Copyright Aid

Hi, I have been emailing a company that had used one of my pictures taken from my flickr account without permission. The picture was used on a web site for 6 months prior to me discovering it. The photo was clearly marked with the copyright symbol the year and my name. It was displayed on their site in this format as well. On my flickr site it was clearly marked with 'all rights reserved' and there was a link to request to licence the photo. I wrote to the company asking for them to remove the photo and for payment of £500. This payment is based on two things. 1. The equivalent cost of using a licensed photo in the way they have from getty images (£505). 2. On fees that I have said are required if someone uses my photo without permission £300 plus £1 per day (£502). This is clearly displayed on my flickr profile. I would never list my photo for royalty free sales on stock websites.
The company after a week or two responded stating that they had not infringed my copyright. After a further response from me they replied stating that the photo had been used by 'accident' and that they had not made any money from its use. They further stated that as they didn't men to use it or had no intention of causing me any harm or loss they see the infringement as very small and furthermore they will offer a payment of £50 which is what they normally pay for stock photos. They stated that this was the only offer they are willing to pay and will not enter into negotiations.
I have written back informing them that £50 is not acceptable and highlighted that if the matter goes to court, the court could award extra damages due to the flagrant infringement. I also offered the option of paying £380 on the condition that they use the blog part of their website to warn other users of the pitfalls of taking photos from the web for their own use without permission or something similar. I gave them a week to respond which has now passed and they have not responded in any way.
Firstly, is this suitable for the IPEC small claims track? Is it worth me pursuing as I have to obviously pay the fee for registering the claim in the first place. I understand the legislation side of things and know there is a clear infringement, I'm just unsure with the proceedings sides of things.
Secondly, I live in Liverpool and see this court is in London. Can I start the claim at my local civil court or does it have to be at the London court. If so can this be done by post or does it have to be in person?
3. Finally if it is do I claim for the £500 and ask for further damages in relation to the flagrant infringement and the fact that my photo is more likely to be orphaned as a result of their use (no link back to me, my flickr page or email so no one who saw the picture could contact me if they wished). Many thanks for any advice. Dave

Hi Dave,
Since you seem happy about the general position on infringement I will move straight to your question about the IPEC small claims track. But I am curious to know why you think damages for flagrancy might be appropriate in this case. If the site has left your image up after you informed them that it was your image and was being used without permission, then I would agree with you that that would indicate flagrancy. But if they took it down and are just haggling over what they should pay, that would not seem to amount to flagrancy. Similarly if they had removed your copyright notice from the image, then that too might constitute flagrancy (as well as a separate offence), but you indicate that they left the notice on the image.
Obviously the flagrancy issue has implications for the overall value of your claim, and therefore whether it is worth pursuing through the courts. Even if the amount of the claim was only the lower figure of £380, I think it would be worth it.
But yes, if you want to proceed, then the IPEC small claims court is the ideal route. Unfortunately, to keep the court costs down, the small claims court does not sit outside London (although the IPEC can and does on occasion). That said many claims on the small claims track are dealt with on paper and/or using telephone conferencing, so attending in person may well not be necessary. It certainly sounds as if your claim is fairly straightforward and could be dealt with on paper. The details of how the system works is contained in this pdf. Note that you must follow the correct preliminary procedure (the Pre Action Procedure) especially with regard to deadlines, and be prepared to go to mediation. Also note that only limited expenses can be recovered by the winning party. These will not, ordinarily, include the cost of legal advice or representation.
You also asked about how the possibility of your work becoming an orphan might affect your claim. I think the answer to this is, it cannot. The hypothetical risk exists whether or not the other site used your image, because of your Flickr account, and the risk would equally have existed if the site had legitimately licensed your image. So it would not be reasonable to argue that their infringement, if proved, would on its own, exposed you to this risk. And in any case, trying to apportion a value to that risk is almost impossible without any evidence of orphaning having occurred.

Hi, thanks for the reply Andy. Do I actually have to go to the court in London to register the claim though or can it be done by post, through another court building in Liverpool?
re the flagrancy I mentioned that as I had read this elsewhere that a flagrant infringement is where you have intentionally infringed copyright and also that If the image was used by a business, where the infringer knew or ought to have known that the image was protected by copyright. If this is correct then in this case I thought as it is marked on the photograph and on the page that there is copyright and they have chosen to ignore that, even when there was a link to invite to licence, then the infringement is a flagrant one.
Also re the orphaning, I thought that as they have not linked the photograph back to my flickr account or email address, anyone viewing it on their site who may wish to use it would have no idea who to contact or what type of copyright was in force etc. At least with my flickr site people can see my email address to email me or click the link for request to licence. That's what I understood from what I had read, but that's why I came here for advice as I wasn't sure.
Really appreciate your help.

Hi Dave,
Flagrancy is a bit like the civil equivalent of aggravation in criminal law: it is behaviour which goes above and beyond the basic tort of infringement. Infringement occurs when someone does without permission any of the activities which are reserved to the copyright owner, and it doesn't really matter whether if the infringement is done for private or commercial reasons (although this can be important in the case of secondary infringement). The ultimate in flagrant behaviour could amount to a criminal offence and that would certainly need to have a commercial component. So as I mentioned previously, ignoring your complaint about their use of the image and continuing to use it knowing of your claim would be evidence of flagrancy. But as I don't know their exact excuse for how they came to take and use your image (they claim it was a mistake, you say), then it is hard to see if this is anything more than straightforward infringement. Another form of flagrancy might be if you discovered that they were in the habit of doing this with other photographers' work.
As for lodging your claim, this can be done by post. In fact I suggest you phone the clerks first and talk through the process with them. The contact details are contained in Annex A to the guide I linked to in my previous response. You haven't mentioned it explicitly, but I assume you wish to process this claim yourself, in which case you might wish to read up on the relevant Civil Procedure Rules, namely CPR 63 which deals with intellectual property cases, and CPR 27 which deals with the small claims track (that is all small claims, not just IP claims).
On the wider matter of orphan works, no licence will be issued for anyone to exploit a work for which they cannot contact the rights owner until they have done a diligent search. This procedure goes far beyond someone just being able to easily find your email address. ln fact, the Intellectual Property Office who will administer the scheme are on record as saying that it would be quite exceptional for an orphan licence to be issued for an obviously modern photograph because there are so many ways in which search techniques (Tin Eye or Google Image Search for instance) can locate the original of an image found on the internet. The fact that your copyright notice was left intact on the infringing copy would have made finding you Flickr image relatively simple even without a link back to you account.

Thanks Andy, I spoke to a couple of solicitors who basically said it's such a small claim that no one would touch it and to do it myself, so yeah, bit if reading to do. Many thanks for the advice and links, I shall swat up and get the ball rolling. Thanks again