CDPA 1988: how UK image infringement claims work

Most UK businesses first encounter copyright enforcement not through a court claim but through a demand letter from an image agency. The underlying law in every case is the same: the Copyright, Designs and Patents Act 1988 (CDPA). Understanding how that statute works gives businesses the framework to assess settlement demands, identify valid defences and make informed decisions about whether to pay, negotiate or dispute.

For a technical scan that identifies images on your site that may lack licences, run a free scan at /uk/en/scan.

How CDPA 1988 applies to website images

Copyright in a photograph subsists automatically when the image is created, under section 1(1)(a) of the CDPA 1988. No registration is required. The author is the person who creates the work. For agency photographs, the copyright is typically assigned to or licensed exclusively to the agency.

Section 16 of the CDPA defines the acts restricted by copyright. For a literary, dramatic, musical or artistic work (which includes photographs), the copyright holder has the exclusive right to: copy the work, issue copies to the public, communicate the work to the public and make an adaptation.

Section 17 defines copying to include reproducing the work in any material form, including storing it electronically. Uploading an image to a website is copying under section 17. Displaying it on a webpage communicates it to the public under section 20. Both acts require the copyright holder's permission.

Infringement does not require the user to have known the image was protected. Section 97(1) provides that the court may reduce damages where the defendant was unaware and had no reasonable grounds for suspecting that copyright subsisted, but this is a damages reduction, not a defence to liability.

<div className="my-6 overflow-x-auto"> <table className="w-full border-collapse text-sm"> <thead> <tr className="bg-slate-100 text-left"> <th className="border border-slate-300 px-3 py-2 font-semibold">CDPA section</th> <th className="border border-slate-300 px-3 py-2 font-semibold">What it does</th> <th className="border border-slate-300 px-3 py-2 font-semibold">When it bites on a website image</th> </tr> </thead> <tbody> <tr> <td className="border border-slate-300 px-3 py-2 font-semibold">s.1(1)(a)</td> <td className="border border-slate-300 px-3 py-2">Photographs are artistic works, copyright on creation</td> <td className="border border-slate-300 px-3 py-2">No registration required. Every image has copyright by default.</td> </tr> <tr className="bg-slate-50"> <td className="border border-slate-300 px-3 py-2 font-semibold">s.16</td> <td className="border border-slate-300 px-3 py-2">Defines acts restricted by copyright</td> <td className="border border-slate-300 px-3 py-2">Copying, communicating to the public, adaptation all require permission.</td> </tr> <tr> <td className="border border-slate-300 px-3 py-2 font-semibold">s.17</td> <td className="border border-slate-300 px-3 py-2">Copying includes electronic storage</td> <td className="border border-slate-300 px-3 py-2">Uploading an image to a server is copying.</td> </tr> <tr className="bg-slate-50"> <td className="border border-slate-300 px-3 py-2 font-semibold">s.20</td> <td className="border border-slate-300 px-3 py-2">Communication to the public</td> <td className="border border-slate-300 px-3 py-2">Displaying an image on a public page is communication to the public.</td> </tr> <tr> <td className="border border-slate-300 px-3 py-2 font-semibold">s.96</td> <td className="border border-slate-300 px-3 py-2">Civil claim for damages plus other remedies</td> <td className="border border-slate-300 px-3 py-2">Notional licence fee is the default damages measure.</td> </tr> <tr className="bg-slate-50"> <td className="border border-slate-300 px-3 py-2 font-semibold">s.97(1)</td> <td className="border border-slate-300 px-3 py-2">Damages may be reduced if defendant was unaware</td> <td className="border border-slate-300 px-3 py-2">Reduces damages. Not a liability defence.</td> </tr> <tr> <td className="border border-slate-300 px-3 py-2 font-semibold">s.97(2)</td> <td className="border border-slate-300 px-3 py-2">Additional damages for flagrant infringement or benefit</td> <td className="border border-slate-300 px-3 py-2">Triggers on continued use after notice or deliberate commercial taking.</td> </tr> <tr className="bg-slate-50"> <td className="border border-slate-300 px-3 py-2 font-semibold">Limitation Act 1980 s.2</td> <td className="border border-slate-300 px-3 py-2">Six-year limitation period</td> <td className="border border-slate-300 px-3 py-2">Continuing display is a fresh act each day. Six years of use always recoverable.</td> </tr> </tbody> </table> </div>

Damages framework under sections 96 and 97

Section 96 of the CDPA provides that infringement is actionable by the copyright owner. The court may award damages, an account of profits and other remedies.

The starting point for damages in image cases is the notional licence fee: the fee the copyright holder would have charged for a licence for the same use. This is what the infringer should have paid. IPEC and the High Court apply this approach consistently in UK image infringement claims.

Section 97(2) permits the court to award additional damages where infringement was particularly flagrant or the infringer received a benefit from it. In Sheldon v Daybrook House Promotions [2013] EWPCC 26, the court awarded additional damages under section 97(2) where the defendant continued infringing after receiving a demand letter. In Henderson v All Around the World Recordings [2014] EWHC 3087 (IPEC), additional damages were awarded for sustained infringement where the defendant had been aware of the issue.

Additional damages under section 97(2) can significantly exceed the notional licence fee. The benchmark cases suggest that continued infringement after notice or deliberate taking of a valuable image knowing it required a licence, attracts additional damages of one to three times the notional licence fee on top of the base damages.

<div className="my-6 overflow-x-auto"> <table className="w-full border-collapse text-sm"> <thead> <tr className="bg-slate-100 text-left"> <th className="border border-slate-300 px-3 py-2 font-semibold">Case</th> <th className="border border-slate-300 px-3 py-2 font-semibold">Facts</th> <th className="border border-slate-300 px-3 py-2 font-semibold">Base damages</th> <th className="border border-slate-300 px-3 py-2 font-semibold">s.97(2) additional damages</th> </tr> </thead> <tbody> <tr> <td className="border border-slate-300 px-3 py-2 font-semibold">Sheldon v Daybrook House Promotions [2013] EWPCC 26</td> <td className="border border-slate-300 px-3 py-2">Nightclub used a photograph of Ke$ha and LMFAO without licence</td> <td className="border border-slate-300 px-3 py-2">£5,682.37 (user-principle)</td> <td className="border border-slate-300 px-3 py-2">Awarded for continued use after demand letter</td> </tr> <tr className="bg-slate-50"> <td className="border border-slate-300 px-3 py-2 font-semibold">Absolute Lofts South West London v Artisan Home Improvements [2015] EWHC 2608 (IPEC)</td> <td className="border border-slate-300 px-3 py-2">21 loft-conversion photographs reused without licence</td> <td className="border border-slate-300 px-3 py-2">£300 (user-principle)</td> <td className="border border-slate-300 px-3 py-2"><strong>£6,000</strong> for flagrancy. Main quantum driver.</td> </tr> <tr> <td className="border border-slate-300 px-3 py-2 font-semibold">Henderson v All Around the World Recordings [2014] EWHC 3087 (IPEC)</td> <td className="border border-slate-300 px-3 py-2">Sustained infringement after defendant was on notice</td> <td className="border border-slate-300 px-3 py-2">Notional licence fee</td> <td className="border border-slate-300 px-3 py-2">Awarded for continued use after awareness</td> </tr> </tbody> </table> </div>

How UK courts calculate the notional licence fee

In Absolute Lofts South West v Artisan Home Improvements [2015] EWHC 2608 (IPEC), the court considered the quantum of damages for architectural photograph infringement. The court assessed the licence fee by reference to the claimant's actual pricing for equivalent uses, market rates for similar images and the nature and duration of the defendant's use.

For stock-agency images (Getty, Shutterstock, AP, Reuters), the notional licence fee is typically assessed against the agency's published pricing for the specific type of licence the defendant should have obtained. A web editorial licence for a news image is priced differently from a commercial advertising licence for the same image. Courts assess which licence category the defendant's actual use fell into and use that pricing.

Duration of use matters significantly. An image used for one day has a materially different licence value than one used for three years on a commercial website. Agencies typically seek the full-period licence fee for the entire duration of infringing use, sometimes with a retroactive uplift for the lack of the early licensing opportunity.

Defences under the CDPA

Several defences under the CDPA may be available depending on the specific facts.

Fair dealing for reporting current events under section 30(2) permits use of a copyright work for the purpose of reporting current events, provided the work is accompanied by a sufficient acknowledgment. This defence does not apply to photographs for the purpose of reporting current events.

Fair dealing for criticism, review and quotation under section 30(1) permits use of a work for the purpose of criticism or review, again with acknowledgment. The use must be fair (limited to what is necessary) and the work must have been lawfully made available. This defence rarely applies to commercial website image use.

Public domain: works where the copyright has expired are not protected. Copyright in photographs lasts for the life of the author plus 70 years. A 19th-century photograph may be public domain, but a modern reproduction photograph of a public-domain work may itself have copyright.

Valid licence: the defendant holds or held a valid licence for the use. This requires evidence: a purchase receipt, a download confirmation, a licence agreement. Many small businesses use images from sites like Unsplash or Pixabay under Creative Commons licences and later discover the image was also available commercially from an agency. The questions are whether the specific Creative Commons licence was genuine, whether it was authorised by the rights-holder and whether the terms of use on the source platform accurately reflected the underlying licence.

Practical risk assessment

For businesses receiving demand letters, three questions determine the appropriate response: does the claiming agency actually represent the rights-holder (verifiable from the image's metadata and the agency's catalogue), is the claimed infringement genuine (is the image on the site and was it there when claimed) and what is the realistic damages range.

For a stock agency image used commercially on a business website, the notional licence fee for a 1-3 year commercial web licence from major agencies typically ranges from £200 to £1,500 depending on the image and the usage type. Settlement demands from agencies often start significantly above this base range, building in an uplift for enforcement costs, time spent on investigation and correspondence and in some cases a punitive element for unpermitted use. Initial demand amounts are not the same as a realistic litigation outcome and are typically negotiable.

The 6-year limitation period

Section 2 of the Limitation Act 1980 applies a 6-year limitation period to copyright infringement claims, running from the date of each infringing act. For a continuously displayed website image, each day of display is a separate infringing act and a separate cause of action. The 6-year period applies to each act individually.

In practice this means: an image that has been on a website for 10 years can be the subject of a claim for the most recent 6 years of infringing use. The rights-holder cannot recover for the first 4 years, but the subsequent 6 are fully in time.

When a website is materially redesigned and relaunched, the courts treat this as a new publication of the content. A redesign that deliberately re-incorporates known infringing images can restart the limitation clock and potentially attract additional damages under section 97(2) as a flagrant act after notice.

The limitation point is often raised by defendants in IPEC proceedings to reduce the damages base. Rights-holders respond by arguing that continuing use within the limitation period is sufficient and that the defendant cannot take advantage of past infringing use to reduce the licence fee for recent use.

Where claims are brought: IPEC vs High Court

The Intellectual Property Enterprise Court (IPEC), part of the Business and Property Courts, handles most SMB-level copyright claims. On its multi-track, IPEC has a recoverable costs cap of £50,000 and a damages cap of £500,000 per claim. The small claims track within IPEC caps damages at £10,000. These caps make it the practical venue for agency enforcement of commercial image claims against businesses.

The High Court's Intellectual Property List handles higher-value or more complex claims: where damages are likely to exceed £500,000, where there are multi-party issues or where the case raises significant novel legal questions. Very few SMB-level image infringement claims reach the High Court.

The IPEC's compact procedure, with directions hearings and short trials, means cases can progress from issue to judgment in 9 to 15 months. This timeline is relevant for businesses considering whether to contest a claim: contesting has a defined time and cost horizon, unlike protracted uncertainty.

The IPEC does not require the parties to instruct solicitors, though the majority of represented parties do, particularly at the hearing stage. For a disputed claim with a damages exposure above £5,000 or any legal complexity around ownership or licence, obtaining legal advice before filing or responding is standard practice.

For how to respond to specific demand letters, see received a PicRights letter in the UK and received a Getty Images UK letter.

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This is technical analysis, not legal advice. Consult a solicitor for specific guidance on copyright claims.