Copyright Aid

We are trying to sort out how to deal with a demand we have received from Picrights and need help.
My husband is a retired actor in his late seventies who has a website which could be described as autobiographical - it is not a commercial website and generates no income and his last paid job was two years ago. A long time ago he played the role of Charlie Richardson (the Gangster) in a documentary/drama for Channel 4. He was paid a one-off fee for this and has received no payments since then. He included a link to the programme on his website and at some point a fan sent him through a photograph of Charlie R. taken on 5 August 1998, pointing out how alike they were (in looks only I hasten to add!). Without thinking about copyright he put it on his website.

On 31 October last year he received a letter from PicRights.com referring to previous correspondence which he had not received, saying he owed Reuters the sum of £435 for use of the picture. They refer to my husband as 'an Organisation' - we thought it was a scam of some kind so ignored it. We did take the picture down, however. My husband has now received a letter from Burness Paull solicitors demanding the £435.

We started looking into the whole copyright thing and realised that we should have paid for the use of the picture or not used it at all. Our searching brought us to this website and the help that people in a similar situation have sought here. As there was no breakdown of what the £435 covered other than 'it is calculated in accordance with what the licence fee would have been for your use of the image, location on line and duration', my husband contacted Reuters through their website to find out what he should have paid. They, of course, traced it back to PicRights and have refused to communicate with him, saying it is between him and Picrights.
We now have no way of knowing what would be a fair charge for the use of the picture as there appears to be no information on Reuters' websites as to charges and it all has to be done through negotiation. My husband is very distressed about this and we would be grateful for some help.

Hi jude,

Welcome to the forum. As you already know, the normal way we suggest for finding the amount for a counter-offer is to look for the image on the usual stock websites, such as Getty and Alamy. Alamy certainly have a couple of images for Charlie Richardson, and I suspect Getty does too but a quick search has failed to turn anything up, other than endless pictures of Luke Goss! If you still have a copy of the email in which the fan sent the image in the first place, it might be worth doing a reverse image search to try and locate other examples out on the internet, which in turn might lead you to a picture agency. You can use Google image search for this, or there are some other free-to-use apps such as Tineye with which to search. If you no longer have a copy of the image or nothing useful shows up in a reverse image search, I suggest finding an image of similar 'value' - say one of the Cray twins or 'Mad' Frankie Fraser - to get a sense of the typical market value of an image of that type. As an example, Alamy has an image of Frankie Fraser available for the standard editorial website licence which is set at £29.99 That's it, no annual fees.

It helps when dealing with solicitors if you can wrest back some of the initiative, and it also helps if you can demonstrate that you know something about the way the law operates and won't be bullied into just accepting their view of things. You also need to know that this claim is in large part based on bluff. As you may well have seen elsewhere on the forums, we try to look at the disadvantages faced by a claimant who insists of taking the matter to court. Even if they took you to court and you defended the claim but still lost the 'most' your husband would have to pay is the £435 in damages, plus court costs (say around £110) and the attendance expenses of the claimant ( the copyright owner) say another £120). I say 'most' because while £665 is a lot of money it represents well under half of the typical legal fees the claimant would incur in bringing the suit, and he will not be able to claim back these legal costs from your husband. Your husband does not need to be legally represented so his costs would amount to his fare to travel to court on the day. And it is not PicRights who will make the decision about going to court. It will be the copyright owner, who is probably the freelance photographer who took the photo in the first place and he certainly won't want to be landed with a huge legal bill in order that Reuters (his agents) and PicRights (their agents) can earn their fat fees.

You don't mention exactly what the firm of solicitors are alleging. However your husband has not copied the image and so if this is what they allege this, you should firmly rebut this. What he may be liable for is making the image available to the public contrary to section 20(2) of the Copyright Designs and Patents Act 1988. While this is somewhat splitting hairs, again this forms part of the poker game which is called reaching a fair settlement. Another item they might throw in the pot is that the photographer was not given a credit. However if the image was sent to your husband without a credit, there's no way your husband could have know a credit was required, and the law (section 78(4) of the CDPA) absolves him from liability since he was not issued a licence which contained an assertion of the author's right. Since the court would not award legal costs against the losing party, you should also resist any attempt by the solicitiors to add on legal or administrative costs to the existing claim.

You can find some general background to how matters would progress if it went to court, here: Guide to the Intellectual Property Enterprise Court Small Claims Track. That said, I don't think there is realistic prospect of the matter going anywhere near court, if you are prepared to fight and play a mean game of poker.

Good luck. (or should that be break a leg?)

Hi Andy
Thank you so much for your speedy and comprehensive reply. We are now going to inwardly digest all the information and decide the best way to go forward. If we may, we will come back to you if we need more help.
Once again, many thanks, we are very grateful.
Jude