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Thread started 29 Aug 2012 (Wednesday) 21:41
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Blatent Copyright infringement!

 
nigpd
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Aug 30, 2012 08:15 as a reply to  @ post 14925726 |  #16

My advice is to STOP discussing it on this and any other forum. It could prejudice your case.

Find a copyright lawyer that has experience of dealing with the world of photography and take advice from them


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whitesell
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Aug 30, 2012 09:23 as a reply to  @ nigpd's post |  #17

Since this is clearly copyright infringement, it is a legal matter - as others have said a lawyer is the key to protecting your interests and getting paid.

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Jim


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carlh
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Aug 30, 2012 09:24 |  #18

thats awful and I hope you get every penny owed.



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sspellman
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Aug 30, 2012 10:09 |  #19

The simplest answer to require payment of the original invoice before you invest in filing a lawsuit.


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Beachcomber ­ Joe
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Aug 30, 2012 12:07 |  #20

whitesell wrote in post #14925970 (external link)
Since this is clearly copyright infringement, it is a legal matter - as others have said a lawyer is the key to protecting your interests and getting paid.

While this is definitely a legal matter one could argue that it is merely a case of an unpaid debt. A contract was entered into, a service was provided, the recipient failed to pay in a timely manner. Since a value has already been set for the service, using the legal system to enforce payment is going to be the quickest path to payment.




  
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weeatmice
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Aug 30, 2012 14:01 |  #21

You may charge interest ontop of the unpaid invoice at 8%+base per year. Though you're supposed to inform the client. I'm not sure that you can apply this retrospectively, your solicitor will hopfully tell you.


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Mark0159
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Aug 30, 2012 15:28 |  #22

it's interesting that they sent the disk back. because they didn't pay their bill and sent the disk back could possibly show that they had no intentions to use the photos. This is more than just downloading a picture on a web site and using a couple of times. they have gone out and said they are not paying you, copied the photos and then sent the disk back to you and then used the photos.

they have ripped you off, pure and simple.


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tim
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Aug 30, 2012 15:49 |  #23

UK copyright laws are quite different from US laws. AFAIK there's no punative damages, no big awards, you can only claim to put you in a position you'd have been in had the violation not happened. If their use of the image devalued it, or caused you harm, you can claim for that, but I doubt that's the case. I'm not even sure you can claim collection costs. All my information is from a UK attorney I've engaged over a copyright issue I'm dealing with myself.

As there was an existing invoice for the images I think you've already set the value, and I doubt you'll get more than that. You can try your luck, but I suggest you do it via an attorney, and keep it reasonable otherwise they'll just retain their own attorney and you'll get nothing but trouble.

I can recommend London IP (external link), in particular, David. Expect to pay GBP200-400 for a couple of letter to be sent.

Don't contact them yourself. Keep screenshots, and ask the attorney or someone independent to do screenshots. Also save the content. Use a Firefox plugin like LiveHTTPHeaders when you load the site, which will tell you the date the image was put onto the web server, which will establish when the images were used from. If you're not technical enough to do that privately contact me with a link to the website, and a direct link to a few of the photos in question and I'll do it for you.


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phil1664
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Aug 30, 2012 16:13 |  #24

Again, some very, very useful point on here, thank you for all your time to comment.

I think as Nigpd has said though, maybe I should stop discussing it on here (even though I've not mentioned the company or the website or anything else to identify them) and contact a copyright lawyer. Initially, to take advice on the correct course of action, and also to instruct them to act if required.

I'll update the thread if and when I get a result and if nothing else, will definitely have learnt from this experience!! And if this prevents anyone else from ending up the same way, it was worth it.

Thanks again,

Phil


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Feedback always welcome!

  
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stillinamerica
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Aug 30, 2012 16:41 |  #25

Before you do anything. Take a screenshot of each image on Facebook, especially showing any 'limes' or comments. Save them in a file. Print them.

Believe me this is important. You want a screenshot from your computer because you want a date and time. People only post things to Facebook they like.

Inha this issue with a bride who complained that she didn't like her images an wanted money back. By soon this action, with everything else I had....I won easily.


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Dan ­ Marchant
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Aug 30, 2012 20:25 as a reply to  @ post 14925726 |  #26

I have spent 20+ years dealing with cases just like this. I'm not a lawyer (and this isn't legal advise) but I do negotiate complex IP contracts and (sadly) have to do a lot of conflict resolution when companies try to stiff clients in just this sort of situation.

The information that tim gave above is correct
1. Your case is not copyright infringement it is breach of contract. You have agreed a contract which includes a grant of license for them to use the images. The fact that they have not paid is a breach of contract but the license still exists - this means your course of remedy is to sue/settle the breach of contract not to pursue an infringement case (as none exists).

2. Given point one above, the Hoffman case is irrelevant and does not apply* so don't let it distract you.

3. It is very common for companies to claim "the work wasn't good enough" in order to avoid paying. However subsequent use of the work is accepted by the courts as a clear indication that the work is fit for purpose. I have seen this countless times in my day job and the courts will look very poorly upon your client for their actions and will rule in your favour.

4. I am normally the first to recommend getting a lawyer but in this case (given the value of the contract and the simplicity - no IP issues) it really isn't necessary. You can do this perfectly well yourself through the small claims court. The fee for pursuing your £700 would be in the region of £70.

5. Send a registered letter stating that you have become aware that they are using the images you provided and that their use of the images negates their earlier claim that the images were not acceptable. As a result you now require payment in full within 7 days** and that failure to pay will result in you issuing proceedings for recovery. If they insist the images aren't good enough and they want a reduced fee (another common tactic) feel free to reject the request and restate that payment is required. Don't bother entering into any further discussions after that, just proceed to point 6.

6. If they don't pay, issue proceedings through the small claims court. It is cheap and easy to do online at https://www.moneyclaim​.gov.uk/web/mcol/welco​me (external link).

7. A very common tactic in cases like this is for the client to threaten to counter sue for damages. This happened to a client of mine who was in the same situation as you (creative work done, invoice not paid, client claimed work was not good enough but then used it anyway). He was rather upset/worried but upon phoning his lawyer she was not amused - then proceeded to reassure him that such claims are a bluff, without merit and the courts take a very dim view of such tactics. She was right, she wrote them a letter telling them to shut up and pay up and they did.

8. Don't use the lawyers recommended by tim. Not because they aren't good, but because they are too good. tim is dealing with a copyright case and so he needs an experienced IP lawyer. However they cost a good deal more than a standard business/corporate lawyer. You really can just deal with this yourself through small claims. However, if you do want to consult a lawyer then a normal high street lawyer (who does business/corporate) will be perfectly able to send a demand for money/letter before action for a lot less than the fees charged by tim's lawyers.

* The court sets the value of images in such cases based on reasonable market rates when the plaintiff is not a professional, does not normally sell images and thus can't state the value. In the case of a professional who has a set value for their work that value will apply. You agreed license terms with the client and set the value of the deal at $700 so that is the value.

** It is important to be seen to act reasonably in legal disputes and to give the other party time to remedy a breach of contract - the courts like that. Given that the breach is non-payment 7 days is a reasonable period.


Dan Marchant
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tim
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Aug 30, 2012 20:56 |  #27

Dan Marchant wrote in post #14928685 (external link)
Don't use the lawyers recommended by tim. Not because they aren't good, but because they are too good. tim is dealing with a copyright case and so he needs an experienced IP lawyer.

They do seem pretty good, and my case is a trifling little thing. I wouldn't mind a second opinion though, if you don't mind a quick PM?


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OldA1
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Aug 30, 2012 21:50 |  #28

Hello all, first, to Phil, sorry this happened. I normally spend most of my time here reading and learning, with little posting but in this thread I am a little confused. I am getting hung up on the fact that the images were copied BEFORE returning the CD. If the 'client' simply refused to pay, based on not liking the images, I can understand calling it a breach of contract but since they returned the CD (which gives the impression that they have no desire to use the images) and then used them later, why is that not grounds for copyright infringement (they did not have permission or rights to keep copies of the images)?

thank you
peace
Mark




  
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Fernando
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Aug 31, 2012 14:04 |  #29

OldA1 wrote in post #14929007 (external link)
Hello all, first, to Phil, sorry this happened. I normally spend most of my time here reading and learning, with little posting but in this thread I am a little confused. I am getting hung up on the fact that the images were copied BEFORE returning the CD. If the 'client' simply refused to pay, based on not liking the images, I can understand calling it a breach of contract but since they returned the CD (which gives the impression that they have no desire to use the images) and then used them later, why is that not grounds for copyright infringement (they did not have permission or rights to keep copies of the images)?

thank you
peace
Mark

Because there was a contract in place, regarless of their actions.


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joeblack2022
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Aug 31, 2012 16:16 |  #30

Sorry to hear OP, that just sucks plain and simple...

I have seen clauses written where license is only granted upon payment of invoice, I'm thinking that would have been a good idea here?


Joel

  
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Blatent Copyright infringement!
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