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How I used the small claims track to pursue copyright infringement

by Darren

Amateur Photographer reported on Wednesday that intellectual property disputes can now be resolved via the Small Claims track of the County Courts.  Previously photographers who had been infringed were obliged to go through the full claims process which was time consuming, costly and laden with risk, especially when up against someone with deep pockets such as a national newspaper.

Time and time again on the Photolegal podcast we heard of examples where a newspaper had infringed and then when the photographer approached for a fee, the picture editor had dictated derisory terms with a ‘take it or leave it’ approach.

Following a trip to Bonaire earlier this year I approached a magazine with a proposal to write a feature about sleeping parrotfish – I’ll blog one or two of the pictures next week but in summary the parrotfish surround themselves with a cocoon (effectively a sleeping bag) of their own mucas at night to protect them from predators.  Not having room for features at that time, the editor asked to see some of the pictures and whatever else I had from Bonaire that might be interesting.  I sent over low resolution unwatermarked images including the one above of Louise inspecting a brand new coral conservation project.  The editor specifically asked for low res, and said she’d revert for high res if the images were to be used.

A discussion ensued, reasons given for why the parrotfish images weren’t suitable and the conversation petered out.  Then I opened an edition of the magazine a couple of months later to find my image had been used as a half page.

It’s always important to remain calm and professional in these situations so I promptly emailed the advertising department of the magazine to check circulation, then generated a price (£183) using FotoQuote software.  I emailed the editor to say I was delighted that she’d managed to find a spot for the image and attached my invoice for the usage.

“But I didn’t realise you wanted to be paid for it.” “I don’t have a budget for that section.”  I resisted the excuses (her budget is irrelevant to me) and pointed out that the approach was clearly a professional one, that the metadata clearly identified the images as All Rights Reserved, and reminded her that in the earlier conversation she’d promised to revert if she wanted to use the image (it’s obvious that the best point to agree terms is once they’ve decided they want the pictures).  The Publisher then got involved and was aggressive from the start.  A quick search of his name and I find out he’s a former national newspaper hack.  Eventually he proffers fifty quid as a ‘final offer’.

I called my Photolegal co-host James Barisic who told me that as the Publisher had offered a sum, the magazine had accepted the copyright infringement element of any subsequent legal action.  This had become a dispute about price and therefore the small claims track was available.  I emailed the publisher with notice of my intention to pursue this through the courts if necessary.  Even up until this point I was prepared to negotiate on the price if he had started being reasonable, but there was no reply.

So I filled out the paperwork on Moneyclaim, the court service website that deals with the administration of small claims.  One of the things I learned when running a small business at 18 was that filling out the court paperwork and sending a copy without filing as ‘notice of intended proceedings’ works well as a final jolt to get someone to pay the bill they owe.  I filled out the details on the website, saved and printed, then sent it with a final notice letter and invoice together with copies of all correspondence (both before and after infringement).  I waited a week, nothing.  I waited a few more days.  On the tenth day I filed the claim.

Once filed the defendant is given five days grace to receive the paperwork then a further two weeks to reply.  If they reply within the two weeks and say they need more time they can get a further two weeks.  If they defend the claim then the judge can look at the paperwork and deal with it directly, or a hearing can take place when both parties present their case.  Legal costs are rarely awarded which de-risks the process when someone owes you a relatively small amount, although you do have to pay a small court fee of £25 which is added to the amount you claim from the defendant (ie: if they lose, they pay the fee, if you lose, you pay the fee).

The magazine didn’t reply.  After the two weeks are up, via the website you can file a request for judgement to be issued.  I’d read advice that being too quick to file for judgement often ended up being overturned if the defendant subsequently replied, so I gave it another couple of weeks.  Still no reply.  I filed for judgement, forgot all about it and got on a plane to Egypt to go diving.

Half way through my week in Egypt Louise emailed to say a cheque had arrived for the full amount plus the court fees.  I have no idea why they waited so long to do the right thing, but they did and that’s why I’ve decided I won’t name the magazine in this piece.  It’s more of a process piece about getting paid for an infringement than a name and shame.

The one hurdle I faced in all of this was that if the publisher hadn’t offered a token payment thus implicitly accepting that they had infringed my copyright, bringing legal proceedings would have cost thousands and involved lawyers.  Most photographers (including me) don’t have that kind of money to throw after retrieving a £180 fee.

Now that restriction has gone and we can persue reasonable fees from those who use our images without permission by filing a simple online form.  What are you waiting for?  Go get ’em!