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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 8539
Experience:  I have been practising for 30 years.
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I have been asked to pay damages of £655 a photo of a patio

Customer Question

I have been asked to pay damages of £655 for downloading a photo of a patio then adding to my website. Is this a reasonable amount to ask ?
Submitted: 4 months ago.
Category: Law
Expert:  F E Smith replied 4 months ago.

Who has the letter come from and was purporting to be the owner of the image?

If it’s come from one of the usual image suppliers such as Shutterstock or Istock or Getty, how much would they charge for that image?

Or, has the letter come from a patio supplier?

From the solicitor from any of these companies themselves?

Customer: replied 4 months ago.
Hi again
May I apologize the delay in responding. I hope the enclosed files can answer your questions. As you can see the letter is from a solicitor on behalf of a Jet washing firm.
How can I tell if the photo in question (img002) is the property of Bournemouth Jet Washing.
Expert:  F E Smith replied 4 months ago.

That paperwork is quite impressive. I can understand why anyone would be a little nervous when it arrived through the post. They do also, according to their website, specialise in exactly this type of claim. You mustn’t ignore this correspondence.

I assume that you have already removed the image. If you have not, then you need to do so now.

There are several issues here. Remember that the more you argue, if this goes to court, the more costs they will get.

Is the image the property of Bournemouth jet washing? Whether they have copyright in the image is an argument where you could put them to strict proof that they own the copyright but as this has come from their solicitors, the solicitor must be reasonably confident that they do. You can ask them for proof but that will add onto their bill and probably do little to help you unless you genuinely believe this image has come from somewhere else.

With regard to the use of the image, if it does belong to them, then you have breached their intellectual property right and they are entitled to compensation and damages.

The issue therefore appears to be the measure of damages and whether they would pursue it to court.

They have presented a whole raft of information which in the legal profession is called “snowballing”. There is a lot of bad information (for them) in there also.

To my mind and based upon the evidence, provided they do have the intellectual property in the image, then they are entitled to some payment. It is the level of payment which is problematical. If £655 is their first stab, they will not be expecting that much.

If you were to buy this image from Getty images or suchlike, you might spend between £50 and £200. However that would include the right to use the image and similarly, so would the rates they quote from the NUJ which don’t necessarily apply here.

My suggestion would be to decide how much you want to pay them and send them a cheque in full and final settlement telling them that if they accept it as such, they should put it in the bank and if they don’t, they should return it to you uncashed. The cheque should be payable to the solicitors. It does work more times than not and is worth a try. If they return the cheque to you, you will need to see whether they come up with another offer.

In their claim for £655, they are agreeing the licence to use the image for 12 months which is expensive. It depends how important this image is to you whether you could buy another image doing the same job from one of the normal image suppliers. If you couldn’t, and you had to engage a photographer to do the job, then the £655 is not that unreasonable. If you cannot find an image suitable, it may be a fee that you want to pay but that decision is yours although I would be wanting a 10 year licence and not a twelve-month one.

Because of the level of the claim, and the fact that this is an open letter, they could not claim more than this if they went to court and it’s likely to be dealt with as a small claims matter because of the level of claim involved and hence, they would not recover solicitors costs even if they won.

Mark the letter Without Prejudice Save as to Costs so they cannot then produce the letter in court as any kind of admission.

Can I clarify anything for you?

Please rate the service positive. It’s an important part of the process by which experts get paid.

We can still exchange emails.

Best wishes.

FES.

Customer: replied 4 months ago.
Thank you very much for the advice. My immediate response was to panic but you have settled me with sound reasoning.
If I send a cheque for a lesser amount for Full and Final settlement and they refuse it, could they insist on demanding more for the delay ?
Expert:  F E Smith replied 4 months ago.

They can insist all they like but recovering it is a separate issue.

They would only recover legal costs if they issued proceedings.

Incidentally, one of the point, and that is that if they paid £655 to get this photograph done by a photographer, they get some benefit from it and hence, they would be entitled to recover £655, but probably half of that.

Please don’t forget to rate the service positive so that I get paid. Best wishes.

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