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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 9984
Experience:  30 years as a practising solicitor.
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JGM, I'm reading -- was this matter pursued further or

Customer Question

HiCustomer I'm reading -- was this matter pursued further or did it end with the customer ignoring further responses from the Scottish complainer?
Submitted: 12 months ago.
Category: Scots Law
Expert:  JGM replied 12 months ago.
I'm afraid I don't know. The customer hasn't reported back. If I can help you with a similar issue, let me know.
Customer: replied 12 months ago.

We got what sounds like the exact same letter, and answered that it was removed instantly, user-generated content on a non-commercial news/educational oriented web page, and then got the same response from him. Do you still advise not answering, or is there a message we should send back to his message below.

Dear Mr Thompson


Thank you for your email. Further to my 17 September letter and your subsequent removal of the copyright infringing image from your website, I now state our claim for damages for the notified case of copyright infringement.

I note that in your 17 September email you suggest that you obtained the image from a third party rather than directly from Undiscovered Scotland. Section 16(3)(b) of the Copyright, Designs and Patents Act 1988 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.

Please note that this letter is written under the terms of the Copyright, Designs & Patents Act, 1988, as added to and amended by the Copyright & Related Rights Regulations 2003 as well as the Electronic Commerce (EC Directive) Regulations 2002 and all other relevant legislation.

The calculation of damages is based on the National Union of Journalists freelance rates for web site use which in turn are based on the UK average prices for commercial photography. These are set out at: language=en&country=UK&section=Photography&subsect=Online+use+of+photos

You will see that for commercial and business use, the NUJ rate for a 600x800 pixel image for one year is currently £850, and the rate for a 300x400 pixel image for one year is currently £400. This gives a rate for a 280x185 pixel image of £280 for one year's use.

Data appended to it by the server reveals that the image in question was uploaded to your site on 27 September 2014, or a year ago. The equivalent NUJ rate for your use of this image is therefore £280.

Undiscovered Scotland*****Livingston EH54 6PT United Kingdom


page1image20736 page1image20896

The NUJ rates are taken by the courts as a starting point when assessing damages. The

courts then typically double the NUJ rates for use that infringes copyright; and add a further 50% if no credit is given as to origin.

These adjustments are cumulative. This means that the appropriate claim for damages in respect of your use of our image on your site is the NUJ rate of £280 doubled to £560 because the image was used in breach of copyright; and increased by a further 50% to £840 because the origin of the image was not attributed.

In the interests of resolving this matter we are, without prejudice to our rights and pleadings in this or any other related matter, prepared to accept from you for prompt payment the sum of £400, in full and final settlement for the infringing use of an Undiscovered Scotland image set out in my letter of 17 September, provided I also have your written assurance that all use of any of Undiscovered Scotland's images on your website has ceased, that no further use has been or will be made of any images copyrighted to Undiscovered Scotland by you or by any other person acting for you at any time, and that all copies of the image concerned in your or your agents' possession have been permanently deleted from any and all storage systems and web servers.

This offer of full and final settlement of this matter for the payment of the sum of £400 will remain open for a period of 14 days from today's date. Should you choose not to settle for this amount, legal action for recovery of the damages, for the full £840 plus costs, will follow in the courts.

The entire contents of this letter will be founded upon in court if necessary and may additionally be used in communications with other interested parties.

Yours sincerely

Ken Lussey

Expert:  JGM replied 12 months ago.
I see they've given no legal authority for their quantification. Quote the relevant sections of the Act that I advised in the link you mentioned earlier. The amounts of money are so small that they are unlikely to sue you. They use a blunderbuss approach and try to scare people into paying. It's a scaremongering approach which a Scottiah court won't be impressed with. There is no Scottish authority they can quote you to justify their approach. Tell them that you aren't making any offer here and you will meet them in court. They will go away.
Customer: replied 12 months ago.

Here is the latest -- thoughts?

***** ***** <*****@******.***>
Oct 29 (1 day ago)

to Maureen
Dear *****-

Again, this was user-submitted, non-commercial news/educational content and as per the governing Digital Millennium Copyright Act, the image was removed and the user suspended immediately upon receipt of your notification, fulfilling all of the requirements under that act.

Additionally, the image was viewed less than 6 times, in a non-commercial fashion. There was no willful infringement, it was not flagrant and even under the Scottish law that you quote which is not where we are located, I'd direct you towards provision 97 under which it's clear that there are no 'damages'.

As previously indicated, the image was destroyed on our servers as well.



Ken Lussey <*****@******.***>
10:46 AM (8 hours ago)

to jason
Dear Mr Thompson

Thank you for your further email. In referring to Section 97, you presumably had in mind the words "not entitled to damages against him". More significant are the implications of the words "the defendant did not know, and had no reason to believe, that copyright subsisted in the work." A publisher will be expected by the court to know that most images are someone's copyright, so unless you are able to show that the image is old enough to be out of copyright (and as a modern colour image it self-evidently is not), then you have no defence under Section 97(1).

You say the image was used in a non-commercial fashion, yet it was used on a commercial site. You also say that the image was "user-submitted". For the reason set out in the second paragraph of my 22 September letter it makes no difference in law whether you obtained our image from Undiscovered Scotland directly or via a third party, though it is worth commenting in passing that the article the image was used to illustrate was posted by your "Visual Arts News Desk".

In closing, I'd simply repeat the suggestion in my 14 October email that you seek legal advice on this matter.

***** ***** <*****@******.***>
11:01 AM (8 hours ago)

to Maureen
As previously indicated, this is a user-generated, free content portion of the web site designed to allow our readers to submit local arts content, free of charge for both submitting and viewing without editorial approval, and under the DCMA that governs us as a US-based web site, it's the publisher's responsibility to remove as we have when notified of a violation as we did instantly.

There's no reasonable expectation that a photograph of a building would have not been the local reader's own image of that building.

And, as previously indicated, the image received 6 views, one would imagine 5 without yours so there has been no commercial exploitation, profits, or damages.

Ken Lussey <*****@******.***>
11:15 AM (7 hours ago)

to jason
Dear Mr Thompson

Your web site can be seen in Scotland; the content relates to Scotland; and the image belongs to someone resident in Scotland. It will doubtless be open to you to contest jurisdiction when this matter comes before our local Sheriff Court here in Livingston, but I am advised that your geographical location is no bar to our lodging the case here, nor to obtaining judgement in what is a very straightforward case of breach of copyright.

Expert:  JGM replied 12 months ago.
Tell them to go ahead and any action will be defended and expenses sought against them. You have no proposals to make.

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