We harp on about copyright infringement all the time. This is because these types of claims are happening regularly.
We try to raise awareness and share what can be done to prevent accusations of copyright infringement from occurring in the first place, but sometimes a photo slips through the crack and is used in a capacity that’s unlawful.
The £2000 mistake
A copyright-savvy digital marketer received an unauthorised use of image letter from an image theft protection website for a photo they’d used in a blog post. The freelancer was surprised. They were adamant they wouldn’t have used an image without the correct license given their solid understanding of copyright law.
Despite this, it was difficult to prove otherwise. They couldn’t find a license, proof of purchase or trace where they had originally sourced the image from.
An unauthorised use of image letter will usually include:
- an introduction to the copyright holder
- a link to where you’ve published their asset
- steps to resolve the matter
- a license fee to cover the period of unlicensed use
- a deadline to respond to the matter by
Unintentional copyright infringement is covered under your professional indemnity policy, so the freelance marketer immediately notified us.
The insurer wanted to understand a few things from the freelancer’s perspective before advising of next steps.
- The copyright holder was asking for £2000. Did the freelancer have a figure that they would be comfortable accepting?
- Had they profited from using the image at all?
- Were they able to immediately remove the image from the blog?
Insurance can be a collaborative process between the insurer and the freelancer, working with the freelancer to reach an outcome they are comfortable with.
Given the original image was still available to purchase, it was easy to work out how much the digital marketer would have owed if they’d bought a license. It was substantially lower than the £2000 the copyright holder was asking for, but this gave us a basis to negotiate.
The negotiation stage
When negotiating with the copyright holder it was important to be cooperative while minimising liability. The insurer felt they should:
- highlight that immediate action was taken to remove the image from the blog
- explain that the freelancer had never profited from the image
- note that it was unintentional. In fact, the freelancer still believes they sourced it lawfully but had been unable to locate their license
The insurer helped the freelancer make a counteroffer that felt fairer. This was made on a without prejudice basis, showing the freelancer was open to reaching a conclusion but with no admission of liability.
It took a few attempts to reach a settlement figure both parties were happy with. The final fee payable to the copyright holder was 90% lower than what had originally been asked!
We’d consider this a win.
Doesn’t insurance cover compensation?
Yes, it does. Let’s assume the initial offer of £2000 had been accepted by the freelancer and insurer. The insurer would have paid this amount minus the policy excess (that’s the freelancer’s contribution).
Because the image was removed from the blog post, had never been used for profit and the freelancer was certain they’d sourced it lawfully, everyone agreed the initial fee was steep. This lead to negotiations between the freelancer and copyright holder.
The revised figure was lower than the policy excess, which meant the insurer didn’t contribute anything monetary. Instead their involvement was limited to advice only. They helped the freelancer draft responses to the copyright holder and guided them to an outcome that felt fairer (and more affordable!) to them.
The freelancer had to pay the copyright holder, but it was a better outcome than had they accepted the original fee because their contribution was now lower than the policy excess.
A £168 policy has more than paid for itself
It’s interesting thinking of the alternative outcome if the marketer didn’t have insurance. The freelancer admitted they wouldn’t have had the confidence to negotiate with the copyright owner, nor would they have known what terminology to use to minimise their liability.
It’s very likely they’d be £2000 out of pocket, or perhaps more if they had sourced legal advice.
As copyright claims continue to escalate, it’s a good idea having processes in place to prevent them from happening. It’s also important to have insurance to assist you in the unfortunate event you are accused of copyright infringement.
