Plagiarism of Blog Articles

[AndyJ]

Hi Ann,

You will be given ample time to put your case, unless the judge considers it is unnecessary to go into all the detail, for instance if the defendant doesn't turn up or has already admitted liability before the hearing starts. You will be invited to discuss the quantum at a later stage, either after the judge has given her finding (which, it seems fairly obvious to me, will be that infringement has occurred), or if for some reason she wishes to defer giving judgment, at the end of the first hearing, so that she can give a later, written judgment which includes both the finding and the assessment of quantum.
A half day hearing effectively means the hearing can last for 3 - 3½ hours.

[AnnH]

Thank you Andy - that's good news because I'm going to need extra time ....

On re-reading the lengthy recent defence (which I got late, 2 days ago) I am discovering new things. The defendant has now said his studio is used by other photographers and for training students, and my article was intended as a useful education resource for those people. Since I presume those photographers and students pay to use the defendant's facilities and to undergo that training, I could perhaps now argue my material was indeed used commercially. I was not previously aware that it was used in this way - I did ask questions about usage in my initial pre-action communications but was told it was aligned only with the website terms and conditions. If I'd known about the students I would have set my invoice higher.

I wonder how he'd feel if somebody walked into his studio and started borrowing his facilities, and refusing to pay. He says I cannot charge him for using the material because I am allowing it to be 'linked to for free' by others. Would he take that view if people copied and used his photographs as theirs, simply because others were pointing to his site?

He says he's no longer the owner of the website, but he is still pictured as the owner of the business on that website. He now says he was not solely responsible for the website content, so cannot say where my content was sourced from. He said he could not respond to my pre-action letters because he no longer has access to his business email address - but it is the same email he just sent me his defence from (as well as his initial reply). The excuses have become more and more bizarre

I just hope the Judge has had time to read all the documents - I've done my best to number and cross reference them in my summary in case she has not.

[AndyJ]

Hi Ann,

When I read your opening paragraph I thought that maybe he was trying to claim his use of your blog was for educational purposes, so covered by the exception in section 32. But that doesn't seem to be the case (yet). If he does try to claim this at trial, then the instruction would need to be a great deal more structured and formal than the way you have characterised it, and of course he would have needed to acknowledge the source material for it to be fair dealing.

That said, your claim is based on his use of your material on his website, so even if there was genuine educational use as well, that wouldn't mitigate the main infringement.

[AnnH]

Hi Andy, yes if he just wanted to provide 'helpful material' he could simply have directed them via a link to the article on my website (which he did do after his infringement was called out).

His statement implies he was using my article to supplement the training which takes place at his studio, for which I presume he was/is being paid. Referencing material for the purpose of education and debate is one thing, but as you say publishing my material without permission on his site whilst passing it off as his own is quite another.

Speaking hypothetically, if the article were reproduced in training handouts (even with attribution) I would presume that is still copyright infringement since the work is copyright protected and no permission for its use was sought. A credit would help him escape a plagiarism charge, but surely not an infringement claim? If he is profiting from the training of which my material may form a part I think that would be commercial usage.

Currently all I have to go on is a brief statement along the lines of ''the studio is used as a training facility for students and others wanting studio experience .... the article was used as a supplement to our terms and conditions and an information aid with educational value to any photographers using the studio".

[AnnH]

I was in court this morning and I now have my judgment.

Incidentally, there was just the Judge and myself. The defendant didn't turn up but 10 minutes into the proceedings the Clerk entered and handed the Judge an email which had just come through from him. The Judge read the contents of the email to me and it was a rather stronger indictment of my character than he had previously expressed. Needless to say it did not do him any favours.

The Judge made it clear at the outset that she had ruled in my favor so the meeting was about finalizing quantum. I can say that the bill the defendant will be faced with is more than four times the size of the invoice I submitted to him as part of the pre-action correspondence. The Judge felt that the infringement was inexcusably flagrant and she felt every aspect of his defense was entirely without merit. It was ill-founded, and at times vexatious. I did get the impression that she felt I had undervalued the work concerned , and I will certainly consider that for the next one.

The defendant has 14 days to pay, however there is something of a backlog in getting the Judgments sent out , so it may be a little while before I get my money. I understand that if he pays within 28 days he can avoid a CCJ on the debtors register.

I feel that he cannot or will not accept that he has done something wrong. Given that he works as a professional photographer that is bizarre .

Incidentally when the infringement took place the defendant said that the business was not the same one and that business was dissolved. The new company wasn't set up until after the infringement. The judge wasn't having any of that, she said he cannot hide behind a company and he is held personally culpable .

I have no idea if the details of the ruling will be published , if that is automatic. I suspect I will write about this for my blog at some point, I believe there is nothing to stop me referencing the defendant when I do so.

Thank you so much for the advice I have received in this thread, it has done so much to keep my confidence and resolve in the right place . Nobody wants to go to court, it's a horrible thought. But sometimes we have to. No matter how low I might have set the invoice I sent to this particular offender, I am now certain he would still have resisted paying even a token amount. It's hard to fathom where that level of stubbornness comes from, but it is not founded in logic and it most certainly is not founded in Law.

[AndyJ]

Hi Ann,

That's very good news. Well done for seeing this through despite the aggravation. And hopefully the size of the damages will compensate you for your expenses. I doubt if the judgment will be published; the Small Claims Track cases rarely are and since this was an ex tempore judgment there's not much to write up. And yes, despite the judgment not being published, it is a matter of public record and so you can include the defendant's name in your blog. Just be careful not to defame him by saying something the judge didn't actually say in open court. If you want to put your thoughts on the matter into the public domain be sure to preface your remarks with phrases like 'in my opinion ... ' rather than stating things as facts which you can't actually substantiate or back up with documentary evidence.

[AnnH]

Thank you Andy, I'll be sure to carefully word any reference I make to the case.

If necessary I will update this thread with respect to payment, given how entrenched the defendant is in his resistance to the financial aspect.

But in the meantime, on to the next one .....

[AnnH]

I can confirm the Defendant has now paid his debt in full. Somewhat outside of the timescale stipulated by the Court, but just within the month beyond which I would have started enforcement. Pleased this one is over. Thank you so much for your support, I've learned a lot and wouldn't hesitate to do this again should I be forced to.

[AndyJ]

Thanks Ann, for wrapping up this saga for us. It's always nice to hear of the success stories when the law (eventually) works as it should. Sadly, the smaller cases don't get enough publicity and so don't act as an education or deterrent to others who are often ignorant about the law.

[AnnH]

I completely agree Andy. The smaller cases are the ones which are the most relevant to the situations most photographers will find themselves in. And as you say there is next to nothing out there. I suspect potential infringers probably believe court action is improbable on that basis alone (and that threats of court action are almost always a bluff). I do intend to blog about my experience as it may act as a reminder to all sides that the IP court system does serve our needs quite well. The court is certainly busy and growing more so, so creatives are at least making use of it. Throughout my time on forums I would see a great many complaints each week from photographers whose rights have been violated, but many would be accused of elitism for attempting to recover their loss. In the amateur ranks there's almost a stigma attached to wanting payment. Attitudes to infringement are still fairly casual and I think it helps to set an example where possible.

[CraigL]

Hi Ann,

invoicing is a good idea! I'll use that tactic in future too! I faced a similar problem with my blog posts and I found some great online tools to do reverse image searches and plagiarism checkers. consider using these to catch out more thieves!!