Do I need a lawyer for an image copyright dispute?

Copyright is a recognition of the ‘creative stamp’ expended by a person in creating a piece of work and provides an automatic, unregistered right of protection which lasts for up to 70 years from the death of the owner.

Be it music, art or literary works, copyright provides a long-lasting form of protection. However, something that is lesser known by the public is that copyright work is automatically owned by the creator (unless they are an employee carrying out the work in the course of their employment, in which case it is owned by the employer) and not the individual or company instructing the work to be created. The only way copyright ownership can change hands is through an express assignment. In the absence of such an assignment, the use of the work is likely to be (where authorised) permitted through an express or implied licence. This can often be the cause of disputes, especially where the creator believes that they had only permitted the use of their work for a certain purpose and the benefitting party has other ideas (so, before we move on, please do not forget to agree these issues in writing!).

With that in mind, let’s turn our attention to image copyright. We’re often asked whether a lawyer is needed for a dispute over image copyright. It’s a sensible question to be asking for a number of reasons, and if you are considering it then one of two things are likely to have happened:

• Situation one: You are the owner of a copyright work (for example in a photo) and someone has used your photo without your permission, this use could be to make money (selling your photo) or using it in a manner you are unhappy with (putting it on an unscrupulous website). In this situation, you are what we would call a “claimant” and it is your claim that a third party is infringing your copyright.
• Situation two: You may have used an item of copyright (a photo) on your website or other business materials and someone has written to you to say that you are infringing their copyright. You may, or may not, be using the copyright work in a legitimate manner but, nonetheless, you need to respond to the copyright claim. In this situation you are a “defendant” and you are defending against the copyright claim.

Do I need a lawyer for an image copyright dispute?

Simply put, lawyers cost money (although, at Briffa, we offer a free consultation) and so whether you are a claimant or a defendant in an image copyright claim, it only makes sense to instruct a lawyer if they will add value to the claim or defence.

So how might a lawyer add value in such cases?

First and foremost, a lawyer will be able to advise you whether the claim has any legal prospect of success. For example, if you are the claimant, are you sure that you actually own the copyright in question (if you created the copyright work in your employment, then your employer may actually own the copyright)? And if you are the defendant, are there any legitimate defences to the claim, such as fair dealing?

Once the merits of the claim are established, a lawyer will then be able to advise you on the best way to deal with the issue in light of your objectives. For example, if you are a claimant and you simply want an image taken down from the internet, it may make more sense to raise the claim against the website’s host. But if you are after a compensation payment then it may be better to raise the claim against the website owner. If you are a defendant, the lawyer will be able to advise you on how to reduce your liability and swiftly resolve the issue.

Next, if you are trying to agree on an amount in compensation where you are a claimant or defendant, a lawyer will be aware of the amounts awarded by the courts for copyright infringement and so they may be able to help secure you more (or less if a defendant) of a payment.

It’s a fact of life that all good (and bad) things come to an end and so should a copyright infringement claim. The way these things usually come to an end is with a settlement agreement. If you are a defendant, a settlement agreement is important as it will release you from any legal claims being made. If you are a claimant, a settlement agreement is equally important as it will create a legal obligation on the other side to pay you the compensation and not infringe again.

Although I am probably biased, a good lawyer will be able to provide invaluable assistance in a copyright claim. This assistance is likely to result in the matter being quickly resolved and in a manner that accounts for your legal rights.

How can I avoid an image copyright claim?

Copyright does not have a ‘finders keepers’ kind of rule. Just because you found an image on the world wide web or because the alleyway next to your house has creative graffiti that you walk past daily, does not mean that you have an automatic right to use it for commercial purposes. What you will find in fact, is that you may well receive a nasty letter for using such imagery without permission. A simple mistake can quickly become very costly in such circumstances.

So, whether you are using a picture for your blog or weekly newsletter, please ensure that you have the appropriate rights to use it. However, where you have used such work and have become the recipient of a nasty legal letter, do not give in to every demand that is made. In fact, we find that a majority of the demands that are made are often irrational, excessive and not based on law.

From a legal perspective, the court will often attempt to put the aggrieved party back into a position that they would have been had the infringement not occurred. This may well be a calculation of the license fee that the other party would have charged had the infringing party sought authorisation. So, if you have received a legal letter demanding you pay up, there are various things you should consider which include:

1. Whether the other party is authorised to claim against you;
2. Whether the work benefits from copyright protection;
3. Whether the alleged infringement did indeed occur;
4. Whether the owner of the work ordinarily licences the work; and
5. What the licence fee would be had you sought permission to use the work

Armed with this information, you could be in a better position to challenge or negotiate a settlement.

Here at Briffa, we offer a free 30-minute consultation in which we can discuss any questions that you may have and ensure that you are well-placed to get things right. Get in touch using the contact form below if you would like to arrange a meeting.

This post was written by Mohammad Khan and Sam O’Toole.