Blatent Copyright infringement!

As stated by previous posts this (sadly) isn't a copyright infringement case. It is a breach of contract case. I'm not a lawyer (and this isn't legal advise) but I have dealt with lots of these in my day job and spoken with some heavy weight IP lawyers while doing so. The OP granted the company a license to use the images as part of the contract. Currently the company are in breach of their responsibilities under the contract but that does not mean the contract automatically ceases to exist. Because the contract exists, the license exists, so no copyright infringement. The OP can sue for breach of contract, not copyright infringement, unless......

There is such a thing as a Material Breach of contract. This is a breach considered so severe that it effectively renders the contract terminated. I can't say legally if the license would persist in the event of a Material Breach. Nor can I say if failure to pay amounts to a Material Breach. The OP would need to talk to a lawyer and find out if an argument could be made for such a breach and what the process is. Sadly that would cost money.

Yaryman wrote in post #16000355
So the company STEALS the images, ( that can be the only description of what happened ) and a judge is going to REWARD the thief by telling them they just have to pay the original price?

Actually, at least one lawyer disagrees with the advise given previously that you can only get the original value of the license fee when suing for copyright infringement.
See http://www.epuk.org …en-photographs-what-to-do

Basically he states that under UK law you can claim for additional damages but you need to work harder than you do in the USA. You need to build a case for additional damages on the basis that the infringement was Flagrant, as well as a number of other reasons, and by piling these reasons up together you can use the weight to sow the court that additional damages are warranted (or get the infringer to settle for a higher amount to avoid court).

Dan Marchant wrote in post #16001063
As stated by previous posts this (sadly) isn't a copyright infringement case. It is a breach of contract case. I'm not a lawyer (and this isn't legal advise) but I have dealt with lots of these in my day job and spoken with some heavy weight IP lawyers while doing so. The OP granted the company a license to use the images as part of the contract. Currently the company are in breach of their responsibilities under the contract but that does not mean the contract automatically ceases to exist. Because the contract exists, the license exists, so no copyright infringement. The OP can sue for breach of contract, not copyright infringement, unless......

There is such a thing as a Material Breach of contract. This is a breach considered so severe that it effectively renders the contract terminated. I can't say legally if the license would persist in the event of a Material Breach. Nor can I say if failure to pay amounts to a Material Breach. The OP would need to talk to a lawyer and find out if an argument could be made for such a breach and what the process is. Sadly that would cost money.

It depends on the contract. Most of the contracts I've seen (which had nothing to do with copyright and were in a different legal system) had a clause stating what happens in case of non-fulfilment of contractual obligations... and also ways to make a contract cease to exist.

As a human, I'd imagine the one side not fulfilling the one, only and all obligations would constitute breach of contract. But it means nothing.

Dan Marchant wrote in post #16001063
As stated by previous posts this (sadly) isn't a copyright infringement case. It is a breach of contract case. I'm not a lawyer (and this isn't legal advise) but I have dealt with lots of these in my day job and spoken with some heavy weight IP lawyers while doing so. The OP granted the company a license to use the images as part of the contract. Currently the company are in breach of their responsibilities under the contract but that does not mean the contract automatically ceases to exist. Because the contract exists, the license exists, so no copyright infringement. The OP can sue for breach of contract, not copyright infringement, unless......

There is such a thing as a Material Breach of contract. This is a breach considered so severe that it effectively renders the contract terminated. I can't say legally if the license would persist in the event of a Material Breach. Nor can I say if failure to pay amounts to a Material Breach. The OP would need to talk to a lawyer and find out if an argument could be made for such a breach and what the process is. Sadly that would cost money.


Actually, at least one lawyer disagrees with the advise given previously that you can only get the original value of the license fee when suing for copyright infringement.
See http://www.epuk.org …en-photographs-what-to-do

Basically he states that under UK law you can claim for additional damages but you need to work harder than you do in the USA. You need to build a case for additional damages on the basis that the infringement was Flagrant, as well as a number of other reasons, and by piling these reasons up together you can use the weight to sow the court that additional damages are warranted (or get the infringer to settle for a higher amount to avoid court).

I'm afraid that when the company said they didn't want the images, that's the end of that contract. Using the images that they hadn't paid for is IMO infringement of copyright. If they'd agreed to the terms of the contract then refused to pay - as you say, breach of contract. But they are no longer bound to a contract as they 'didn't want the images'.

Also, there have been changes to the UK system to make it easier to go after copyright infringement since that article was published. I linked the IPO's new site earlier in the thread. Here's a newspaper article too.

I'm not even sure whether it's been tested yet by any photographers, because, like I said earlier, we appear to get our knockers in a twist about invoicing people for retrospective usage instead of using the correct law.

Phil V wrote in post #16001626
I'm afraid that when the company said they didn't want the images, that's the end of that contract.

Do you have something to back that up? Contracts don't just vaporize because one side is unhappy.

aphphoto wrote in post #16001648
Do you have something to back that up? Contracts don't just vaporize because one side is unhappy.

A contract requires that both sides be in agreement. If they never signed (or agreed to) the contract, then that agreement never existed. However, the OP said:

phil1664 wrote in post #14924432
The agreed price was £700 ($1100). A few days later, the photography was completed, around 500 images edited and sent back to them, as well as an invoice for £700.

Six weeks later, the invoice unpaid, the manager raised issues with me (only after I prompted a response) about the "quality and composition" of the images.

That implies that there was a verbal agreement, and given the specificity of the OP's actions afterwards, it doesn't seem as though it could be disputed that there was at least an agreement. But since there wasn't a completed, written contract, that's where the whole thing gets much more nuanced and difficult to prove one way or another, which makes it implausible that those of us in this forum can make a reasonable judgement about what, legally, should happen.

Rather, it should serve as a reminder to everyone that they should get a signed physical contract before beginning (or certainly delivering) any work.

Phil V wrote in post #16001626
I'm afraid that when the company said they didn't want the images, that's the end of that contract. Using the images that they hadn't paid for is IMO infringement of copyright. If they'd agreed to the terms of the contract then refused to pay - as you say, breach of contract. But they are no longer bound to a contract as they 'didn't want the images'.

I have been dealing with Intellectual Property license agreements for over 20 years and the above isn't correct.
A breach of contract does NOT automatically end the contract. You have to inform the party of the breach and give them a reasonable time to remedy. In fact, when the company informed the OP the the images weren't good enough they were notifying the OP of a breach. They should have given them the opportunity to remedy the breach and failing to do so would count against them in court.

Once notified of a breach if a party fail to remedy then you can terminate the contract. If you haven't informed them of termination then it isn't terminated. Any use of the image prior to termination is covered by the license and as such isn't infringement.

Firstly, I'm happy to see that this thread has developed into a very good read on what members consider a breach of contract and a copyright infringement, both in the UK and elsewhere.

However, there seems to be some argument as to which my case was. In summary, this is what I was told by my legal position was:

I did have a contract with the company and I completed my side of that contract. The company, after 6 weeks, decided that they were not happy with my work and, despite my offers to re-edit or re-shoot, sent the discs back and refused to pay. In effect, they had cancelled the contract.

It is evident that they had made copies of the images, images that they were only entitled to use upon payment, which was never made. To that end, they had no entitlement, or licence, to use the images. It's worthy of note at this point to say that I held all the model release forms for everyone who was in the images.

Seeing the images on their websites and Facebook, it was also evident that ther were using the images. This flys in the face of their argument that they were not happy with the images, and no additional editing had been done my me or anyone else. So, they were in fact, using what they considered to be unsatisfactory images to promote their business.

The company WERE in breach of my copyright, as they had no licence to use, copy or distribute the images. This was caused by their refusal to pay the contract.

Had they paid the contract, even at a reduced rate, they would have had the licence, but they had nothing.

Had they not have used the images, it would have been up to me to prove, in court, that the quality and composition of the images were justifiable for the fee charged. Photography can be very subjective and one persons opinion will rarely be the same as anothers. Had I been successful in proving my case in these circumstances, I would likely have won the original fee plus interest.

As things were, they decided to use the images, which I, and most others, agree completely destroys their argument that the images were unsatisfactory. In doing so, they were ALSO in breach of my copyright. It is irrelevant that there was a contract in pace for the use, as the contract was never paid. It is on the same level as them lifting the images from Flickr or Facebook.

The advice I was given was that the company were guilty of BOTH breach of contract (for non payment without good reason, proved by their use of the images) and also breach of copyright (they had no licence in place to use them).

If I were to take the case to court, which I was prepared to do if there was no settlement, I would have had a very good case. But, nothing is ever definitive, and a good lawyer could have put forward a convincinging enough argument to prove me wrong, or at the very least, provide an element of doubt.

I took the money and ran, as I didn't want the situation to go any further (it had been ongoing for 18 months already) and it was already starting to impact on my relationship. So the original amount and a peaceful life is better to me than triple the amount and the loss of the woman I love. You sometimes have to be there to understand!

I'm not a full time photographer, I have a career which restricts me from certain activities and I have to respect that. However, I do feel that I should be paid for what I have done and to that extent, I have been. Yes, I could have taken more money, taught them a lesson and took them to the cleaners. It's even possible that I could have forced them into a really tight corner with a favourable judge, but I wasn't after blood, just my money.


Finally, as there is clearly a difference between the UK and US systems, the link below was key to proving my case to the company, and possibly, what prompted them into action:

http://www.bailii.org/​ew/cases/EWPCC/2012/2.​html

The case revolves around a photographer who sold images of drugs to the National Health Service. They passed them Oporto. A charity, who used them in breach of copyright. The judgement explains how this happened.

The judge ruled in favour of the photographer but disagreed with his valuations. Under point 47, the judge makes his ruling for total damages, which is £10,000. The Department of Health originally offered £50,000 to settle out of court but the photographer refused it. In the end, he got only 20% of what he was originally offered, and I certainly did t want to end up in the same situation!


So, that is what happened. The company breached the contract AND breached my copyright, as one does not automatically dismiss the other.

Again, I'm glad that this has provoked such a genuinely interesting response and I look forward to reading the replies.

Phil

aphphoto wrote in post #16001648
Do you have something to back that up? Contracts don't just vaporize because one side is unhappy.

They're not unhappy, they have ended the agreement. Unless the contract covers what would happen in these circumstances, then it's the end of the contract (it appears that was agreed by both parties - however reluctantly).

This isn't simply someone refusing to pay for goods they'd received, this is someone who said they no longer wanted the product and handing it back, the seller accepted it back. That's pretty much the end of the contract as I see it.

Dan Marchant wrote in post #16002383
I have been dealing with Intellectual Property license agreements for over 20 years and the above isn't correct.
A breach of contract does NOT automatically end the contract. You have to inform the party of the breach and give them a reasonable time to remedy. In fact, when the company informed the OP the the images weren't good enough they were notifying the OP of a breach. They should have given them the opportunity to remedy the breach and failing to do so would count against them in court.

Once notified of a breach if a party fail to remedy then you can terminate the contract. If you haven't informed them of termination then it isn't terminated. Any use of the image prior to termination is covered by the license and as such isn't infringement.

Dan,
I never said it was an automatic end to any contract, but if you read the OP, and the further post from Phil above. It appears that In this case both parties agreed a termination of the contract. The breach of copyright occurred well after that agreement was reached.

So IMHO it couldn't be clearer in this case. Again I never said that someone refusing to pay for something was an instant termination of any contract.

Phil,

Thanks for the update.
I can understand not wanted to ruin a relationship for a few pounds more.

That said, it sure sounds like the worst you could have done in court was the 700 pounds,
and there seemed to be a lot more upside.

In the case you sited the people using the images thought they had permission to do so. They didn't.

In your case the people using the images KNEW THEY HAD NO PERMISSION TO USE THE PHOTOS AND WERE IN FACT STEALING THEM.

I would imagine that fact would lead a judge to setting a MUCH HIGH DAMAGE fee.

Phil V wrote in post #16004791
They're not unhappy, they have ended the agreement. Unless the contract covers what would happen in these circumstances, then it's the end of the contract (it appears that was agreed by both parties - however reluctantly).

This isn't simply someone refusing to pay for goods they'd received, this is someone who said they no longer wanted the product and handing it back, the seller accepted it back. That's pretty much the end of the contract as I see it.

You hit the nail on the head. If they said they were unhappy with the images and mailed the disc back then the contract for him to get paid the 700GBP ceases to exist. However with that said if they then use the images that WOULD be both breach of contract as per the original terms (since they never paid they have 0 usage rights) and it also infringes on his copyright on the images by them being used without payment contract or not.

Yaryman wrote in post #16007317
In your case the people using the images KNEW THEY HAD NO PERMISSION TO USE THE PHOTOS AND WERE FACT STEALING THEM.

I would imagine that fact would lead a judge to setting a MUCH HIGH DAMAGE fee.

...in my imagination the Judge would leap from the clouds with a scythe in hand, and deal swift justice to all those who infringed copyright. But in the real world, "imaging" that a judge would set a much higher damage fee is just that: an imagining. Unless you are cromulant with the way the law works where the OP lives, then your speculation is grounded in absolutely nothing.

Real life is not fair and it seems like Phil took the best option for him and his personal circumstances, and good on him.

icacphotography wrote in post #16007632
If they said they were unhappy with the images and mailed the disc back then the contract for him to get paid the 700GBP ceases to exist.

It was SIX WEEKS before they told him they were unhappy with the images. Admittedly this situation is a bit sketchy because there was apparently no written contract but nobody gets to keep a product for six weeks, decide it is not to their liking and just magically have a contract cease to exist. They had an obligation to give him timely notice that the product was not satisfactory and to give him an opportunity to fix it. You don't get to ignore a business contract and then say it no longer applies.

banquetbear wrote in post #16007680
...in my imagination the Judge would leap from the clouds with a scythe in hand, and deal swift justice to all those who infringed copyright. But in the real world, "imaging" that a judge would set a much higher
damage fee is just that: an imagining. Unless you are cromulant with the way the law works where the OP lives, then your speculation is grounded in absolutely nothing.

Did you bother to read the case sited by the OP?? The case took place in England. The judgement took place in England.

Seems rather pertinent to this case.

The 19 photos in that case had been used for 4 years without permission. The photographer asked for 250 pounds per image per year, or 19,000 plus an additional fee for the thumbnails of the images.
The judge felt the fee the photographer was asking was too high, but did award the photographer 10,000 pounds or 526.31 pounds per image.
The photographer was also awarded interest on the monies not paid.
The photographer was also awarded his legal fees.

So the photographer in the case sited by the OP got 10,000 pounds plus interest and legal fees, for 19 photos that were used by someone who thought they had permission to use them..

In this case there were 43 images that were stolen and used without permission.

It is certainly logical and reasonable to expect a judge to award damages and fees equal to at least the amount paid by someone who used photos without permission, but thought they did have permission.

All that said, as I mentioned before, the OP had to do what was right for himself and not what was best for the photographic community.

Yaryman wrote in post #16008747
Did you bother to read the case sited by the OP?? The case took place in England. The judgement took place in England.

Seems rather pertinent to this case.

The 19 photos in that case had been used for 4 years without permission. The photographer asked for 250 pounds per image per year, or 19,000 plus an additional fee for the thumbnails of the images.
The judge felt the fee the photographer was asking was too high, but did award the photographer 10,000 pounds or 526.31 pounds per image.
The photographer was also awarded interest on the monies not paid.
The photographer was also awarded his legal fees.

So the photographer in the case sited by the OP got 10,000 pounds plus interest and legal fees, for 19 photos that were used by someone who thought they had permission to use them..

In this case there were 43 images that were stolen and used without permission.

It is certainly logical and reasonable to expect a judge to award damages and fees equal to at least the amount paid by someone who used photos without permission, but thought they did have permission.

All that said, as I mentioned before, the OP had to do what was right for himself and not what was best for the photographic community.

...are you a lawyer? Are you an expert in British IP law? Your taking a layman's view of the case based on your reading of another case: that doesn't make you an expert. When you've read the details of the other hundreds of IP cases and when you've spent several years studying British IP law then maybe your opinion would count for something. "Logic and reason" don't add up to legal advice. What you think is logical would likely quickly be set aside with the flourish of the judges hand. He did what was right for the photographic community: he got paid.