The answer to this ought to be straightforward, the publisher is the party who commits the infringement.

However publishers often do not accept responsibility, and will blame the problem on a web or graphic designer whose services they have used. This may even be true, the publisher may have no idea that his site is displaying your work without permission.

Do not be diverted into chasing the designer or whoever the publisher claims is responsible. Legally your claim is with the publisher. They may in turn have a claim against their designer, but that is not your concern or problem. You will only end up being the victim of both whilst they squabble about whose fault it is.

Google is your friend. If you are dealing with infringement by a print publication you will likely be able to locate the publisher's registered office easily enough. Try to find out who the editor or publisher is so you can pursue the named individual.

Where web infringements are concerned, it is often easy to trace the domain owner using a WHOIS lookup. There is a WHOIS tool right here.

We recommend all communications with infringers be in writing and that you post your letter using Recorded Delivery. It is amazing how often such letters otherwise allegedly go astray. Email is also susceptible to loss and denial. Requiring a receipt only works if the recipient allows it.

The first thing to do is to get evidence of the infringement. If your work has been used without permission, get a copy of the publication. If the infringement is on the web, print out the pages that display your image along with enough information to positively identify the site and date. The next thing to do is to identify the infringer. You are then in a position to contact them and take the matter further. How you do all this and what outcome you may be able to achieve will likely depend on the extent and context of their infringement. Many factors may apply. Are they passing your work off as their own, or is it credited to you? Is the metadata intact or has it been altered? Is their usage personal or commercial? Whereabouts are they located? Broadly your choices are:

• You can insist that they remove the image immediately.
• You can offer to supply a retrospective licence on payment of a fee, to legiitimise the infringing use. Plus a further fee for agreed future use, if appropriate.
• You can commence legal proceedings against them for infringement of your copyright.
• You can forget it and give up

When claiming payment from an infringer it's advisable to think through the possible outcomes when considering how much to charge. The infringer has forfeit the right to negotiate price by using without permission, so within reason you can charge what you like. However you want them to settle early and easily, to avoid the expense, complication, delay and uncertainty of court action. Therefore how much you charge ultimately has to be defensible in court, but reduced sufficiently to encourage them to settle.

If you were to sue in a UK court, the damages for infringement would be based upon the market value of the use that the infringer has made of your work, increased perhaps by an amount that the court deems appropriate for flagrancy of the abuse. UK courts are restrained about this, unlike the US where punitive multipliers of up to 70x are applied for infringements against registered works. UK damages are closer to the US case for unregistered works, which are limited to 2x the lost revenue.

What this means is that the more flagrant the infringement and the better your evidence the more you can charge, but probably it should be no more than 2 or 3x the going rate.

If you win the case you would normally also win your costs from the infringer. So these costs can also be factored into your proposed settlement figure.

Because market value is central to damages, you will have to convince the court that the value you place upon your work is realistic. The other side will almost certainly try to challenge your valuation. For that reason you have to stay close to 'the going rate' unless you can prove that the work had exceptional value, either because you are able to command exceptional rates or the work itself is rare or exclusive or has required unusual skill and effort. If you are able to produce proof of previous sales at higher rates, so much the better.

So you need to base what you charge on the going rate, adjusted for any special considerations. Useful resources for finding out rates are the price calculators at Alamy and Getty photolibraries (you will need to register with these), and the NUJ Freelance Fees Guide (accessible to anyone).

NB: if you have a lot of work placed with microstock libraries charging (say) $1 per Royalty Free image, you have shot yourself in the foot here. Since you have established your going rate is $1, infringements are simply not worth pursuing.

Your final price will therefore be a calculation based on all of the above. This may of course be sufficiently high that the infringer will likely baulk at your offer of a retrospective license. A proven tactical device is to offer a sizeable discount for early settlement, say 30% off for settlement within 7 days.

Retrospective licenses may be offered as a way to legitimise unauthorised use after the fact. For example, if you see your work used without permission somewhere, you may wish to offer a retrospective license to cover the period of infringing use in return for a fee, as an alternative to taking legal action for copyright infringement.

This provides a quick and easy resolution provided the infringer accepts the proposal and pays the fee.

It can be. Copyright law in UK allows for criminal prosecution where there is deliberate intent or passing-off in a commercial context. However the difficulty of proving intent and the higher standard of proof ('beyond reasonable doubt') required for a criminal prosecution means that copyright infringement is almost always dealt with as a civil procedure with the aim of recovering damages.

Damages in a civil case are tied to the provable losses of the plaintiff plus the costs of the legal action. Civil courts do not act to punish, simply to restore a wrong situation. In theory damages can be increased to take account of flagrancy of abuse but generally the courts will award pretty much the fee that should have been paid for legitimate use.

There is no concept of punitive damages in UK copyright law, unlike the USA where damages can be very substantial for registered works. UK law is clearly only a weak deterrent to infringers as the worst that can happen is that they pay little more than if they had licensed legitimately. Since much of the time their infringements will go undetected, on balance it is sound business sense to be lax about obtaining permission.

This goes some way to explain why infringement is systemic among UK publishers. Although they will invariably explain instances as isolated mistakes, there is little motivation for them to take reasonable care and substantial benefit if they can get away with it much of the time. The practice is so widespread that this can only be a matter of deliberate policy, and the intentional nature means that criminal offences are being routinely committed by publishers, confident that they will invariably escape prosecution. It's a disgraceful way to run an industry.

Criminal copyright prosecution allows for imprisonment and fines, and infringing goods may be seized. It is important to understand that even if a criminal prosecution succeeds, a separate civil case will be necessary to recover financial losses caused by the infringement.

It is not the best idea to approach the average High St. solicitor with a copyright dispute, since it is a specialist area of law. It's preferable to use a firm that has expertise in intellectual property, who may be found via the Law Society. Alternatively, ask in our copyright advice forum, we may be able to suggest suitable lawyers as we know a few veterans of infringement recovery.

NUJ members are reminded that it is now Union policy to provide legal assistance in copyright cases.

What you can do, if anything, depends on circumstances.

As with any infringer, the hope is that negotiation and commonsense or threats, will prevail, avoiding the costs and risks of legal action. However it's best to know what is possible so you can adopt a measured and realistic response.

The best situation is that the infringer has local offices and assets in the UK. If that is the situation, they are accessible to UK courts.

If the infringement is a web publication it can be useful to approach the ISP to deal with an evasive infringer. Overseas ISP's may have parents in UK, and one large infringement was dealt with by approaching the UK parent of an Indian hosting company, resulting in the site being removed from Indian servers.

If the infringer is using GoogleAds, you may be able to have their account cancelled, thereby depriving them of revenue. Google's IP policy provides a mechanism for doing this, although it is quite laborious. 

If the infringer is located in the USA and the work is registered with the US Copyright Office, you should not find it too difficult to locate a US attorney who will take your case through the US courts on a contingency fee basis. If it's an unregistered work, they won't be interested because it isn't likely to be financially rewarding to try and recover damages. You can however get a US attorney to apply for a take-down notice under the Digital Millenium Copyright Act (DMCA).

One thing to watch out for is that 'fair use' in USA extends to any educational use, and you will have no success against US schools and universities using your work for any purpose they wish.

There are also esoteric legal arguments surrounding what comprises 'commercial' use. In the USA editorial use is often distinguished from commercial use, because the press is protected as a constitutional freedom. In the last year or so this has given rise to an argument that press use is a constitutional obligation, therefore is not commercial and hence is fair use. This seems crazy because press publishing is commercial, done for profit, and they don't give away their product or copyright. The debate continues and is best ignored : until a test case has established otherwise they owe you the money.

Infringers in EC countries should become much easier to get at from January 2009, when the cross-border pursuit of damages will become available from any EC country rather than having to take action within the infringer's national jurisdiction. The process promises to be little more difficult than current Small Claims procedures within UK, with the facility to initiate online. If you suffer an EC infringement it seems likely to be worth waiting until next year to take action. We will report more on this as the details become clearer.

Elsewhere in the world you have little choice except to find a lawyer within the home country of the infringer and pay them to take legal action locally. This can bring you into contact with legal professionals and processes that will test your patience and wallet, so is best reserved for serious infringements where large sums of money are at stake.

In some cases local photographer or journalist trades unions may be able to advise or assist, and have done in Australia and Canada in particular. You probably want to start by asking the advice of your own TU or other professional organisation, if you have one. Similarly approaching the trade commission or bureau of embassies can assist. Some countries are sensitive about their trading reputation and will at least offer advice on how to resolve the situation. Others will sound sympathetic (or not) and show you the door.

Being realistic is essential. In many instances, your loss of income will be far exceeded by the costs of attempted recovery, and even if you win a judgement, enforcing it against people who have few or no assets and are thousands of miles away. Trying to get your £15 from 'What Yurt?' in Ulan Bator will simply not be worthwhile.

Having said that, it is essential to at least try and get the offending material removed and ensure that the infringer knows they owe you money. If you simply ignore infringement, you potentially weaken any future case for damages within the UK against some other infringer. If your failure to assert your copyright comes to light the argument could be made that you are simply now taking advantage of the court to demand money for images you had previously allowed to be used for free.