In a recent decision in the Royal Courts of Justice, Denecke Priess & Partner was able to secure a successful judgment for claimants (international photo-agency) in a copyright infringement lawsuit against defendant (website owner). In July 2016, the IPEC ruled that use of the photo online without a valid license from the copyright holder, qualified as copyright infringement under the Copyright, Designs and Patents Act 1988.
The photograph, of a pearl in an oyster shell, was found by defendant online without a photographer credit or a watermark. The photo was copied from an online search and used on defendant’s website section describing pearl jewelry - without first obtaining a copyright license for online use. defendant did not explain exactly where she found the photo or whether she researched the source of the image. Upon discovery, claimants contacted defendant with a notification letter of copyright infringement seeking compensation from prior use. Defendants removed the photograph upon notification but refused to compensate for prior use.
The case went to the small claims track of the Intellectual Property Enterprise Court, who, based on the facts presented, ruled in favor of claimants for total damages in excess of £1900. While this may seem like a small judgement. The ruling covered not only the requested license fees, but also the court and auxiliary costs from infringement notification to judgement!
Side note: Defendant’s attempt to assert the innocent use defense failed under Section 97 CDPA, because the defense is applicable only to the assessment of remedies (damages) and does not affect liability. Furthermore, under David Hoffman v Drug Abuse Resistance Education (UK) Ltd  EWPCC 2, defendant’s “innocent” acquisition of claimant’s photo online, was not sufficient to convince the court that it “had no reason to believe” that copyright existed in the infringed work. Rather, it was obvious enough to the court that a photograph, in itself, carries the presumption of copyright and by extension a copyright owner.
Denecke Priess & Partner represents photographers, photo agencies and content creators around the world. DPP offers quantitative solutions to protect image copyright from unauthorized use on internet. DPP provides resources such copyright registration, image detection, and enforcement options against infringement. DPP is headquartered in Berlin, Germany, with offices in Munich, Germany and Seattle, Washington, USA.
Mark Saku Bikangaga, Esq. Attorney-at-Law (Washington)