Copyright Aid

Hi
I found this forum earlier today and there seems to be some great advice so I’m hoping I can get some help with my particular issue.

I’ve been contacted by Stock Foods for using one of their images on my web site. I got the image from a company that I have a subscription with for recipes including images that when I subscribed was told I could rebrand and use the material on my web site.

Unfortunately Stock Foods seems to have the exclusive license to distribute one of the images I was supplied with.

Anyway, similar to the other two threads on this forum I have received an extortion letter from Stock Foods. £1188 or £2700 depending on when I pay.

Originally I received an email off them stating their claim. I wrote back with a variation on the Getty letter which seems to be all over copyright forums.
They replied rejecting my letter. I didn’t reply.

A week later I have received a second letter stating that if I don’t pay the full £2700 by Monday 22nd February they will issue court proceedings.
What strikes me about Stock Foods is how incredibly unprofessional they are in the way they conduct and present themselves.

The demand portion of the letter contained details of costs, charged vat on the license fee but none of the other costs. It wasn’t laid out like you’d expect an invoice to be and had no vat number.

The first letter I received from them wasn’t dated and wasn’t set out as you would expect a formal letter to be. Just a subject line at the top and then off into their spiel. The letter made assumptions about where the image came from and told me I was incorrect about section 97 of the Copyright Act. They provided me with a copy of the contract they have with the photographer but this proves nothing with regard to the image in question.
The second letter received today was actually a copy of an email they’d email themselves. It was marked as Pre Court Action Letter.

As mentioned above they have given me 6 days to pay in full before court action commences.

Should this letter as it is marked Pre Court Action Letter follow pre court action protocols?

In this letter they also tried intimidating me with ‘You may or may not be aware that Stock Foods has recently won a similar case in IPEC. The defendant was ordered to pay significantly more than the original amount requested by Stock Food along with costs and witness expenses.’

Is anyone aware of the details of this case and where I might find them?

With regard to the image it is currently being used on several websites. I’ve taken a look at the meta data on two of the sites and the image copyright is attributed to a different photographer than the one Stock Foods are representing. One of the websites using this image is the UK’s biggest retailer. This strikes me as very odd.

Can I use this info in any way?

There are numerous similar images which are royalty free for as little as $1 available.

So I’m wondering how to respond. Can I use their haphazard approach against them? i.e. Vat invoice, not following pre court action protocol.

Should I mention all of their inconsistencies and contradictions?

I’m willing to offer them a reasonable settlement. I was thinking twice the licence fee. The image is rights managed rather than royalty free.

I haven’t yet asked them for
• Proof of the name of the photographer who took the photo and whether the photographer who took the picture owns the copyright.
• The date when the photograph was taken
• Proof of proper copyright registration and the chain of title for the Image.
• A clear explanation as to how StockFoods has determined the valuation of this image as being so far above comparable images.
• The date they found the infringement.
• How they found the infringement.

Any help or advice would be greatly received.

Thank you.

Hi Al,
StockFood seem to be getting a bit of a common factor here. I agree that their letter and invoice appear to be lacking detail. But that doesn't automatically mean they should be disregarded. Unfortunately for you, the agency has the law on its side, and so unless the discrepancies seriously undermine their case, it may not help you to defend the claim.

StockFood is a member of the trade body BAPLA and so it is expected to operate to the Association's code of ethics. Paragraph nine of that code says:

9. attempt to secure appropriate compensation should an image be used without permission, be lost or damaged;

and so it is a matter of whether you think that their demands are 'appropriate'. Based on what you have told us, £2700 is wholly disproportionate for the use you say has been made of this one image. This sort of 'pay now or pay a higher fee later' demand is totally incompatible with the way the law works in civil matters, where there is rarely any element of 'punishment' in the remedies awarded by the court.

And no, on the face of it their second letter does not appear to meet the requirements of the pre-action protocol. However I wouldn't hold out much hope that the apparent inconsistencies over VAT and the like will undermine their case. At this stage it is best to concentrate on the central issue. If there is some doubt about who is the photographer, and indeed if it is possible there are two different but similar photographs being licensed by different picture agencies, then that is certainly something which could work in your favour. They need to provide some evidence that the photographer they represent actually was the author of the disputed image. And again from what you have told us you appear to liable for secondary infringement, namely possessing or dealing with infringing copy. The law says this about secondary infringement:

23 Secondary infringement: possessing or dealing with infringing copy.

The copyright in a work is infringed by a person who, without the licence of the copyright owner—

• (a) possesses in the course of a business,
  
  (b) sells or lets for hire, or offers or exposes for sale or hire,
  
  (c) in the course of a business exhibits in public or distributes, or
  
  (d) distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,

an article which is, and which he knows or has reason to believe is, an infringing copy of the work.

Note that here (unlike section 97) the matter turns on whether you believed this was an infringing copy. Clearly you didn't because it was supplied in good faith by a third party, the recipe company. Depending on what warranty was provided by that third party, you may thus be able to claim that you relied on an implied licence provided by that company, and so you would not be liable to pay damages, and all that StockFood can ask for is removal of the image from you site. But while these arguments may be of use if the matter gets to court, I suspect that StockFood will be unlikely to reduce or waive their demand, but it may be worth a try. At this stage it is somewhat like a game of poker, seeing who will fold first.

I think it is probable that StockFood have been successful in court, using the Small Claims track of the IPEC. I have spoken to the listings clerk and he tells me they have had several cases there in the past although he doesn't get involved in the trials or events following it. The success of some or all of these claims could be because the defendant(s) failed to attend or defend the claim and thus StockFood would have been awarded default judgment. This means that their claims and expenses would have been largely unchallenged, other than ensuring that they met the basic practice direction criteria. And of course we are not told what figure was agreed for damages. My experience within the small claims court is that although the judge (there are currently 3 district judges who sit the small claims court) will have done her best to probe the figure claimed in damages, ultimately without a defendant, a proper challenge will not have been available to the court. Since there have been several claims involving StockFood as the claimant, it is hard to say which case they may have been referring to. Obviously there may have been some opposed cases where they were less successful in getting the full amount claimed. The judgments (or more likely in unopposed cases, the Order of the court) of the small claims court are not published, but you can obtain a copy by writing to the court. There is a fee of £10 for this service and you need to know the full details of the case. You could try asking StockFood for this information, but of course they are not required to provide it. However where these are unopposed cases, there is very little point in doing so because the Order will only detail the damages and costs ordered by the court, with no detail of what was claimed or the circumstances of the infringment.

If you do end up being sued then it is not as daunting as it may seem. Apart from your own expenses (say travel to the court and any loss of earnings) you do not stand to lose any more than has already been demanded of you, other than the court fee, and if you feel you have a good defence, perhaps based on secondary infringement, either no damages, or substantially less damages, may be awarded. In the meantime you may think it was worth trying arbitration. This still has costs associated with it but if you propose this and StockFood decline to take part, that is a point in your favour if the matter goes to court.

Hi Andy

Thank you for taking the time to type such a detailed response.

Having looked into pre court action protocol their letter doesn't even come close to containing what it should.

I've found on another forum a very detailed process of dealing with a claimant who isn't following pre court action protocol correctly. The process deals with private parking charges but can be easily adapted to this case.

As they have given me such a short deadline with the threat of court action, (which they may or may not go through with, I don't want to take the risk that they will without me responding), I'm thinking of replying pointing out that they haven't followed protocol and that they need to before I can give an informed response. This should give me a little breathing space and will look good if it goes to court that I have followed procedures and they haven't.

I don't think the individual who is corresponding with me really knows what they are doing. Their work is very sloppy, and is full of mistakes and contradictions.

With regard to secondary infringement on my original receipt from the subscription it says:

'Launch Offer Platinum Membership
MAXIMUM RETURN ON YOUR INVESTMENT! Sell the nutrition plans as your own! STAY AHEAD OF YOUR COMPETITION SELL THEM AS WEEKLY PLANS OR AS 6 INDIVIDUAL COOKBOOKS A YEAR UNIQUE, LIMITLESS, MONTHLY RECIPE PACK APPLY YOUR OWN NAME & BRAND PLUS A LICENCE TO SELL'

I have been to internet archive website and taken screenshots of the recipe web site from around the date I subscribed and it quite clearly states you can rebrand, sell and use the recipes on your web site.

I also messaged the web site owner after receiving the first email. She informed me that they had an extended license to pass images on to their subscribers which is what I'd been led to believe all along. I also have screenshots of this conversation.

Hi Al,

I just received a similar letter yesterday from Stock Food and came across this forum. In my case a webmaster just put a picture with copyright on our website and we didn't know anything about it. I was just wondering if you managed to solve your case or if you have to pay the money they were asking for? In our case the are asking us to pay £689.

I would appreciate any help.

Thanks a lot.