NAJ News

Web Images - What's the Law?

21 Aug 2018

Over the years a number of jewellery clients have complained to me that another business has used its images without permission, and what can be done about it? This usually involves a trade rival uploading photographs from your website to theirs, to promote their products without any prior request and accordingly without payment.

 

The owner of the images does have rights, and the mere fact that photographs etc, are posted online, does not mean they are fair game or free for use by all and sundry.

 

COPYRIGHT

The relevant intellectual property right is copyright. The taking of photographs and the creation of images, is artistic work (Section 4(1)(a) Copyright Designs Patents Act). The owner of the work is the person who took the photographs, thereby using their knowledge and skill to capture images using available natural and artificial lighting, surroundings, composition... If you use an external professional photographer (a commissioned

work) ensure that copyright in all the images is assigned to you, otherwise it remains with the photographer, as the author of the work.

 

Copyright is the right not to be copied. The reproduction of an internet image creates a copy of the original photograph (an authorised copy thereof) and that is an infringement. No third party can use such an image for commercial purposes without the copyright owner’s permission. Note, there are exceptions for private study and fair dealing (e.g. research, criticism or review, news reporting, etc). It’s not acceptable to take someone else’s image and change it, perhaps by reproducing in black and white, or by Photoshopping. This constitutes adapting the work and is unlawful (Section 16(1)(e) and Section 16(2) CDPA).

 

REMEDY

If your copyright image is infringed in any manner referred to above, you are entitled to require the infringer to immediately cease doing so, and they may be liable to you for damages if either they have made a profit from their unlawful use, or you have suffered loss by reason of what they have done. In the vast majority of instances, the civil remedy of damages is the relevant punishment. How much an infringer must pay depends on what commercial use has been made of the copied work, and how much profit earned. Where the image is owned by a photographic library or a like business, then the amount payable will be governed by the market rate for the grant of a licence (the compensatory award).

 

ADDITIONAL DAMAGES

By Section 97(2) CDPA, the Court may award additional damages if the infringement was flagrant and of benefit to the Defendant. In a recent case before the Intellectual Property Enterprise Court, the level of additional damages awarded was 2,000 per cent greater than the compensatory award!

 

PRACTICAL TIP

A requirement for the recovery of damages (but not account of profits) is that the infringer knew or had reason to believe that the images were subject to copyright (s.97(1) CPDA). To avoid uncertainty regarding this, one should always flag up or otherwise mark images as being the copyright of your business, and all websites should contain a declaration of ownership of intellectual property rights. Don’t be tempted to ‘borrow’ from somebody else’s website, since the probability is that any images are not ‘open source’ or otherwise free for all, and as mentioned above, the consequences may be significant indeed!

 

Our industry is a very visual one and social media, a web presence and e-commerce, means that good product photography is more vital than ever. However, it’s a tricky subject. Stephen Welfare of Royds Withy King explains the facts.

 

Copyright

If you don’t have access to your own photography, and have no budget to carry out a shoot, you could use stock images. Advertising agency, House Creative, recommends sites like Shutterstock or iStock, which have vast ranges of reasonably-priced, royalty-free images. For those on low/zero budgets, pexels.com also offers a range of great images that are free to use. Be aware that these images will quite often appear on other sites too, so may not give you the stand-out appeal that brands often need. Googling images is an absolute no-no, and could land you in trouble. Google will often serve images from other jewellers who have invested time and money on bespoke photography. Manufacturer images (if you can get them) are a safe bet.

 

You may even be able to combine manufacturer shots with royalty-free images to give your brand a unique look Stephen Welfare is a partner of the nationwide law firm, Royds Withy King. He operates the COPYWATCH® scheme on behalf of the NAJ.

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