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Author Topic: Simon Muirhead and Burton demand on behalf of Getty  (Read 18284 times)

philpotts99

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Simon Muirhead and Burton demand on behalf of Getty
« on: April 16, 2016, 04:31:35 AM »
So it seems we have been escalated to these good people from the debt collectors. The letter runs to several pages quoting case law and ends up with asking us for £420 plus £100 legal fees. Given the original demand was for £600 I suppose this is a result!

Anyone else been chased and how serious should I take it. Looks pretty threatening. Usual methods 7 days to pay otherwise proceedings may be taken.

The letter is signed off by a trainee solicitor who is a real person as she is profiled on their website.

Case law quoted

Alec Saville v Redrup Publications

John Walmsley v education Ltd

Henderson v all around the world recordings

We cannot argue we did not use the image as we did but it was up for less than a week when we realised the mistake but these cases seem horror stories designed to scare the xxxx out of you.

Any views?

the letter, by the way, runs to 21 pages :-X



« Last Edit: April 16, 2016, 05:01:49 AM by philpotts99 »

stinger

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Re: Simon Muirhead and Burton demand on behalf of Getty
« Reply #1 on: April 16, 2016, 01:49:44 PM »
Educate yourself on this web site.  Lots of people have been through what you are going through.  Get familiar.  Decide whether you want to fight or pay.  In the U.S., the law firm that came after me (mis) quoted lots of case law too.  I didn't want to pay the $50,000 that they wanted for forty some violations.  I didn't.  Only you can decide for yourself.  But get educated first.

geezer123

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Re: Simon Muirhead and Burton demand on behalf of Getty
« Reply #2 on: April 16, 2016, 02:56:11 PM »
Have you responded to them in anyway? Do they have your real name and some sort of idea if you are ready to settle....

As to the 3 cases they have quoted...... Firstly they have not brought any of the cases. I would have thought to have full frighteners effect, from their point of view it would be most beneficial if they were mentioned as the 'claimant'.

Alec Saville v Redrup Publications
http://www.thisisthewestcountry.co.uk/news/10926534.Copyright_breach_puts_Redrup_Publications_out_of_business/

Quote
A COMPANY boss went out of business after landing a huge bill for breaching copyrights belonging to a firm he once owned.

Jon Redrup put Redrup Publications into voluntary liquidation after a judge ordered his company to pay over £55,000 with the threat of an even bigger payout looming.

The judge ruled in the High Court that Mr Redrup reproduced large chunks of training manuals for care home staff from publications produced by Norton Fitzwarren-based Redcrier Publications, which he owned before selling it to Alec Seville.

Mr Recorder Alastair Wilson QC ordered Redrup Publications to make interim payments totalling £37,450 to Mr Seville and Redcrier for breaching the copyright with £18,029.25 towards their costs.

My bold. Yours is a single image infringement, this chap clearly took large amounts of material in breach and tried to fight the case.

Not really applicable to your case except in that case law applies and we already knew that.


John Walmsley v education Ltd
Full Judgement here.

http://www.turin-ip.com/course-documents/documents-2007/2013-edition/copyright/walmsley-v-education-ltd-in-wl-2014-2194626

Original claim was for £2468 plus costs for two images dated from 1968. Defendant admitted using them out of copyright. Appears 2 photo's were photocopied from a ladybird book, digitized and then placed on the internet, defendant downloaded them from a google images search but they were clearly a photograph of a print publication.

Claimant tried to claim breach of moral rights (which it appeared made up the bulk of the claim) which the judge dismisses at section 17, calling the actions of the defendant naive in believing anything found on google images was fair game.

Quote
17 Having said that, I do not think this is a flagrant breach for which it is appropriate for me to
order further damages for the following reasons. First, I do not think the Defendant's actions
show the element of intent or wilful negligence that is envisaged by the word “flagrant”. As I have
said, I think its actions and those of the employee were naive and possibly one might be unkind
enough to say pretty stupid, but I accept Ms Roberts' submissions that there was nothing more
than that and there is no other evidence to point to flagrancy. Secondly, the purpose of an award
of damages for copyright infringement is to compensate the copyright holder and put him in the
position that he would have been in but for the breach of his rights. The Claimant here is in the
business of creating photographs and selling licence fees in them and the Defendant's actions
have not, as far as I can judge, caused them to benefit from any financial windfall nor for the
Claimant's business to suffer more than in the normal course – the Defendant is not a competing
business for example. In saying that I bear in mind that the Defendant's publication of the images
was on a blog aimed at their students and not on their main commercial website. For those
reasons, I am not going to award further damages by way of an additional uplift on the licence
fee or otherwise and I consider the damages that I have already arrived at sufficient to
compensate the Claimant for the infringement suffered.

Judge did find for the claimant and awarded £1000 + vat + costs (as he did not specifically mention or award costs liability) it is reasonable to assume that each side bore their own costs.

Accidental use of a print publication image which the judge found as a strong mitigating factor.

Henderson v all around the world recordings
http://www.bailii.org/ew/cases/EWHC/IPEC/2014/3087.html

This case applies to song lyrics and loss of royalties so what it has to do with your case is anyone's guess.

Another case I came across whilst researching the cases quoted in your letter.

http://www.bailii.org/ew/cases/EWHC/IPEC/2015/2608.html

Is between a loft insulation firm and a home improvements undertaking. Concerns 21 photographs. The judge found that use of the 21 photo's was flagrant (a deliberate attempt to circumvent copyright) and awarded £6,000.00 (quite hefty damages) But:

1. No attempt to remove them was made prior to the claimants 'letter before action'.
2. Case revolved around deliberate use and it was clear that the defendant's company had won work and expanded his business off the back of the use of the photographs.

Judge awarded damages on the basis of these two points which almost certainly do not apply to your case.

To summarize.

1. None of these cases were brought by Getty or LCS.
2. They all appear to have been brought by the original holders of the copyright under dispute.

In the UK only copyright holders or those 'holding an exclusive copyright licence, called the exclusive licensee'. Does Getty or LCS or whatever else they are calling themselves this week hold this exclusive licence in the image (yours) in question. If they do not they cannot bring action against you.

See this valuable resource published by UK citizens Advice.
https://www.citizensadvice.org.uk/consumer/copyright/the-internet-filesharing-and-copyright/if-you-re-accused-of-online-copyright-infringement/

Doesn't stop them sending 'phishing' letters' though. If only one in twenty pay up it's still a result for them.

End of the day it is your call. As has been said by @Stinger in the post before this one the more information at your fingertips the more informed you will be.

I am at the very early process of this I only got an email last week alleging infringement of one PA image which I immediately took down. I made no contact with them nor do I intend to do so. I expect I will also get a letter some time next week but am right at the start of the process.

Some years ago I was caught 3 miles over the speed limit by a LTI20/20 argued the toss on a point of law (which at that time was still to be settled at the EctHR). Was convicted of speeding at the magistrates court and fined £120 with 3 points. Appealed the case (on the point of law) up to the High Court in London.
It was at that time I got used to reading court judgements and appreciating what was reasonable behaviour on all sides. I (and a lot of others) eventually lost the case as per the EctHR ruling and thought I was going to get clobbered by costs. It turned out that as I had researched my case and had laid a coherent written argument the learned judges waived any costs liable on my part. All in all the case cost me £120 and 3 penalty points but the experience I gained of the UK legal system was invaluable, plus the fact I learned to drive a tad slower.


Bottom line is yes someone has a case and can probably sue you for damages.

That may not be Getty/LCS though.

Your infringement may be so small time so as not to waste the Courts time. There exists such a thing in UK law of malicious intent in court proceedings. If for example someone was to chase you for a single image with a licensing value of say £99.00 for many thousands of pounds damages, I suspect a judge would take a pretty dim view of it and call it malicious. Particularly if at the end of the day you are able to convince the judge the breach was naive and purely accidental.

As I say mate at the end of the day it is your call. We are all here to support each other.....










philpotts99

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Re: Simon Muirhead and Burton demand on behalf of Getty
« Reply #3 on: April 17, 2016, 11:26:04 AM »
Geezer123

Thank you for this response it is really appreciated. Still seem to have the good folk of Atradius after us as well so maybe have some fun with both of them. The solicitors want £420 plus£100 legal costs. Atradius want £600.

geezer123

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Re: Simon Muirhead and Burton demand on behalf of Getty
« Reply #4 on: April 17, 2016, 01:29:54 PM »
That's interesting.

On what basis does the solicitor come to the conclusion you owe them? You have not instructed them. Seems to me they want part of the  extortion action.

Can you quote verbatim exactly how they have requested this fee (redacting personal stuff of course). Perhaps there is scope for a complaint to the Law society... Was it addressed to you personally?

Edit to add. This may be of some use and clarify the position. Although of course in no way should these sums being extorted be regarded as debts.

https://www.nationaldebtline.org/EW/factsheets/Pages/03%20EW%20Harassment%20by%20creditors%20and%20debt%20collectors/Default.aspx

Quote
Communication
Information:
what the FCA says
"A firm must...communicate information...in a way which is clear, fair and not misleading."

Principle 7, Principles for Businesses
This includes:

sending letters that look like court claims;
not making it clear who the company is or what their role is;
using unhelpful legal language;
not giving balance statements about the debt when asked;
not letting you know the outcome if you have disputed or queried the debt;
contacting you at unreasonable times even when asked not to; and
asking you to contact them on premium rate phone numbers.
« Last Edit: April 17, 2016, 02:00:06 PM by geezer123 »

philpotts99

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Re: Simon Muirhead and Burton demand on behalf of Getty
« Reply #5 on: April 19, 2016, 05:39:45 AM »
What a time for scanner to pack up!!!

Have quoted the final bits of the letter after the first 2 pages quoting case law. The ed missing from review is their typo not mine! The original letter from Getty was after £600 not £420. Debt collecting clowns also wanted £600.

The image was taken down as soon as we realised the mistake had been made and was up for less than a week. All of this explained to Getty but despite their insistence they have tried to settle this amicably the language used in all correspondence has been one of threats and intimidation in my opinion.

I quote from the letter verbatim apart from including their bank details helpfully inserted for quick payment.

"The costs incurred by our client at this stage are irrelevant and will be a matter for the court at the Case Management Centre

Without prejudice to its rights Getty Images has review the case and will now settle this matter on the following terms at this pre action stage

a)payment of £420 and
b)payment of £100 legal costs

Accordingly as you have been on notice since Getty Images first letter of 3 December 2015 the total amount of £520 should be remitted within 7 days to the following account


You must now respond to us within 7 days i.e by 22nd April 2016. If you make the above payment of £520 and cease to use the image then our clients will treat this matter as closed. If you do not respond to us take this letter as notice we are instructed to issue and serve proceedings on you.

If proceedings are served against you and our clients are successful in their claim please be aware we will seek damages with added interest and you may also potentially be liable to pay our clients legal costs of the entire proceedings. We may also claim additional damages under Article 13(1)(a) of the directive on the enforcement of intellectual property rights (2004/48/EC and/or section 97(2) of the CPDA

geezer123

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Re: Simon Muirhead and Burton demand on behalf of Getty
« Reply #6 on: April 19, 2016, 06:19:37 AM »
It's all worded in such a way to put you under extreme pressure and force you to pay sorry settle......

End of the day it is up to you how you want to proceed but if I thought they were serious about proceeding a matter to court over a single image infringment and had the authority to do so holding exclusive rights I would consider cutting their legs off at the knees and make them a Part 36 offer.

UK Citizens Advice is a wealth of information on this subject... Have a good read through.

https://www.citizensadvice.org.uk/consumer/copyright/the-internet-filesharing-and-copyright/

Edit to add...

Not sure if yours is a PA image (mine certainly is) so on that basis I researched it. I checked your other thread but I thought I read it somewhere.

My image was NOT for sale on the Getty portal but WAS for sale on the PA portal. This IMHO calls into much doubt LCS/Getty's claim that they have exclusive copyright.

In addition the Press Association terms and conditions regarding purchasing a licence...   https://www.paimages.co.uk/assets/docs/terms/ecommerce_terms_editorial.pdf

Quote
1. Ownership of the PA Material
1.1 The Website is owned and operated by PA.
1.2 The PA Material is owned by PA or its licensors.
1.3 The PA Material and all related rights shall remain the exclusive property of PA and its licensors.

Seems to me that as far as Getty/LCS claiming rights on PA images that section 1.3 nails it.

Incidentally I priced my image up on the PA website for a 5 year+ licence and it came to £90.00. I believe in fair use of intellectual rights so I might just purchase it and tell Gatty/LCS to go and get stuffed.

It is for them to prove you do not have a licence, not for you to prove that you do....



« Last Edit: April 19, 2016, 06:53:49 AM by geezer123 »

philpotts99

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Re: Simon Muirhead and Burton demand on behalf of Getty
« Reply #7 on: April 27, 2016, 12:50:11 PM »
And duly received the claim form for the small claims court. Give them their due they are efficient. Getty using their Seattle address so big American company bullying little English company into submission.

geezer123

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Re: Simon Muirhead and Burton demand on behalf of Getty
« Reply #8 on: April 28, 2016, 03:47:50 AM »
Claim form?

What do you mean Summons to appear? Which court address are they using..

philpotts99

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Re: Simon Muirhead and Burton demand on behalf of Getty
« Reply #9 on: April 28, 2016, 04:34:14 AM »
Chancery Lane London
If we want to settle we need to pay in person to the address on the claim form. Seattle!

geezer123

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Re: Simon Muirhead and Burton demand on behalf of Getty
« Reply #10 on: April 28, 2016, 05:18:15 AM »
Am assuming it is this form?

http://hmcts.s3-eu-west-1.amazonaws.com/Forms/n001-eng.pdf

With the Guidance notes of

http://hmcts.s3-eu-west-1.amazonaws.com/Forms/ex302-eng.pdf

Did you ever establish if Getty had exclusive copyright on the image(s) you are supposed to have offended with.

Now would be a reasonable time to ask them to provide evidence of such....

Read through the notes at the link. The court expects every party to take every opportunity to settle this out of court. Seems to me you have already taken a step in that direction.

Quote
Do I have to take my claim to court?
No. Going to court should always be a last resort. It can be expensive, stressful and can take
a lot of time.
Before going to court, you should try to find an agreement in another way, for example by:
• negotiating an agreement direct with the person or organisation;
• involving an ombudsman who can act as an independent referee;
• using a mediator to help you and the other person to find a solution;
• involving an arbitrator who will make a binding decision that will solve the
problem; or
• contacting a regulator who can help you deal with issues to do with landlines and
mobile phones, the internet, and water and domestic energy supplies such as gas
and electricity.
Using an alternative way may solve your problem more quickly and cost you less. It might
also give you a better, longer-lasting solution to your problem.
Remember, you are expected to find another way of reaching an agreement before
taking your claim to court. Otherwise, the court might decide that you will not get
your costs back or that you should pay the other side’s (defendants) costs, even if you
win the case.

philpotts99

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Re: Simon Muirhead and Burton demand on behalf of Getty
« Reply #11 on: April 28, 2016, 07:56:02 AM »
It is a small claims and is Getty and the photographer jointly both citing USA addresses.

Decided to defend on the basis of the unreasonableness of the demand, the threatening and harassing nature of the past few months from all the various parties associated with this and ask the court to decide what we should pay on the basis we made an offer to meet half way which was rejected.

geezer123

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Re: Simon Muirhead and Burton demand on behalf of Getty
« Reply #12 on: April 28, 2016, 02:00:56 PM »
As I understand it, the claimant has to justify their demand and the Citizens advice exemplifies this.

They cannot just pluck a notional figure and say that sounds right they have to break it down. If you can find the image for sale on their website then a screengrab showing the actual cost of a licence can only be beneficial to your defence.

Having read through these pages it seems Getty are making an example (or attempting too) and unlucky as it sounds this is you. Interesting though that they have decided to go down the small claims route as this may well hinder what they can claim and now having named the figure it cannot be 'inflated'.

Small claims is designed to be a simple supposedly stress free route to settle civil claims and persons shouldn't be afraid of the experience.

Citizens advice have a whole section on the procedure at such courts and I suspect you have already read it.

https://www.citizensadvice.org.uk/law-and-rights/legal-system/taking-legal-action/small-claims/

At first glance a couple of things could well stand in your favour..

Are you in London? I hope you live in Inverness and can apply to have the case transferred there..   :)

Quote
Any money claim must be issued at the County Court Money Claims Centre. Other cases can be issued in the local county court.

The court will then transfer the case automatically to the defendant’s nearest county court if:

the case is defended, and
the claim is for a fixed amount, and
the defendant is an individual, not a company.
In other cases, either party can ask for the case to be transferred to another county court.
My bold....

Quote
In most cases, the court will not order solicitors’ costs to be paid by the losing party in a small claims case, and if you instruct a solicitor you will have to pay the costs yourself. For this reason most claimants deal with a small claim without the help of a solicitor. It is possible to have the help of a friend or ‘lay representative’, for example, some Citizens Advice Bureaux can offer trained advisers to help people with small claims.

Glad to hear you are going to contest the action. I wonder if Getty have worked out that by the time they get to the end of this it will have cost them a lot more than £420.00 not including the £100 legals which by the sounds of it they are not entitled to claim anyway...

Speculative invoicing, unreasonable, threatening and harassing demands needs to be confronted. The Judge I think will not be amused of the bullying tactics as you have pointed out. Whilst they may have a copyright infringement case they do not have the right to 'put the frighteners' on to extract payment.

Good luck and please keep us informed as to how you get on...


philpotts99

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Re: Simon Muirhead and Burton demand on behalf of Getty
« Reply #13 on: May 05, 2016, 07:03:09 PM »
Thank you for your support and comments but just not worth it.  If you could see the amount of effort put in by the solicitors for less than £500 on behalf of Getty then would just hope the solicitors are charging them by the page our count on 2 letters rand to 33 pages!

Along the way have managed to get up the noses of a couple of fancy titled execs at Getty UK, debt collectors and solicitors so had some fun and almost got value for money!!! :D






 
 

geezer123

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Re: Simon Muirhead and Burton demand on behalf of Getty
« Reply #14 on: May 06, 2016, 06:40:38 AM »
Thank you for your support and comments but just not worth it.  If you could see the amount of effort put in by the solicitors for less than £500 on behalf of Getty then would just hope the solicitors are charging them by the page our count on 2 letters rand to 33 pages!

Along the way have managed to get up the noses of a couple of fancy titled execs at Getty UK, debt collectors and solicitors so had some fun and almost got value for money!!! :D

Oh well, kudos for at least having a go......I suspect you were the Guinea Pig to be tested in the small claims so they could use your case on future extortion correspondence.

I am up to two emails and two letters now. I shall completely ignore them right up to the point when the small claims paperwork comes through and then tell them I will present the licence in court....... 8)

 

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