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Alex J.
Alex J., Solicitor
Category: Law
Satisfied Customers: 3613
Experience:  Solicitors 2 years plus PQE
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I received an email this week to say that a copyrighted image

Resolved Question:

I received an email this week to say that a copyrighted image HMRC4374 was discovered by ImageRights or our client on my website for which there is no record of a license. I immediately emailed People Per Hour.com, a site for freelancers to be showcased on here. The guy at PPH said that I should be ok and and said he would, " make sure nothing damaging for you comes out of this."

I have now received a further email from PPH to ere say they have removed the freelancer concerned from their website

"Having discussed the matter with other members of our staff, there is unfortunately little we can do to force the seller to pay you back the funds, or arrange for the claim from the company to be resolved with us being a mediator. I have deactivated the seller's account as Fraud, and have notified her that before her profile is reactivated she will need to compensate you for any penalties you might incur as a result of the issue.

I will look to update you with further information when I receive any."

The issue:
I am faced with a £500 bill to pay within 14 days,
I asked for a professional to develop my site (I asked for an individual website not a template) and clearly got one with a copyright image (how do I know if there is more)
Whilst my company is limited, PPH appears to have dismissed their responsibility

I need to understand if
a. I have to pay this £500
b. what happens if I do not pay
c. what protection is there against this happening and whether there is any recourse for the consumer eg can I countersue?

thanks
Submitted: 3 years ago.
Category: Law
Expert:  Alex J. replied 3 years ago.
Hi,

Thank you for your question and welcome.

My name is XXXXX XXXXX I will assist you.

Did you engage a professional to develop the site for you and they have used a copyrighted image?

Did the developer give you any terms and conditions to sign? I say this because potentially your recourse is you could sue them for negligence or failing to provide the service with reasonable care and skill. The result of this would be that you could claim for your losses incurred as a result.

I look forward to hearing from you.

Kind regards

AJ
Customer: replied 3 years ago.

I engaged a professional who was a freelancer on the PPH website, they have used a copy right image.


 


The developer (who is an individual) did not give me any terms and conditions to sign, PPH have you tick their terms and conditions, when you advertise your job for freelancers to bid on.


 


I presume the T&C's say that they are not liable for the freelancers work, and they have today removed the freelancer from their listings. They have said that if she wants to rejoin them she will have to compensate me the £500, I do not have a contact address nor telephone for the lady who developed the site, all I have is an email, so she is unlikely to answer this!


 

Expert:  Alex J. replied 3 years ago.
Hi,

Thank you.

How much did you pay for the service?

Kind regards

AJ
Customer: replied 3 years ago.

£200 was paid for the service

Expert:  Alex J. replied 3 years ago.
Hi,

Thank you.

I am going to go and write a response, this may take me some time so please do not be concerned if you do not hear from me until this evening.

Kind regards

AJ
Customer: replied 3 years ago.

ok no problem, do you also think it would be worth writing to imagerights and explaining the situation and appeal to their client as whilst this website it up on the web, I am not actively promoting it, as it is still work in progress. At the moment I have not responded at all to their email.

Expert:  Alex J. replied 3 years ago.
Hi,

Thank you.

I will work this into my response.

Kind regards

AJ
Expert:  Alex J. replied 3 years ago.
Hi,

Thank you for your patience.

I will deal with the two issues in turn.

1. Copyright Infringement
- The first point to note is that if you use some one else's copyrighted material without permission you will likely commit primary infringement under S.17 of the Copyright Designs and Patent Act 1988 ;
- The remedies for this that can be ordered by a court include damages and delivery up of the infringing articles or an injunction;
- It is entirely the prerogative of the copyright owner if they bring proceedings but if they do they will be obliged to at least first try and resolve the dispute and prove any loss and damage;
- What I suggest you do is immediately remove the infringing picture and write to the company as follows in a letter marked "Without Prejudice Save as to costs":
(i) Say you have removed the picture and undertake not to use it without permission again;
(ii) Say the picture has not been used for any commercial purpose;
(iii) Confirm you have not made any profit from.
At the very least if they cannot prove any damage you will be able to negotiate down the £500 fee or get them to agree not to charge it on the basis that no damage has been caused and you have not profited from it and given an undertaking not to do it again.

2. Complaint against PPH
- One thing that might make it easier for you to claim against PPH is if you prove that they have done any vetting of the developers on your behalf as part of their service - can you confirm this?
- Alternatively it is possible the developer is in breach of S.13 of the Supply of Goods and Services Act 1982 and failure to exercise reasonable care and skill, but you have only paid £200 for this service and accordingly any claim against the developer is likely to be limited.

I look forward to hearing from you.

Kind regards

AJ
Customer: replied 3 years ago.

ok so I will draft a letter to them...?


 


Do I have to take an email as being a valid and authentic demand for payment?


Is there not an internet ombudsman I could take this up with?


I was going to check how I paid for the website (I know I deposited through Escrow to the PPH website does this not protect me?)


Can I not redirect the company who have emailed me for the infringement to PPH rather than to me? Or even to the website designer... in other words should I not give them the background to the problem I face myself with?

Expert:  Alex J. replied 3 years ago.
Hi,

Thank you.

Yes - write a letter to the copyright owner asap.

I would take the email as a valid notice of infringement. If you want it to escalate then the next step would be court action for which they would have to formally follow court procedure called the Pre Action Protocol. This will likely cost money to them increasing what they demand from you.

I am afraid not really there is no internet Ombudsman as this relates to a copyright dispute.

You could complaint to Trading Standards of the conduct of PPH.

You cannot redirect them to PPH as you are in control of the site and therefore you have published online so to speak.

Kind regards

AJ
Customer: replied 3 years ago.

Thanks for the information, I think I have just one last question, would it not be good for me to contact the web designer to see if she has purchased the template and or the image for use on my site? I have an email for her or would it have to be my company that purchased the image/template to avoid legal action against the company (mine)

Expert:  Alex J. replied 3 years ago.
Hi,

Thank you.

Yes that is certainly a very good idea as if she has already paid a licence fee for use of the image in this circumstance then you wont be infringing.

However it seems unlikely that the copyright would not already be aware, but it cannot harm to check.

Do you actually want to use the image going forward? If you do not then I would recommend that you remove it as soon as possible.

Kind regards

AJ

Customer: replied 3 years ago.

I have removed it now but my worry is I don't know what images have been potentially incorrectly used without licence so now I am faced with deleting all images within the site. If I respond to the image rights company then potentially this could open the floodgates for all the images! I do not know how to check the licences on these things, but I will contact the web designer as long as it won't cause any issues?

Expert:  Alex J. replied 3 years ago.
Hi,

Thank you.

If you just pose the question to the web designer then it wont prejudice you in anyway.

I am afraid you will have to check the copyright of each image before you start using the site for commercial purposes as it may expose you to other claims.

When you write to the copyright owner say that the use of the image was accidental and inadvertent.

Kind regards

AJ
Customer: replied 3 years ago.

Hopefully your assistance will help, can't help thinking that People per hour have a duty of care to its members to avoid this happening,


 


thank you,

Expert:  Alex J. replied 3 years ago.
Hi

Thank you.

It would be worth checking the t and c s of PPH to see if they warrant that they have vetted the people that work through the site. If they do you might have a claim against them.

I wish you the best of luck.

Kind regards

AJ
Alex J., Solicitor
Category: Law
Satisfied Customers: 3613
Experience: Solicitors 2 years plus PQE
Alex J. and other Law Specialists are ready to help you
Customer: replied 3 years ago.

I paid for the service through my credit card, so have spoken to them and they are helping me potentially to reclaim monies paid, thanks again for your guidance.

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