Copyright Aid

Hi all,

Please excuse my ignorance but when starting out a self employed photographer in 2009 I was rather green to say the least.

My issue is this. I was commissioned to shoot food photography by a design agency who were creating a website and delivering the content for a high end Michelin restaurant in London. I produced and supplied the imagery over many shoots within the first 2 years (say 2009 - 2011). My client (The design agency) was invoiced by me for the commissions. I did not state any usage terms on my invoice, nor did i supply a separate licence.

6 years on and the restaurant are still using all my images on 2 restaurant websites and weekly news emailers.

I do not work with the agency anymore, and the restaurant use someone else for the photography also.

I contacted the restaurant owner to politely explain that although they have had several years of free use of the images since initial commission, if they wanted to carry on using my images going forwards they would have to agree new licence terms or cease using them.

They have advised that they feel they can continue using the images with no additional costs as nothing was stated at the time of invoice, and the images were also supplied via the design agency?

I am ware that I probably have no case for claiming old usage fees, but do I have the power to stop them using them in future without my permission (as I own the copyright to the images)

Any advise would be very much appreciated.

Kind regards,

Simon.

Hi Simon,

Since there was no licence accompanying the initial delivery of your photographs to the agency as per the commission, a court would try to discern what the parties meant to happen in the context of normal conventions which prevailed in that sector at that time. So for example it can immediately be implied from your acceptance of the commission that you were licensing the agency to use the images, and by extension if you did the shoot in the restaurant or using dishes prepared by them, it can be assumed that you knew the ultimate end user of the images. From these basic assumptions it is hard to say what other terms might be implied, for instance about how the images might be used (press advertising, fliers, promotions, supplied free to illustrate review articles etc) or the term of the licence, as this would really depend on what you were told at the time. Did the agency put the commission in writing, either at the brief stage or during the shoot stage prior to delivery of the images for approval? If so there may be something there from which the possible term of the licence can be implied. But in the absence of anything like that I think a court might well conclude that you and the agency intended the licence to last for as long as the restaurant need the images for - in other words the position which the restaurant is taking at the moment - otherwise a lesser term would have been expressly stipulated.

Another factor which may point towards the expanse of the intended licence could be the amount you were paid for the job and how that relates to the industry rates which applied at the time. So say the 'standard' going rate for the job can be shown to be £300 to include a licence allowing multiple media and an indeterminate period, but you were only paid £150, a court might be persuaded that the lower amount reflected a more restricted licence. We have to assume that the quality of your work was not an issue because the agency accepted the work and the restaurant seems happy to still use the images after 6 years. But that argument would be somewhat hard to support if the agency could show that you accepted other jobs for similar money but where the licence was demonstrably more extensive.

And the other thing to note is that this is a contractual issue between you and the agency and not between you and the restaurant. If you tried to sue the restaurant it could only be for copyright infringement and not breach of contract, and I think they would have a strong case for saying that they believed in good faith that there was an open ended licence which attached to the deal they had with the agency. That would tend to conform to standard business practice for this sort of thing. Indeed if the agency had been operating for some time and weren't as inexperienced as you were at the time, they may well have provided the restaurant with written terms and conditions which covered aspects such as this. And assuming that the court accepted the restaurant's argument, whilst also agreeing with you that the licence had ended, the restaurant would not be liable for infringement since they were not primary infringers, but instead were acting on a false authority provided to them by the agency, meaning that they had no reason to believe the images were infringing copies (see section 23 of the Copyright Designs and Patents Act 1988).

On balance I think you may need to walk away and chalk this up to experience. From a strictly business point of view it may not be worth your while to pursue it, given that you would probably need some proper legal advice and representation in court if you went down that route - expenses which you cannot reclaim even if you win, assuming this went to the small claims track of the IPEC, and as you say, the court would only consider damages which cover the period after the implied licence might be found to have ended.

Hi Andy,

Thanks very much for all this. I really appreciate the time you have gone to, to explain it from both sides. Good advise! It does make sense and I guess I also thought the same really. Just have to bite the bullet and let this one go

So as to make sure I am covered for future issues, I now have my Terms and Conditions on my website, which state a timeframe in there for image use:

License to Use is limited to Twelve Months (1 Year) unless a longer term has been negotiated and agreed upon in writing by the Photographer. When the License to Use has expired the Photographs must be returned to the Photographer in good condition within 30 days and any archived digital files destroyed.

I also have the following statement printed as a foot note on all my estimates, statements and invoices. Also as a footnote on my image delivery system where clients download the images:

Images are supplied under Licence in accordance with our Terms and Conditions of Business, available on our website simon harvey photography dot com. All Imagery supplied is the Copyright of Simon Harvey Photography Ltd.


Do you think this covers me in the correct way or do i need to include the terms of use in writing on each invoice per job???

Thanks again for your help!!

Kind regards,

Simon.[/i]

Hi Simon,
I recommend also putting your full terms and conditions on the backside of any estimates, invoices and licences which you send out as that keeps the two things together (rather than your clients having to go to your website to tie-in with a piece of paper). Obviously for email correspondence a link to your online t&cs makes perfect sense. As people are notorious for not reading t&cs, drawing special attention to the duration of your licence as you outline also makes sense and may avoid misunderstandings.

As for what you need to include, I have always found the Association of Photographers standard business terms a useful template. You can download them here, along with a host of other useful documents. I can also highly recommend their book Beyond the Lens which is available, as an ebook or hardcopy, from their website. Although it sounds like a photography manual, it's actually a manual on how to run a photography business.