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JGM, Solicitor
Category: Law
Satisfied Customers: 9973
Experience:  30 years as a practising solicitor.
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Copyright, breach of contract on photo questionI have been

Customer Question

Copyright, breach of contract on photo question I have been contacted by website: 'Undiscovered Scotland' saying I used one of their photos. Looked at pictures they are same/similar. My photo came from 3rd party at training course - photo on memory stick which I asked to use. There were lots of photos and I can't remember name of lady I met with photo stick. I removed photo and apologised to 'Undiscovered Scotland' and they now want £1000 for beach of contract. I assumed lady took pictures as she had lots of same view and outlook. My initial reaction was I was in wrong.. I can't afford £1000 and do not know how to address this situation. my response was: "thank you for your email regarding photo of Urquhart Castle. I cannot confirm the source as photos were given to another and then to me and being a rank amateur at IT I am now aware and have to go back and check all. photo has been removed for website and my apologises" This request for damages has been given via email only from a Ken Lussey on a Maureen Lussy email address with no identification of position etc.. My reply has basically told them I am guilty.. Claire

The image came from an individual not a website!

Submitted: 1 year ago.
Category: Law
Expert:  JGM replied 1 year ago.
Thank you for your question.
You are protected as you used the image in good faith and removed it as soon as your had intimation that there was a potential copyright issue.
You have no contract with this party and they can't extort money from you under these circumstances. Many photo libraries try to do so. Tell them to stop contacting you or you will get a court order. They will eventually go away. They have given no evidence to you that they actually own the image either, I bet.
You have done all you have to do here. Don't be intimated.
Happy to discuss further.
Please leave a positive response so that I am credited for my time.
Customer: replied 1 year ago.

The claim for damages is very intimidating and my next reply I need to put it to bed.

Can you phrase the sentence in a way for me please. I heart gut plus are in turmoil.

Undiscovered Scotland is not a photo library but a website promoting all scottish and it is quite informative..


Expert:  JGM replied 1 year ago.
"Your claim for damages is rejected as extortionate and unjustified. The image has been removed. If you contact me again I will use the full extent of the law to stop your harassment and intimidation.
Customer: replied 1 year ago.

Wow.. full on.

scary stuff

Expert:  JGM replied 1 year ago.
They will eventually give up.
Customer: replied 1 year ago.

The damages letter states I have 14days to pay or be taken to court for nearly £3000 and they quote lots of references plus for their claim too.

Will compose reply to them but if you are ok with this I will copy to you first? Seriously do not need any of this right now in my life. thank you


Expert:  JGM replied 1 year ago.
Customer: replied 1 year ago.

My concerns are that their claim paperwork is so professionally put together and I cannot name the person who gave me this image as I received at inverness raigmore hospital in the January as my hubby was in hospital for quite some time so the cafe being my work place and social place. I cannot prove a thing and the more I look at the images the more concerned I become.

Do I declare this information?


Regarding your Claim for Damages submitted by email ==========.

I have taken legal advice researching and giving my source plus being that ==as above============

I have been advised that I have taken all necessary steps. I received and used the image in good faith; removing it as soon as you implied that there could a potential copyright issue.

Since being made aware that there could be a copyright issue the image was removed.

Your claim for damages is rejected as extortionate and unjustified. The image has been removed. Should you contact me again on this issue I will use the same legal path to prevent any further harassment and intimidation.

Expert:  JGM replied 1 year ago.
Your drafting is fine.
As regards ***** ***** I have seen this on many occasions. Please do not be intimidated. These companies adopt a "blunderbuss" approach. They issued thousands of these letters and hope that one or 2% actually pay up when there is no legal obligation on them to do so.
Customer: replied 1 year ago.

Need another assist please.

Following on from communication as above I didn't actually send a reply - chickened out and put my head in sand quite literally.

Just received letter hard copy of email now Mr Lussey from Undiscovered Scotland Site stating 14days deadline for payment of damages passwed as per their letter and they are now submitting to court for damages.

Do I reply by mail with initial response or let all be?

Sorry I didn't send him a reply now. What next please

Expert:  JGM replied 1 year ago.
Send the reply I advised before.
Customer: replied 1 year ago.

Ok., but I think I hestitated as this is one man represented his own website with a bee in his bonnet not a massive . as he had now sent all by letter I reply by letter or email?

Will email and post reply today. Claire

Expert:  JGM replied 1 year ago.
Email confirmed by Registered or Recorded delivery letter.
Customer: replied 1 year ago.


Please see below reply to my email sent yesterday:

Dear Ms Mackenzie

Thank you for your email. In it you talk about wrong doing. I am sure your legal adviser will have told you that as far as the law is concerned your position is that you used property belonging to another small Scottish business without our permission in order to promote your business on the Internet.

I understand what you say about your source for the image. But it might be helpful if you have your legal adviser explain to you the implications of Section 16(3)(b) of the Copyright, Designs and Patents Act 1988. This Section makes it clear that a publisher is breaching copyright whether they obtained the image in question “either directly or indirectly”, and it goes on to say: “and it is immaterial whether any intervening acts themselves infringe copyright.” In other words it makes no difference in law whether you obtained our image from Undiscovered Scotland directly or via a third party.

The question of ownership of the original image is, of course, a central one. If and when this matter comes before the court we will produce in evidence a copy of the original image file in the form in which it emerged from the camera that took it, complete with the EXIF data appended to it by the camera at the moment of taking. For obvious reasons I cannot provide you with that file in exactly that form (as you would then have evidence of ownership nearly as good as my own), but I do attach a full size copy of the image with the EXIF data stripped out, with the file name changed, and with a spoiling watermark inserted simply to avoid the image being used for any other purpose.

I am quite concerned as I cannot provide any evidence just my word.

What now?

Expert:  JGM replied 1 year ago.
Tell him about section 97 of the same Act:
"97. Provisions as to damages in infringement action.
(1) Where in an action for infringement of copyright it is shown that at the time of the infringement
the defendant did not know, and had no reason to believe, that copyright subsisted in the work to
which the action relates, the plaintiff is not entitled to damages against him, but without prejudice
to any other remedy.
(2) The court may in an action for infringement of copyright having regard to all the circumstances,
and in particular to
(a) the flagrancy of the infringement, and
(b) any benefit accruing to the defendant by reason of the infringement,
award such additional damages as the justice of the case may require."
The image was removed and that's an end of it. No court in the land is going to give him what he seeks.
Please now leave a positive feedback so that I am credited for my time.
Customer: replied 1 year ago.

Thank you indeed for this information. Claire

Customer: replied 1 year ago.


Me again this immediate response I received from Giving Mr Lussey Section 97 was as below. I am not going to response but would appreciate your advise on his response. Claire

Dear Ms Mackenzie

Thank you for your further email. It is helpful that you have taken a look at the relevant legislation. As you will perhaps now be aware, the Copyright, Designs and Patents Act 1988 sets out a framework, largely continued from earlier legislation, within which a publisher needs to assume that every image is someone's copyright: and take appropriate steps to ensure they have the permission of the copyright owner for any they use.

In publishing our image you therefore had every "reason to believe that copyright subsisted in the work". In the eyes of the law your copyright infringing use of our image is viewed in much the same light as would be my staying at Tulach Ard and departing without paying before breakfast.

I would again suggest you take a look at the case report linked from my 19 November letter:

I would also repeat the suggestion made in that letter that: "This may be an appropriate moment to suggest that if you have not already done so, you might wish to seek legal advice from a solicitor familiar with the application of the Copyright, Designs and Patents Act 1988 in the Scottish courts in cases of breach of copyright."

Expert:  JGM replied 1 year ago.
Do not respond to this. If you follow the link he gives you'll come to a recommended scale of charges for use of photographs. How he justifies what he is seeking based on this, or even common sense, is a mystery.
He has clearly some stock answers himself and I would now ignore him as earlier advised.
You have not yet left a positive rating on the system and it would be helpful if you would now do so.
JGM, Solicitor
Category: Law
Satisfied Customers: 9973
Experience: 30 years as a practising solicitor.
JGM and other Law Specialists are ready to help you
Customer: replied 1 year ago.

Thank you for following through and glad you agree with my take in this too.

Left you rate and bonus before it now shows.

Thank you indeed. Claire

Expert:  JGM replied 1 year ago.
Many thanks.

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