supply any further documented proof but, in the hope of satisfying their wishes further I sent them transcripts from the relevant parts of my wife's grandfather and my wife's aunt's Wills (names removed were included in the email to iwrite) :

"..I believe that I have provided all the necessary information to show
how copyright of the painting devolved to my wife.

I have re read Mr Clark's Will and there is a small variation in that
he left all his posssesions (including his works of art, pictures and
prints) to his wife for her use during her lifetime. The relevant
section of that Will reads as follows:

Clause 3. I bequeath all my household furniture plate plated articles
linen china books prints and works of art and articles of personal use
or ornament to my Trustee upon trust that they shall permit my said
wife to have the use and enjoyment thereof during her life and after
her decease shall divide the same equally between my daughters in such
manner as my Trustees shall in their uncontrolled discretion think
proper provided that if either of my daughters shall die in my
lifetime or in the lifetime of my wife then such furniture and other
effects shall be held in trust for the survivor absolutely.

Both daughters survived Mr Clark and his wife,
so they divided the belongings by agreement between themselves. The
eldest daughter (my wife's aunt), retained the painting (to which my
wife's mother will attest) which was then
passed to my wife in accordance with her aunt's Will. The
relevant section follows:

Clause 4. I GIVE all of my property both moveable and immoveable
whatsoever and wheresoever and all property over which I shall have
at my death any general power of appointment or disposition except
property otherwise disposed of by this Will or any Codicil hereto to my Trustees upon trust:
(c) subject as aforesaid to hold such property and proceeds of any sale
(with power to invest all moneys in investments hereby authorised and
to vary such investments for or into others of a like nature) and the
assets from time to time representing the same (hereinafter together
referred to as "my residuary estate") and the income thereof upon the
trusts and with and subject to the powers and provisions hereinafter
declared Clause 5. MY TRUSTEES shall hold my residuary estate and the
income thereof upon trust for my said niece (my wife's name removed here)
she shall be living at the time of my death but if she shall not be
living then upon trust for my great nephew (my son's name removed here)
provided he shall reach the age of 25 years old absolutely.

As my wife was alive at the time of the death of her aunt she
inherited all her possesions, including the painting

I hope this clarifies once and for all, the question of ownership of
the painting of the Berengaria Hotel that now hangs in my home..."

After all that I get this reply from iwrite:

"..thank you for your fast reply. Please provide us scanned copies of the
documents you mention in order to "close" positively this issue. Mr. Andreou informed us that you agreed to solve your dispute
out-of-court. Those are great news for both sides..."

Really I am at a loss as to what to say, other than "get st....d" or "take me to Court where I will prove my claim at your expense".