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Origin: http://www.epuk.org/Opinion/994/stolen-photographs-what-to-do

Stolen photographs what to do?

Your copyright, what you are entitled to claim from an infringer, and how to assemble
and present a claim, are all discussed in detail here.
Author Simon Crofts is a professional photographer and EPUK member. He studied
law at Oxford University, and subsequently worked for ten years as a corporate
finance lawyer at leading international law firm Linklaters in London and Moscow
before he became a photographer.
This article is intended as
a discussion piece to stir
debate, and to help
photographers avoid
pitfalls in the period
before they go to see their
lawyer. It should not be
relied upon as legal
advice, and is no
substitute for obtaining
independent legal advice
on the specific merits and
conduct of your own claim
Photo David Hoffman

Use it or lose it
Copyright protection for photographs in the UK has historically been feeble, at least compared
to the US where photographers have heavy legal weapons available to them, including eyewatering levels of statutory damages for registered photos. The US, with the economic

importance of Silicon Valley and Hollywood, has always taken IP seriously, while in the UK
intellectual property has traditionally been a poor third cousin. Damages for photographers in
the UK for breach of copyright have become so low that photographers often believe that
breaches are scarcely worth pursuing (often they are right), and copyright abuse has become
systematic and rampant. In this situation, photographers should not be ashamed to use
whatever rights they do have to protect their property wherever possible.
Recently, there has been a ray of hope for photographers in the form of effective image
recognition capabilities in the Google image search engine. Picscout and Tineye also offer ways
to find where a specific image is being published on the internet. But this tool has limited value
for photographers unless they are able to claim reasonable levels of damages for the image
thefts that it reveals.
One of the reasons for the extremely low value of damages typically recovered by
photographers is a popular belief, not only among infringers but even among photographers
themselves, that the amount that infringers have to pay if caught will only be the same as if
they'd asked permission to publish in the first place. Publishers may not see any incentive to
seek permission in advance. The chances are (though this is changing with tools like Google
image recognition) they won't be caught and damages would be minimal anyway, so why
bother?
A good IP lawyer will be able to advise about your options, but the great majority of claims will
have no professional help and it is therefore very important that the photographer has some
idea of what their rights are in order to assess how much to claim for an infringement and
whether it is worth going to court or speaking to a lawyer.
UK copyright law is not in fact quite as emasculated as it may seem. But there is a danger that
legal rights become atrophied through lack of use. The courts become unused to awarding
substantial damages for breach of copyright, and this becomes the market norm.
As a photographer the first contact that you have with an infringer is very important it sets the
expectations for the amount of the claim, and if done badly it can severely limit your options
before you have had a chance to get any legal advice. The second part of this article makes
some suggestions about that all-important initial correspondence.

Playing conkers with that old chestnut - the starting point for
damages
First, turning to that idea that photographers are only entitled to claim what they would have
charged if they had been asked to issue a licence in the first place. There is an element of truth
in it, it is indeed the starting point for calculating damages - but it is only a starting point. The
first purpose of damages is, so far as possible, to put the photographer as closely as possible in
the position as if the breach had not happened. Of course that is not possible - the breach did
happen, so the law instead first of all tries to evaluate the amount of financial loss suffered, and
compensates accordingly, putting the photographer financially in the same position as if the
breach had not happened. The usual way to do this is to work out how much you would have
charged for such a licence. But the law often goes beyond this purely compensatory approach,
and awards additional, or even punitive, damages.

When establishing the basic level of damages don't feel that you have to accept the infringer's
declared 'standard payments'; your own reasonable charges ought to be a better guide.
Because the publisher has infringed copyright, and didn't give you the chance to offer terms,
they are in a weak position to argue with your pricing. But it is essential to have objective
evidence that your own pricing is genuine. This does not have to be generic stock pricing the
question is how much would you have charged this particular person for the specific use of that
particular image.
Gather all the information you can; what you have charged in the past, what large stock
agencies charge in their pricing calculators, look at NUJ rates and recommended rates of other
organisations, evidence of what other photographers have charged in similar cases, what
makes this particular image valuable and unique, and so on. Not all images are equal so none
of these sources is likely to be definitive, but the more evidence that you can draw to show that
your claimed price is genuine and reasonable, the better. Since the other party is the infringer,
courts are likely to be sympathetic to your valuation provided you can reasonably justify it.
It may be that you would not have wanted to issue a licence at all to that particular infringer
(such as an organisation whose aims you strongly disagree with) or for a particular kind of use,
and that would be an argument to increase the level of compensation.

Claiming more
Once you have worked out the cost of a licence you should be looking at whether to claim
additional damages. For most business infringements at least, for reasons I talk about below,
you should normally claim these as a matter of course, unless there are genuine mitigating
circumstances. Even if you prefer to settle quickly for a lower sum without going to a solicitor or
going to court, making the infringer aware of the potential consequences of taking matters
further can encourage them to come to terms.
To a very large extent the court has discretion as to which of these additional sums, if any, it
might award, so it is important to be seen to be behaving reasonably, to show that you are a
victim rather than an aggressor, in order to keep the sympathy of the court. You are extremely
unlikely to be awarded ALL of the following amounts, especially where they overlap or where
you have already taken them into account in calculating the licence fee element, and you are
probably just going to annoy the court for being unreasonable if you try, but very often a court
should be awarding one or more - or several - of them, so identify which are most appropriate to
your case and concentrate on those. That does not mean that you shouldn't claim sums that
you are entitled to, but evaluate your claim objectively and behave - and be seen to behave
reasonably. You should also bear in mind the possible amount of additional damages if you are
thinking of making an early settlement offer. In any case, take care to draw attention to facts
that make the infringement particularly reprehensible:

Flagrancy - This is one of the most important. The courts can award such additional
damages as they think the justice of the case requires if the breach was flagrant1.
Your correspondence should from the start draw attention to any circumstances that
make the breach a particularly bad one. There is a good argument that most uses by a
business will automatically be 'flagrant', unless there are special mitigating
circumstances - see the next bullet point for why.

Flagrancy and criminality - If the image was used by a business, where the infringer
knew or ought to have known that the image was protected by copyright2, then they have
committed a criminal offence3 punishable by up to two years in prison and/or a fine4.
This is the criminal offence commonly known as copyright theft. It is distinct from the
criminal offence known as piracy, which involves dealing in physical articles such as
pirated DVDs. Copyright theft is also a separate crime from, and should not be confused
with, theft within the meaning of the Theft Act 1968.
While photographers are not in the business of locking people up, and trying to prove a
criminal offence is inherently unrewarding for a private individual, it should be hard for
the infringer to argue that a copyright breach that would be a criminal offence is
not flagrant. So, with a business infringer you should normally be claiming additional
damages for flagrancy as a matter of course, and it is worth pointing out the criminal
offence provisions to the court should the case get that far.

Benefit to the infringer - Have a look at what the infringer got out of use of the image. If
you can show that there was a particular benefit to them from using the image, then the
court has power to award additional damages5. If there have been actual substantial
profits arising from using the image then see the next point.

Accounting for profit. The law entitles the photographer to make an election between
making a claim based on the notional licence fee as I have described above, or one
based on profits that the infringer made out of use of the image (an "account for profits").
You have the right during court proceedings to require the infringer to make an Island v
Tring disclosure6 which involves a process of providing all the records and accounts
associated with the use of your photos to allow you to establish how much the profit was
and whether you would like to elect for the account for profits procedure.
Of course, this is getting into serious legal fees territory, and if you are trying to keep the
claim simple and within the small claims track a claim for profits would certainly push the
case outside that system. But even the thought of having to go through this procedure
and the potential claim it may lead to could make a profitable infringer quail, and in some
cases it might greatly increase the amount of damages that you are entitled to. It does
no harm to remind the infringer that you may have the right to make this election,
especially if the image was used in a highly commercial way that brought quantifiable
profits to the publisher. If youre feeling adventurous it might even be worth thinking of
doing this in the case of, say, an especially profitable newspaper or magazine - in theory
at least it may be possible to claim a proportion of profits for that issue. This is probably
not going to be relevant to most infringements, but for any use that seems particularly
profitable for the infringer it may be worth at least thinking about it. Ask your lawyer!

Picture credit - Where the infringer hasn't given a picture credit, you may be entitled to
additional damages, for 'breach of statutory duty'7. Apart from anything else, use of the
image without a credit makes it more likely that the image will be orphaned or taken by
other infringers, particularly if accompanied by metadata stripping (see below). Failure to
provide a credit is also evidence of flagrancy.
However, in the UK moral rights, such as the right to a picture credit, need to be
asserted. To avoid any argument it is best to ensure that when images are distributed a
suitable statement is made either alongside the image or in metadata, or both, asserting
moral rights. Even if you haven't asserted you might be able to claim if you can argue
that you were given no opportunity to assert your moral rights by the infringer.

One way to avoid such discussions and to quantify the amount payable is to argue that
the fee that you would have charged for use of your image without a credit would be
higher than you would charge if there had been a credit, and to adjust your fee
accordingly. It may even be the case that you would not allow use of your image at all
without a picture credit, in which case your damages could take account of that. As
always, you would need to support such an assertion with evidence.

Moral prejudice this is a new one that originated from EU law. When awarding
damages, the court can take account of any moral prejudice caused to the
photographer, even if there is no economic loss associated with it8. This is potentially a
very flexible concept. But perhaps one example might be if an infringer has taken an
image that you only intended for use for private, or artistic, purposes, and has used it
commercially.

Consequential losses If the infringers unauthorised use has opened up the image to
theft by other users for example has put the image on the internet without any data
identifying you as the author, exposing the image to further theft and the potential
orphaning of the work then there is at least a possibility that you may be able to claim
such consequential losses from the infringer. This might be especially useful where the
third parties are difficult to pursue directly, eg they are abroad, or are fly-by-nights, or are
multiple blogs not worth pursuing individually. The infringer may argue that the
secondary infringers intervening act in stealing the image a second time has broken the
chain of causation, in other words that they are not responsible for the acts of third
parties. But depending on the circumstances, there may be arguments against this.
A more straightforward way to deal with this is to argue that the increased risk of theft by
third parties should be taken into account in the fee that you would charge for use of the
image in the first place. Alternatively you may argue that if the infringer has opened you
up to greater risk of theft from third parties, that this aggravates the seriousness of their
breach and should be taken into account, for example in calculating damages for
flagrancy or for moral prejudice.

Metadata - If you become aware that someone has stripped metadata from your image
you are entitled to act as if the stripping of metadata was a breach of copyright and claim
damages accordingly9. If the infringer has also used your image without permission this
may not increase your damages further since you cant claim for the same loss twice
(double dipping), but it is worth bearing in mind where a user who does have a licence
strips metadata, that they may be liable for the consequences of metadata stripping (eg.
orphaning of the image). In addition, metadata stripping may help to establish or
increase damages for flagrancy (see the first bullet point above).

Derogatory treatment - If the work has been subject to 'derogatory treatment' then you
may be entitled to additional damages for that based on damage to your goodwill and
reputation.

Devaluing the image - Certain kinds of uses may decrease the value of the image for
use by other clients, and your claim for damages may reflect this if you can show it. For
example, it may mean that the image can no longer be offered to clients for exclusive
use, or it may conflict with use by a potential client and lead to lost sales. If you have
evidence that this may be the case, then that may be used to increase the damages
award. For example, in a 2010 case Experience Hendrix vs The Times Newspapers the

Chancery Division awarded $5.8 million damages when The Times issued a cover CD
distributed with their paper that damaged the plaintiffs market for release of their CD.
The same logic can apply to your photograph if the infringer's use has damaged the
market for it. Note however that the economics of this may be taken account of in
calculating the notional fee that you would have charged, and you can't 'double dip'. This
is effectively an alternative way of calculating damages to the licence fee approach.

The internet - If the infringer argues that market rates for web use are low you might
argue back that web use gives extremely wide access to the image, increasing the risk
of image theft and orphaning and so should attract higher fees. It might be the case that
you simply wouldn't allow publication of the image on the web at the low rates currently
offered and that your rates for web use, if they had asked permission in the first place,
would have been high. Since the infringer didn't ask permission they have deprived you
of the opportunity to refuse.

Costs - Of course, if you are forced to go to court you can add the costs of doing so
(lawyer's fees, court fees etc.) to your claim, and your first letter should make that clear
as a powerful incentive to settle quickly. It is a double edged sword if you do go to
court and either lose the case, or at least lose the sympathy of the court, you may end
up paying the other sides costs. So it is in everyones interests to avoid that and settle
before things go too far. Often the costs will quickly become much greater than the claim
itself. Make sure that the infringer fully understands the potential downside for them of
dragging out the dispute. You should keep records of all expenses that you incur
chasing the debt.

Delivering up you may have rights to confiscate infringing copies, though this is
unlikely to apply where your image is part of a wider publication.

Contractual damages if you have an arrangement with the infringer, for example,
they are a client who has used your images in an unauthorised way, you may also be
able to claim damages on a contractual basis. Your standard contractual terms, if well
written, might for example impose liability for consequential losses such as third party
usage resulting from orphaning of an image. The breach of contract is also likely to be
simultaneously a breach of copyright, so many of the heads of damages discussed
above will also be relevant.
Even if you don't intend to demand the full sums you are entitled to, or you want to
maintain a good relationship with the infringer (eg if they are also a client), or you are
happy to agree a quick and low settlement to save time and trouble, it doesn't hurt to
protect your position and look professional by making the other person aware that you
might be entitled to claim substantially more than in a settlement offer. Emphasise that
you are being helpful and reasonable by allowing settlement for a lesser sum. The initial
correspondence is extremely important in establishing the potential downside to the
infringer.

Corresponding with an infringer

The problem for photographers often begins with that first letter of demand, most likely written
without the help of a lawyer. It sets the tone for what is to follow. Since the photographer may

often suspect that the infringement may not be worth pursuing beyond this, the temptation is to
ask for very little in the hope that the infringer will cough up quickly and they can move on. The
infringer, thinking that the claim will be a small one not worth the photographer pursuing,
typically comes back with an even more derisory offer, and the photographer either settles for
that or makes a half-hearted attempt to push a compromise. The chances are that the infringer
will end up paying less than if they'd asked for a licence in the first place.
Even if the photographer does have the stamina to go to a lawyer, the lawyer may have his
hands tied by the valuation put on the infringement in that first letter of demand. Unless you
have marked that letter without prejudice the infringer may use your offer as evidence against
you as to the amount you believe your damages to be. It may severely limit the possibility of
claiming the kind of additional damages I discussed in the first part of this article.
By this stage the exchange of correspondence may have shown the infringer to be more
culpable than first thought, or more difficult to deal with. The photographer might even regret
having been too generous or conciliatory in the first offer. Or, on the contrary, it may have
shown that the infringer had a reasonable excuse.
Photographers are often in a stronger position than they think. I have argued in the first part of
this article that photographers should often be claiming additional damages unless there are
particular reasons not to. Even if there is no real desire to go to court it is important to make
infringers aware that you have the right to do so.
I would suggest not firing all your cannons in the first letter. This letter should point out the
infringement and try to elicit further information from the infringer. It should be firm but not
confrontational. Their response to the first letter might range from contrition accompanied by full
cooperation and offer of payment, or a valid explanation of how they obtained and used the
image (eg. your agent licensed it to them), to blank denial and abuse. The amount you want to
claim, and how aggressive or conciliatory - your follow up is, will depend on their response.
You should keep your end of the correspondence professional and polite at all times while
emphasising the strengths of your case. And to prevent anything you say being used against
you, always mark all correspondence "Without Prejudice Save as to Costs" especially if it
contains a settlement offer.
Once you have more information, or the infringer has failed to reply, then you have the choice of
building your claim with the next letter, possibly making a "without prejudice" offer of settlement,
or going to see a lawyer. You must make the infringer aware not only that they may be paying
considerably more if you have to take it further, but also that you are serious and that you know
what you are doing.

Samples
The following examples are not intended to be used literally, they are more of a checklist of the
kinds of things that you might include in that first correspondence to establish your position.
They will need modifying to your own situation. With the possible exception of the first letter
however, I would suggest always including at the top of the letter the magic words
"Without prejudice save as to costs", particularly if you are making a settlement offer. If
the first letter includes any kind of suggested pricing or settlement offer, however, the words
should go at the top of that letter too.

First Letter

Dear X

It has come to my attention that you have used my image [describe image and the usage].
I do not have any record of having issued you with a licence to use this image. I would be
grateful if you would provide me with any evidence that you have been issued with a
licence by myself [or my agent] for such use.
Subject to that, as it appears that you have breached my copyright I require you to
provide me with information about where you sourced the image, the length of time that
you have used the image, and any other usages that you may have made of that, or any
other image that you may have reason to believe may be mine.
[Unless you have a licence from me/my agent for use of the image] I require you to
remove the image immediately, and will be requiring payment for use of the image to
date. [If you would like to make use of the image for the future, any such future use
would only be permitted subject to negotiation with me of a separate additional licence
and payment of a licence fee at my rates.]
Yours faithfully

Second letter - a grumpy one

Letter to be used for a flagrant breach, and includes a settlement offer, which you may or may
not want to make. The letter is just a starting point and needs modifying for each particular case.
If there are mitigating circumstances, it would be more appropriate to send a 'softer' letter.

Dear X
Without Prejudice Save as to Costs
Further to your reply of [ ], I was extremely disappointed to see my image used in this
way. This was a particularly flagrant breach of my copyright because [ ]. [list any
factors that make the breach more flagrant eg. if they were warned not to use the image
in this way, or if it would have been easy for them to find out who the copyright owner
was, or if they're using a private photo without model release in a commercial context].

[You ought to have known that the image would be protected by copyright, and use of
my image in this way by you in the course of your business would be a criminal offence
under S.107(2A) of the Copyright Act 1988, punishable by up to two years in prison
and/or a fine. [Include this wording if the infringer used the image in the course of a
business and ought to have known the image was protected by copyright.]]
[In addition, there was no attribution (picture credit) of my image to me. Unauthorised
use of the image in this way devalues the value of the image for myself and my clients.
Use on the internet, especially where unattributed, is especially damaging as it presents
further opportunities to third parties to infringe my images, and increases the risk that the
image may become orphaned.]
If I have to take this matter further, I may be entitled to claim damages not only for the
direct losses caused by your infringement, such as my loss of license fee, but also for one
or more of the following:

I am entitled by law to additional damages where the breach is flagrant or where

you have gained a benefit from using the image.

I may elect to require an account of profits from your use of the image, and may
require you to carry out disclosure of the full amount of profits derived from use
of my image. This may include my claiming a share in the total profits from the
sale of any edition in which my image appeared.

I am entitled to further damages for failure to credit my image to me: for breach
of statutory duty under S.103 of the Copyright, Designs and Patents Act.

[Describe any derogatory treatment of the work, which may entitle you to further
damages.]

I may be entitled to additional damages for 'moral prejudice' under S.3(2)(a)(ii),

The Intellectual Property (Enforcement, etc) Regulations 2006.

I may be entitled to claim from you any additional losses caused to me which
results from your breach, for example if my image becomes orphaned due to
your actions.

If I have to take this claim further, the costs of lawyers' fees, court fees, and other
expenses will also be added to the cost of the claim.

The foregoing list is not exhaustive, and I reserve my right to claim for additional heads
of damage. I would strongly urge you to consult a solicitor in relation to this claim.
In the interests of resolving this matter quickly for both of us I am, at this stage,
willing to make a without prejudice offer to waive my rights to damages from you
with respect to your breach for a payment of [ ], provided that you accept this offer
in writing within the next [7] days and provided that such sum is received on my
account within the next [14] days.

This offer applies with respect only to your breach of copyright and usage of my image as
described in my letter to you of [refer to first letter], and does not in any way imply
waiver or consent regarding any additional usage or use of any other image or any breach
by any other person. This offer is made on condition that you have disclosed all material
facts to me in relation to your breach of my copyright.
This offer applies to settlement of your breach of copyright for this image until the date
of expiry of the offer, and assumes that you remove the offending copy of the image
forthwith. No consent to future or continuing use of the image is implied in the foregoing
offer. Should you wish to continue use of the image, then that would be subject to
separate negotiation and agreement.
Should I not receive notification of acceptance of this offer within the period described
above I shall pass the matter to be dealt with by my solicitors and/or debt collection
agents, and additional costs will be incurred which I shall recover from you.
Yours sincerely/faithfully

S.97(2) Copyright Designs and Patents Act 1988 (the Copyright Act) The court may in an action for
infringement of copyright having regard to all the circumstances, and in particular to
(a) the flagrancy of the infringement
award such additional damages as the justice of the case may require
2

Many infringers will no doubt plead that they did not know the identity of the owner of the copyright or could not
find the copyright owner. But that is no defence. There is only a defence if they had reason to believe that there was
no copyright over the work eg. that more than 70 years had passed since the death of the author, or that the author
had renounced copyright.

S.107(2A) Copyright Act: A person who infringes copyright in a work by communicating the work to the public
(a) in the course of a business, or
(b) otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,
commits an offence if he knows or has reason to believe that, by doing so, he is infringing copyright in that work
4

S.107(4A) Copyright Act

S.97(2) Copyright Act The court may in an action for infringement of copyright having regard to all the

circumstances, and in particular to

(b) any benefit accruing to the defendant by reason of the infringement,
award such additional damages as the justice of the case may require
Also, see S.3(2)(a)(i), The Intellectual Property (Enforcement, etc.) Regulations 2006: When awarding such
damages(a) all appropriate aspects shall be taken into account, including in particular(i) the negative economic

consequences, including any lost profits, which the claimant has suffered, and any unfair profits made by the
defendant
6

Island Records Limited v Tring International PLC [1995] EWHC 8 (Ch)

S.103, Copyright Act

S.3(2)(a)(ii), The Intellectual Property (Enforcement, etc.) Regulations 2006:

When awarding such damages
(a) all appropriate aspects shall be taken into account, including in particular
...
(ii)elements other than economic factors, including the moral prejudice caused to the claimant by the infringement

S.296ZG(4), Copyright Act