Copyright Aid

Hi,

I have recently come across copyright infringement of a product image that I took myself, and my partner edited to make "website worthy". I was actually updating my email address on eBay, where I have a few listings for wooden items that we machine and sell. The photos I have on eBay are the very first product images I took several years ago. A couple of years after creating those eBay listings I revamped my website and in the process took some new product images, so basically my eBay listing still has the old images, my website the newer ones for approximately 5 years or so.

Though I don't rely too much on eBay for sales anymore, out of curiosity I did a search for one of the keywords that I'd expect to place fairly high for. After scrolling a couple of listings a different listing to mine caught my eye. The reason being that the company in question are using the product images from my website (or maybe from my saved images on Pinterest and the like). I clicked on the listing and they're using 3 of the images from my website on their listing.

The images themselves aren't overly complicated (they're not exactly intricate works of art) as they're basically machined wood with slightly different shapes that a customer can choose from. However, I'm pretty annoyed that the company in question has used my time and money in creating these for my own website to basically compete against me for the same type of product. This then brings questions such as...

Have customers viewed my website when "window shopping", decided to eventually buy having compared different websites and maybe bought through the competitors eBay listing? If they have then have they thought they were buying from the same company due to the same images, though my company doesn't get the sale?

Have the images themselves influenced their company achieving sales over others on eBay?

Has my company lost sales and their company benefitted from using my images against me?

Having used eBay for selling items a fair bit over the years I know that the "Number Sold" area of an eBay listing that can be publicly viewed isn't a true reflection of the actual number of sales. In fact in my experience the number is possibly 4x higher in reality. Their current publicly viewable sales figure is 480 which I would presume is a very conservative estimate. I'd also guess that their average sale is around £130 which if based on my own sales figures would have have an approximate 30% profit margin.

I was just hoping for a bit of advice regarding this. It did briefly cross my mind to call the company and ask to take the images down. However, I don't thing that's a fair outcome, having spent time and money creating the images for the purpose of generating sales for my company, not theirs. Would contacting a solicitor be the recommendation? Should I write a letter/email with a request for compensation without going down the route of solicitors? If I did then what sort of basis would I use for working out a likely and fair compensation figure per image?

Thanks for any advice with this.
J

Hi J,

Where infringement of copyright can be proved, the claimant can opt for one of two remedies: either damages or an account of profits. Damages means the value that you have lost by the taking of the image without permission, typically what the licence fee might have been if the other person had asked for permisssion to use your image(s). An account of profits is based on the actual profit the other person has made from the unauthorised use of your imnage, so in this case, the profit he/she has made on the sales using your image. Bear in mind that with an account of profits you would need to show that the sales of his products rely wholly or in large part from the use of your image, and that 'profit' would mean his net profit. For an example of how this works in practice, see this court case from a few years ago: Absolute Lofts South West London Ltd v Artisan Home Improvements Ltd.

As for whether you need to consult a solicitor, it depends on how confident you are about starting your own claim, which might ultimately lead to the small claims court of the Intellectual Property Enterprise Court (Guidance Notes here). An initial solicitor's letter will cost something between £75 - 150, but if they are going to handle the whole matter, perhaps including the litigation in court, the costs could run into the thousands, so you need to be sure that the amount you stand gain makes that expense worthwhile as you cannot re-coup your legal expenses from the other person even if you are successful in court. You should be able to get a free 20 minute consultation with a solicitor during which you can get more details of the likely costs involved, before committing yourself. Make sure you find a solicitor who deals in intellectual property law. You can do this via the Law Society's website, by selecting Media, IT and Intellectual Property from the list under 'Your Legal Issue' Find a Solicitor.