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Kodakone asking payment for copyright infrigement

Posted: Thu Sep 03, 2020 11:45 pm
by scout1654
I received a letter form this company


Dear Sir or Madam,

We are writing to you with regards to an unlicensed use of our client’s work on your website. Alex Segre holds the exclusive rights to an image published on londonapartmentreservations.com for which they are unable to verify a license.

KODAKOne helps image users and rightsholders resolve the unauthorized use of copyrighted works by offering retroactive licensing as an alternative to legal dispute.

Ordinarily, copyright disputes are resolved between copyright lawyers and image users who find themselves in drawn-out discussions and settlement negotiations. Lacking the necessary legal expertise, this often leaves publishers subject to inflated settlements much higher than a standard license fee.

We understand that many image users online are not copyright experts. Our aim is to help rightsholders receive fair compensation and ensure image users are not over-burdened by large legal settlements. In this way, KODAKOne represents the interests of both parties to reach a swift, inexpensive, and fair resolution to copyright disputes.

Our innovative Post-Licensing service provides both parties with the tools and expertise to resolve such cases whilst minimizing the costs and time associated with copyright dispute. Rather than negotiating large settlements, we offer cost-effective retroactive licenses as the simplest solution.

Removal of the image(s) will not close this case. By purchasing a Post-License, you can immediately resolve the unlicensed use and bring this matter to a close. Please confirm so that we may prepare a final invoice for you which contains all the necessary details to make payment including a link to our online payment portal.

By acquiring a license, you are also helping to ensure photographers can receive fair pay for their work and keeping the creative economy alive.

The KODAKOne Post-licensing Team

I asked if they have the copyright for the photo - they replied
We have already provided the Authorization Letter, signed by our client, which sanctions us to detect unlicensed use of their work online and offer retroactive licensing on their behalf. Please see it attached again here for your convenience. Alex Segre's images are not copyright registered but this is not a requirement for their copyright to subsist in the work or for them to receive compensation as per UK law.

Same photo is for sale in shutterstock for 9.80 euros so I offered 15 euros
their reply - This image is not available for purchase on Shutterstock so the license rates you quote are not relevant with regards to this case. ( which is not correct)

they also say - To clarify, we are not offering a standard image license that can be purchased from Shutterstock, but offering a retroactive license which legalizes an infringement which has already occurred.

to summarise
- I have replied to their letters in a timely manner
- I have removed the photo in questions so there is no flagrancy
- This company is acting on behalf of the photographer - like a lawyer
- the fee demanded is exorbitant. ( 615,00 euros) How they arrived to this figure they ignored the question
- the photo is also for sale in shutterstock - first they said no it is not - I wrote with a page print and now they replied - we are not offering a standard image license that can be purchased from Shutterstock, but offering a retroactive license which legalizes an infringement which has already occurred.
Normally When a photographer signs up with a stock agency he or she will be required to assign
his rights to the agency and thus the agency can then take action against any alleged infringement. but in this case this company got involved

By the way, the photo in questions is the photo of Exterior of The Selfridges Store in London so it is a landmark and not a person
I hope somebody can help me on this
regards
Hakan

Re: Kodakone asking payment for copyright infrigement

Posted: Fri Sep 04, 2020 6:19 am
by AndyJ
Hi Hakan,

You have handled this well. You have done everything we would recommend, and based on what you have told us, you are in a strong position to fight this claim. The one thing you didn't mention was how long the image had been on your website. I assume that in making your counter offer you took the length of time into account.

This Post Licensing stuff is just smoke and mirrors. Under civil law the photographer would only be entitled to claim the actual fees he would have been entitled to had the image been correctly licensed in the first place, ie 9.80 euros times the length of time the image was in use. I can see no reason why any additional damages could be claimed. Clearly no-one in their right mind would try to go to court to recover such a small amount. 62 times the Shutterstock fee is clearly disproportionate and Mr Segre would have a hard time convincing a court that it was justified.

I am interested in why the "Post Licensing" fee is given in euros. Is your website based in another EU state (ie not the UK)? Alex Segre is based in London and as far as I am aware KODAKOne have a UK office, so I would have expected the fee to be calculated in pounds. It doesn't make any difference as far as dealing with the claim is concerned, but it just seems odd.

And just to deal with the matter of where KODAKOne fits into this legally speaking, anyone may use a claims management company in this way, in fact it is reminiscent of how various personal accident and PPI claims companies operated. For this they do not need to have been assigned the copyright. However it does mean that KODAKOne has no standing to act for the photographer in any court proceedings should that ever become necessary - as I have indicated, I think that is unlikely.

Re: Kodakone asking payment for copyright infrigement

Posted: Fri Sep 04, 2020 7:49 am
by scout1654
Thanks for your reply
Their claim is 619.00 euros - because the letter came from Germany rather than their London office. The photo as part of a holiday property in London just to show visitors, the famous landmarks in the vicinity and The Selfridges is one of them. It has been in the website about a year. I have seen somewhere , different copyright laws apply to a photo have a landmark in London as opposed to EU. Is this why, I wonder, the letter came from Germany?
Nevertheless, the offence has been made in UK and the photographer is also based in UK.
they have a signed letter from Alex Segre in English and German - to it looked like a scam first

ERMÄCHTIGUNG
Ich, ALEX SEGRE, erkläre hiermit Folgendes:
Ich besitze die exklusiven Rechte an den im Case Report
beschriebenen Medieninhalten.
Ich habe RYDE für diese Dienstleistungen ermächtigt
rückwirkende Lizenzen zu vergeben und
Rechtsdienstleister (Inkassounternehmen, Anwälte usw.)
mit der Durchsetzung von Verletzungsansprüchen und
der Einleitung von Verfahren/Rechtsverfahren im Falle
einer unlizensierten Nutzung der Medieninhalte zu
beauftragen.
Wenn ich in einer Gerichtsverhandlung als Zeuge
benannt werde, werde ich die oben genannten
Informationen bestätigen und werde auch alle
notwendigen Unterlagen einreichen, die die Entstehung
und Übertragung der Nutzungsrechte belegen und
beweisen.
LONDON, 08/06/20

AUTHORIZATION
I, ALEX SEGRE , hereby declare the following:
I am the exclusive Copyright Holder to the Media
Content described in the Case Report.
I have engaged in RYDE's services and authorize RYDE
to issue retroactive licenses and engage legal service
providers (debt collection companies, lawyers, etc.) to
enforce infringement claims and initiate
proceedings/legal action in the event of unlicensed use
of the Media Content.
If I am named as a witness in a court hearing, I am able
to confirm the above information and will also submit all
necessary documents that demonstrate and prove the
creation and any transfer of the exploitation rights.
LONDON, 08/06/20

Ryde Services is in partnership with Kodakone
https://www.kodakone.com/ryde-holding-a ... nt-claims/

It is a legit set up therefore shall I make a counter offer lets say 120 euros in roder to save the whole hassle of going to court and pay higher sumes to legal representatives?
What would be your advise please?
regards
Hakan

Note: I think the issue is here not the landmark maybe copyrighted ( freedom panorama), it is the photographer holding the rights of the photo of the landmark...
Note 2: If the building IS copyrighted (whole facade) , then I am curious if the photographer has the right to photograph the building and if he is holding the permission to photo the building.

Re: Kodakone asking payment for copyright infrigement

Posted: Fri Sep 04, 2020 5:43 pm
by AndyJ
Hi Hakan,

Thanks for the explanation about the euro issue. You are right that in Germany the law can provide additional protection for buildings (these are the architect's rights, not a photographer's) but that won't apply in your case since you, the photographer and the scene in question are all in the UK, therefore UK law applies, and there is no special protection available here for buildings or statues which are situated in public places (see section 62 of the Copyright Designs and Patents Act 1988.)

If you are sure that the Shutterstock rate of 9.80 euros is correct for the type of use which applied to your website, then I don't think you need to up your counter-offer. There is clearly an element of bare-faced money-making involved in their claim for 619 euros (although I'm not sure I would go so far as to call it a scam as it doesn't actually involve any illegality). You can of course increase the offer if you choose, but it may only indicate a weakening on your part and encourage them to come back with a further claim, say, one halfway between your 120 and their original claim for 619. You are on strong ground and if you stick to your position I don't think this will go anywhere near court since the damages which would be awarded would be close to the 9.80 euro figure, rather than their 619 euros. At most you might then need to pay the court costs (£35 for the issue of the claim form plus £25 for the court hearing) on top. The photographer on the other hand will have to split his damages with the claims management company, and also have to absorb any legal costs for his side, meaning that he will be making a loss if he takes you to court. The IPEC small claims track does not award legal costs against a defendant and you would not need to be legally represented. Your only costs would be taking a day off work and the cost of travelling to Central London for the day.

I hope this reassures you.

Re: Kodakone asking payment for copyright infrigement

Posted: Sat Sep 05, 2020 10:20 am
by scout1654
Thank you. Your relies have been a tremendous help.In my reply, I intend to use term " without prejudice" as the letter will contain
" full and final settlement" figure. This will be offered on the basis that, although I do appreciate the effort Mr Segre put into his work, this is what we can afford to pay during the covid-19 crisis which affected the hospitality business tremendously. W"hat do you think, Please let me know.
regards
Harry

Re: Kodakone asking payment for copyright infrigement

Posted: Sat Sep 05, 2020 2:02 pm
by AndyJ
Hi Harry,

I don't think you need to appeal to their good nature by mentioning what you can afford. You are in a strong position legally to counter their ridiculous claim with something based on reality. And I think it will be when they realise the reality of their own poor position that they will back off, rather than out of any sympathy for your financial plight.