imagerights.com threat, advice needed

[beebaakid]

Hi, received a copyright infringement email from imagerights.com, I had used a found image as reference for a digital drawing which I then made into a greetings card for sale on my website (I never sold one), they are asking for £550 down from £800. I have taken the image down obviously, I am based in the uk and so is the copyright holder

my questions are -

1 - do I pay up
2 - what is the likelihood of them taking me to court
3 - what are my potential liabilities if it goes to court.

this has come as a big shock to me and feel its a unscrupulous practice not being given the opportunity to take the image down firstly before demands of money.

any advice much appreciated.

[AndyJ]

Hi beebaakid,

If you haven't already seen this thread it's probably worth a read as it answers most of your questions. The amount of money they are seeking looks out of proportion to the alleged infringement, which is pretty much how these companies operate.

It is interesting that in your case you do not seem to have directly copied the original image (ie just copied and pasted the image onto your website), but redrawn it. It is somewhat surprising that they found your version as they usually use image matching software, rather than humans, to find their images. I assume that your drawing was a very close reproduction of the original. However, that is slightly irrelevant to your question as you appear to be acknowledging that infringement has taken place, and sadly I don't think there is an exception to copyright which can come to your defence, unless you can argue that your version parodies the original or is a pastiche of it (see section 30A of the Copyright Designs and Patents Act 1988).

[AndyJ]

Hi beebaakid,

As it appears you haven't logged in again since my posting above (although you may have seen it without logging in), I thought it might be helpful for you and others reading this thread, to indicate how the courts assess cases such the one you have outlined. This can best be illustrated by the words of Lord Millet in paragraphs 38 and 39 of the judgment in a House of Lords case known as Designers Guild Ltd v Russell Williams (Textiles Limited) [2001] FSR 11

38. An action for infringement of artistic copyright, however, is very different [from a case of passing off]. It is not concerned with the appearance of the defendant's work but with its derivation. The copyright owner does not complain that the defendant's work resembles his. His complaint is that the defendant has copied all or a substantial part of the copyright work. The reproduction may be exact or it may introduce deliberate variations involving altered copying or colourable imitation as it is sometimes called. Even where the copying is exact, the defendant may incorporate the copied features into a larger work much and perhaps most of which is original or derived from other sources. But while the copied features must be a substantial part of the copyright work, they need not form a substantial part of the defendant's work - see Warwick Film Producers Ltd v Eisinger [1969] Ch 508. Thus, the overall appearance of the defendant's work may be very different from the copyright work, but it does not follow that the defendant's work does not infringe the plaintiff's copyright.

39. The first step in an action for infringement of artistic copyright is to identify those features of the defendant's design which the plaintiff alleges have been copied from the copyright work. The court undertakes a visual comparison of the two designs noting the similarities and the differences. The purpose of the examination is not to see whether the overall appearance of the two designs is similar but to judge whether the particular similarities relied on are sufficiently close, numerous or extensive to be more likely to be the result of copying than of coincidence. It is at this stage that similarities may be disregarded because they are commonplace, unoriginal or consist of general ideas. If the plaintiff demonstrates sufficient similarity not in the works as a whole but in the features which he alleges have been copied and establishes that the defendant had prior access to the copyright work, the burden passes to the defendant to satisfy the judge that, despite the similarities, they did not result from copying.

[beebaakid]

Thank you for taking time to reply, I managed to get the figures down and I'm gonna pay up as its taking over my life.
It has been an education, it feels like the internet is like the wild west, I cant believe there is not a law where they have to issue a cease and desist first, but I guess this would too sensible.
I was so disgusted I took my entire website down, there is very little information regarding court actions, which makes it even more scary when you get threatened. thank you again.

[ATMOSBOB]

I cant believe there is not a law where they have to issue a cease and desist first, but I guess this would too sensible.

As a photographer I cannot believe that people steal my work. Why on earth would I issue a cease and desist first?

[skellygeg2804]

Can I jump in on this thread please? I know it's an old one but I have just received a similar email from ImageRights.com and am unsure of where I stand also. I have immediately taken down the image they have flagged (I create paintings based on photographs, and they have identified this as breaching copyright of the image) ... but a quick search on social media shows a number of similar paintings to mine, based on the same original photograph.

Have I just been the unlucky one that has been identified? I've responded to the email straight away stating I've taken down the images, which I'm fine to do, but they are asking for £1000 settlement, which I really don't have. I'm based in the UK, where do I stand legally do you know please?

[AndyJ]

Hi skellygeg,

To answer your first question, yes I would guess that you are just unlucky that your painting has been singled out, but that's not say that if the creators of the other paintings are in the right jurisdictions, they won't be next.

Assuming that you used a substantial part of the original photograph in your painting then I'm afraid that can amount to infringement. However, depending on the photograph itself, it is unlikely that the market rate for a licence to use it is £1000. If you take a look at the many threads here which deal with this kind of unreasonable claim, involving not just ImageRights, but Pixsy, KodakOne and several other companies which operate in the same way, you will see how we advise you to deal this sort of claim.

[skellygeg2804]

Excellent, thankyou so much for responding. I will look into these companies in more detail. It is all extremely vague and I am UK based, where as I understand it, copyright laws are different to the US (where the image has originated from). I'll keep doing more research!

[AndyJ]

Hi again skellygeg,

If you had been based in the USA, there's a very good chance that their copyright law would have treated this use of the photograph as fair use because it was transformative and your painting in no way affected the photographer's economic rights to market his image. If you were to be sued in the US courts (highly unlikely) then there is very little chance that the judgment would be enforced in the UK because of the expense of doing so would be prohibitive.

[sosij]

I am having the same issue here, got an email from ImageRights asking for settlement money, I took the image down and apologised but I simply don't have the money they are requesting... I am based in the UK too. Not sure what to do now... Please help!

[skellygeg2804]

Interesting that you have got one too. I have had a few emails back and forth and they have reduced the amount to £500. My thoughts now are - what can they actually do if I don't pay? My social media account doesn't have my full name or address attached to it. My email address that they have contacted me through doesn't contain my full name. Can they actually 'find me' to pursue me for this? I find this all very bizarre. Essentially what they have of me is a social media account and an email. Or are they able to extract more information than that? I am considering paying up to settle this, but I really can't afford it. I don't want this to linger on, as I will worry and this will have a negative impact on my stress levels. Do this company actually chase up these sorts of things, or are they more fishing for the people who will pay to make the problem go away? I just don't know where I stand!

[sosij]

Hi skellygeg2804

I have no idea if they can track you down but I don't imagine it would be that difficult these days...

After much research I have decided to pay it (also negotiated amount) as is not worth the chance of having it escalated. Looked up online the copyright owner and looks like they do like taking people to court. That would cost a lot more money as you would also might to cover their legal fees etc.
I found people in other forums that got in that situation and ended up paying thousands, wishing they had paid the settlement

Some advice/your options I found in another discussion:
1. Make them an offer to settle (safe, small cost)
2. Ignore them and hope they go away (some risk, could go well or become very costly)
3. Hire your own solicitor to properly advise you on the matter (safe, but will get costly)
Source: https://copyright-demand-letter.com/pic ... in-the-us/

Rather annoying but feeling less stressed now, definitely lesson learned,
I would say just pay and don't think about it ever again!
Good luck x

[skellygeg2804]

Thanks sosij I am pretty much of the same mindset as you. For peace of mind I will probs my pay the negotiated fee, frustrating as it is & as much as I can’t afford it, I do not need this hanging over me and agreed, the power of the internet these days makes me nervous about how easy it potentially is for them to be able to trace me.
Annoyed at myself for getting into this situation in the first place, I also feel the tactics from companies like these are completely wrong - aggressive & borderline threatening from the outset. I feel for the many others who will be caught out by them & hopeful that laws may be altered in the future to allow for a less aggressive and money-orientated approach! (Wishful thinking I’m sure!!)

[AndyJ]

Hi sosij

It was worth noting that the link you provided deals with the situation in the USA. There are three majror differences between the UK and the USA when it comes to dealing with alleged copyright infringement. The first is statutory damages. If a work was registered with the US Copyright Office prior to the alleged infringement, a complainant in the USA can the ask the court to award statutory damages (statutory damages can range from $750 to $30,000 per infringing event) if their claim for infrngement is successful; in the UK the court will usually only award an amount of damages which equals the loss sustained by the copyright owner (usually the cost of a correct licence for the use complained about). Second, in the UK all copyright claims under £10,000 in value (that is, the claim on its own, not including any allowable costs such as court fees) are dealt with by the IPEC Small Claims Court and the rules of procedure for that court mean that legal costs of the winning party are not normally awarded against the losing party. In the USA legal costs can be very high and are usually awarded aginst the losing party. And thirdly, the exceptions to copyright, (ie those uses of copyright works which may mean your use of an image is not infringing) differ between the US and UK. In particular, the USA has a doctrine of Fair Use which tends to be much more flexible, especially when the alleged infringement can be shown to be use of the image for a very different purpose (so-called transformative use) that does not adversely affect the photographer's ability to monetise his/her work.

For all of these reasons, be very careful about advice given in the US context if you live in the UK.

[sosij]

Hi AndyJ
Thank you for taking the time to clarify the differences.
It's all very stressful when found in that situation and very confusing when you have no idea