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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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My business has received a letter from a German law firm regarding

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My business has received a letter from a German law firm regarding a breach of copyright of an image owned by one of their clients. I used the image without permission on my company website. They have made a without prejudice damages offer of c£1500 and I am seeking advice as to what my options are.
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. How long did you use the image for?
Customer: replied 1 year ago.

I would estimate it has been on my company website for 2-3 years

Expert:  Ben Jones replied 1 year ago.
Such companies are notorious for the aggressive way in which they pursue people who use their images in what they believe is without their permission. Often the sums they request are exaggerated and in the hope that people will just pay up in order to avoid further threats or possible legal action. However, in reality the law on copyright infringement is not that simple and the way damages are calculated is different.
The first step is to establish whether you had the right to use the photo in question. It would depend on what licences were assigned for its use and who they had given permission to. If you were told by the site who had permission to use it that you were also allowed to use it and you did so in good faith then you will have a partial defence in a sense that any reasonable person in your position may not have been able to take further steps to establish whether they were breaching copyright.
Also if you had immediately removed the infringing photo, it is unlikely they can just go on and pursue the amount in question and they would be limited in seeking is damages suffered as a result of your initial use, which would generally be limited to the licence fee you would have paid had you sought permission directly from them to use the image. These would generally not be much more than £100 per image.
You can challenge the company to prove exactly what losses they have suffered as a result of this infringement and to provide proof of these, stating clearly that you will not simply be bullied into paying what is clearly an extortionate amount that is completely unjustified. Also remind them that a court will only award actual damages incurred as a result of this, usually limited to the licence fee one would have paid for the photo and unless it was some exclusive photo that would attract higher fees, nominal damages are likely to be awarded.
I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Customer: replied 1 year ago.

Thanks Ben.

So it would seem that my best course of action is to:

1) Remove the offending image immediately

2) Reply to the letter along the lines you suggest

Do you think to would benefit me if mention in my response that I have taken legal advice?

Also, is there any particular form of words you could suggest - or refer me to - which would add weight to my response, over and above your comments above?

Do you think it would be worth my while offering them, say, £100-£200 on a without prejudice basis to settle immediately?

Finally, if they continue to play hardball and we can't agree on a 'reasonable' settlement, what should I do next?

That's all the questions I think!

Thanks

Tony

Expert:  Ben Jones replied 1 year ago.
Hello Tony You are correct with the proposed actions. No harm in mentioning you have sought legal advice. As to using a form of words, don't try and get too bogged down with using legalese - the main points are that whatever they try and claim from you must be a genuine pre-estimate of the losses they have suffered as a result of this breach. They cannot penalise you or try to make additional profit which they would not have made had you purchased the licence at the start. All of this could amount to a penalty which can be unlawful. So you could indeed offer a without prejudice offer for full and final settlement of hat you have proposed and mention that it is what you have been advised is a reasonable licence fee for a single photo. If they fail to accept this then it is for them to take it further. They have to go to court first but they may not do so due to the cross-jurisdictional issues of suing between countries. So they could eventually give up but unless they go to court and win you cannot be forced to pay. If your original question has been answered I would be grateful if you could please quickly rate my answer by selecting 3, 4 or 5 starts at the top of the page - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45306
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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