Copyright infringement via Permission Machine, acting on behalf of Alamy

If you are worried about infringement or your work has been copied and you want to take action.
stevetheadi
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Re: Copyright infringement via Permission Machine, acting on behalf of Alamy

Post by stevetheadi »

That's very helpful, thank you very much.

The company who claim copyright is alamy. Quite a big stock photo company.

I have asked for a breakdown of the £440. When I get it, I'll submit my counter offer and the reasons.

I suspect they will try to encourage payment by insisting they will go to law but if they do I'll certainly be defending my position in court.
shaunyness
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Re: Copyright infringement via Permission Machine, acting on behalf of Alamy

Post by shaunyness »

Hi all,

Steve - Have you got any updates on your situation? I find myself in an almost identical one at the moment.

I have received an email from Permission Machine with a letter of authorisation signed by Alamy (identical to those mentioned earlier in the thread). The image (https://www.alamy.com/stock-photo-india ... d0%26pl%3d) is on the Alamy website currently and the fee listed for use on a website is £35.99

The image was used in a blog post about a bedding product I liked. The image was taken from the bedding company website with no sign of credit. Their website is https://squareflower.co.uk/. I have since removed the blog post and taken down my blog / website.

The amount of payment requested is £420

I emailed the infringement manager at Alamy, explained the situation and they've cc'd in Permission Machine, stating that they won't accept a retrospective license fee and that their T&Cs state that the minimum fee would be "Five (5) times the standard fee", before additional admin fees for both Alamy and Permission Machine are taken into account.
Last edited by shaunyness on Thu Feb 17, 2022 12:26 pm, edited 3 times in total.
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AndyJ
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Re: Copyright infringement via Permission Machine, acting on behalf of Alamy

Post by AndyJ »

Hi Shaunyness,

On your last point about what Alamy's t&cs say, that is fine as far as a retrospective licence is concerned, but it doesn't alter the legal reality that if you were taken to court over this, the level of damages would be based on the fair market rate, that is to say the original standard licence fee which Alamy offers. They would not be able to claim their administrative expenses (assuming there are any genuine extra expenses, which I doubt) for such things as enforcement action, when making a normal infringement claim using civil law. The fact that Alamy may have a deal in place with Permission Machine in which PM get a percentage of anything they recover has absolutely no relevance to the process the court would follow in providing a remedy for the tort of copyright infringement. You need to bear this in mind when you enter into settlement negotiations.
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stevetheadi
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Re: Copyright infringement via Permission Machine, acting on behalf of Alamy

Post by stevetheadi »

Hi shaunyness

I offered £65 - they generously reduced the amount they would accept to £315. I told them I wasn't going to budge. They said:
We are sorry to hear that you have declined our clients reduced settlement offer.

We will therefore have to reluctantly pass this case into the hands of our solicitors to resolve.

They will be in contact in the near future.
That was on Jan 31st.
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Re: Copyright infringement via Permission Machine, acting on behalf of Alamy

Post by steviec »

Thanbs for keeping us updated, there is a lot of this around at the moment, hopefully so much that the authorities will step in and curtail their activities
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Re: Copyright infringement via Permission Machine, acting on behalf of Alamy

Post by shaunyness »

Steve and Andy, thanks very much for your replies. I've asked them for a breakdown of their fee and will proceed as per the recommendations so far in this thread. Should anything new pop up, I'll update here.
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Re: Copyright infringement via Permission Machine, acting on behalf of Alamy

Post by steviec »

"knowledge us power" in these matters so the more we can share our knowledge the better for us all

look forward to your updates
shaunyness
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Re: Copyright infringement via Permission Machine, acting on behalf of Alamy

Post by shaunyness »

Attached is the response I've just received from Permission Machine with their fee breakdown. Looks like their standard response based on what's in this thread already.

My post linked to the brand I'd been writing about. I made no profit from the use of the image but I wonder whether they'd have a claim for "Profits made from the sales of the product for which the image was used to advertise."?
Based on the circumstances of the image being used on a blog and that your website operates as non-commercial, we are prepared to remove the late fee and reduce the license fee to £320 which is our client’s non-commercial settlement rate.

We have to ensure that the settlement covers the below damages to compensate our client.

The settlement we are requesting is not a retrospective license fee, but damages outlined in the law of the Copyright, Design and Patents Act 1988, namely Section 97, part 2:

(2) The court may in an action for infringement of copyright award such damages as the justice of the case may require. So based on this article, the judge will award all reasonable damages. The damages under this law would then substantiate to the following:

• The license fee that should have been paid
• Moral damages: The creator did not approve this usage and having the image available on your platform opens up the chance for others to use the image illegally.
• © damages can be amounted from the costs of identifying and research which we incur to identify the infringement on a technical level and establish whether or not there has been a breach. Specially trained staff check whether it’s the same photo and whether a legal exception to copyright rules applies. The photographer then verifies whether a licence was granted for the photo in question.
• Costs of drawing up and sending files include the costs for drawing up files, taking any screenshots and further documenting the infringement, and for searching for the necessary address and other details. Finally, we’ll double-check the file before it is sent out.

To be augmented or multiplied

• (a) Profits made from the sales of the product for which the image was used to advertise.
• (b) Damages arising from Flagrancy.


An image sourced directly from Alamy is currently £35.99 for a website license, this is multiplied by a minimum of 5 as per the Alamy Terms and Conditions if the correct license is not sourced from them directly in the first place, which takes it to an initial settlement of £179.95. This is for when a photographer or member of the public spots one of the images we represent being used online that may not have a license (usually these are watermarked with Alamy). As Alamy have used the proprietary software of Permission Machine to look for these types of uses online, and the two teams of Admin staff both at Alamy and Permission Machine, the costs start to escalate which is why the requested settlement is higher. We then have to add the sum of the damages outlined above to the settlement.
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Re: Copyright infringement via Permission Machine, acting on behalf of Alamy

Post by AndyJ »

Hi shaunyness,

I think we've dissected almost exactly the same response from PM before. As you say, it's just one of their standard bits of BS. There is no such thing as moral damages for "having the image available on your platform". If that truly posed such a risk that others could copy the image, just think how much more of a risk it would be if Alamy did the same thing, where their website probably receive many more hits than your blog. The English in the letter makes me wonder if it wasn't written in another language and someone has used Google Translate to convert it, badly.

Section 97 (2) is only used by the courts when either the infringement itself is flagrant, or the defendant has been particularly obstructive in his response to the case. That does not mean that a defendant would be subject to section 97(2) additional damages just because he refused to settle based on the original amount which had been demanded. And damages explicitly do not cover the claimant's costs in detecting the alleged infringement and processing the claim. If the claimant chooses to pay someone else to do this on his behalf, that is a running cost he has to bear himself.

As Steve says, knowledge is power, and in this instance you probably have a better knowledge of the law than the staff at Permission Machine.

I am interested when you say that you were writing about a brand on your blog at the time you used this image. Were you reviewing a product or advertising it? If it was the former, using an image which depicts the product under discussion may well be covered by section 30 (1) fair dealing. Technically speaking that exception only applies where the criticism or review is of another copyright work, so for instance if you had been reviewing a book or a music CD, it would allow you to use a picture of the book cover or CD sleeve. However I think it is at least arguable that if you were reviewing an item not covered by copyright, such as a kettle, you could use an image of the product under Section 30(1ZA), ie quotation, as the image was entirely relevant to the discussion.
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shaunyness
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Re: Copyright infringement via Permission Machine, acting on behalf of Alamy

Post by shaunyness »

Hi Andy,

Thanks once again for taking the time to provide such a detailed response. In answer to your query...

The blog post was a review of some raw cotton bedding. The image used was of a farmworker and was used alongside some copy such as "A mere 1% of the world’s cotton production is organic." - taken from the bedding brands website https://squareflower.co.uk/pages/organic-cotton
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Re: Copyright infringement via Permission Machine, acting on behalf of Alamy

Post by shaunyness »

Again folks, their response hasn't thrown up any surprises. All from the same playbook...
Moral damages would consist of:

- The absence of permission
- The absence of the name
- The mutilation of the photo
- Loss of exclusivity (other clients will pay less for images that are not exclusive)


The right to grant or not to grant permission to use a work is at the heart of copyright law. When this is misunderstood, an author is misunderstood in the essence of his or her rights. The distribution of photographs is an important part of our client’s activity. It goes without saying that, in order to be able to exploit its photographs, they must be able to determine for themselves who uses its photographs and when, and that it will be harmed if third parties deprive it of this right of disposal by using photographs without permission.

If the photo is used without mentioning the author's name, the author misses out on name recognition, many possible assignments.

The use of the disputed images in a form other than the original, by the use of cropping or mirroring, without prior permission, is also an infringement on the right of first respondent to agree or not to agree to any deformation, mutilation or other alteration of the work, or any other violation of the work, which may harm their honour or reputation.

Alamy would not be equally guilty of this as there is a contract in place between the photographer and Alamy.

We can confirm that our client would be able to claim for the administration fees of pursing the case, we refer to the Intellectual Property Enterprise Court guide (“IPEC”) section 8.

In the IPEC small claims track there are only very limited circumstances in which the court will order one party to contribute to the costs of another (CPR 27.14). These include:

• fixed sums in relation to issuing the claim;
• court fees (including the hearing fee);
• expenses which a party or witness has reasonably incurred travelling to or from a hearing or
staying away from home for the purpose of attending the hearing;
• loss of earnings or loss of leave evidenced by a party or witness caused by attending a court
hearing, limited to £90 per day for each person (PD 27 para 7.3);
• in proceedings which include a claim for an injunction, a sum for legal advice and assistance
relating to that claim, not exceeding £260 (PD 27 para 7.2);
• such further costs as the court may decide at the conclusion of the hearing should be paid by a
party who has behaved unreasonably. A party’s rejection of an offer of settlement will not of

itself constitute unreasonable behaviour but the court may take it into consideration (CPR

27.14 (3)).

We appreciate your offer of £80.99, however our client cannot accept this offer as settlement for this case.

In light of bringing this matter to a close, our client is prepared to reduce their non-commercial rate by 15%. This means that the settlement now stands at £272.00. Please note that this offer is valid until 24/03/22.
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AndyJ
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Re: Copyright infringement via Permission Machine, acting on behalf of Alamy

Post by AndyJ »

Hi shauny,
Yes, no surprises and unfortunately very little understanding of how the system actually works. Makes you want to ask if there's a grown-up you can deal with.
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Re: Copyright infringement via Permission Machine, acting on behalf of Alamy

Post by Sparky33316 »

Hi All,

Just a quick update on my situation.
After attempting to negotiate with Permission Machine and offering them a lower figure as settlement, they refused and on 14th Jan, I was told by Permission Machine that they were handing the my case over to their solicitors and they would be in contact. As yet, 2 months later, I have heard nothing from anyone.

Just wondered if anyone else is in the same position ?

Thanks,
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Re: Copyright infringement via Permission Machine, acting on behalf of Alamy

Post by Nick Cooper »

shaunyness wrote: Mon Feb 21, 2022 1:10 pm
The settlement we are requesting is not a retrospective license fee, but damages outlined in the law of the Copyright, Design and Patents Act 1988, namely Section 97, part 2:

(2) The court may in an action for infringement of copyright award such damages as the justice of the case may require. So based on this article, the judge will award all reasonable damages. The damages under this law would then substantiate to the following:

• The license fee that should have been paid
• Moral damages: The creator did not approve this usage and having the image available on your platform opens up the chance for others to use the image illegally.
• © damages can be amounted from the costs of identifying and research which we incur to identify the infringement on a technical level and establish whether or not there has been a breach. Specially trained staff check whether it’s the same photo and whether a legal exception to copyright rules applies. The photographer then verifies whether a licence was granted for the photo in question.
• Costs of drawing up and sending files include the costs for drawing up files, taking any screenshots and further documenting the infringement, and for searching for the necessary address and other details. Finally, we’ll double-check the file before it is sent out.

To be augmented or multiplied

• (a) Profits made from the sales of the product for which the image was used to advertise.
• (b) Damages arising from Flagrancy.]
It should be noted that the above claim by PM highly misleading. What Section 97, part 2 actually says is:

"(2)The court may in an action for infringement of copyright having regard to all the circumstances, and in particular to—
(a)the flagrancy of the infringement, and
(b)any benefit accruing to the defendant by reason of the infringement,award such additional damages as the justice of the case may require."

[source]

The CDPA says nothing about "the costs of identifying and research" and actions associated with it.
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Re: Copyright infringement via Permission Machine, acting on behalf of Alamy

Post by Ergo18 »

Hi All

I too have had some dealings with these clowns, received a letter back in January telling me my website had an image that was not licensed and they wanted £ 370.00 in seven days.

Firstly the image is not on my website as it was taken down last year when another similar company sent me a letter demanding money (which I ignored) but we took the image down. Short story is that I purchased my business from an individual in 2018 which included the website too. I was not aware copyright images were used at the time. I never heard from the original company who sent the first letter again.....

So back to Permission Machine in 2022. I ignored the January letter then yesterday I received a "chase" letter with a £ 20.00 additional "late fee" from Christopher Vaughan in the legal department at PM, countersigned by Gemma Ritchie-Day from Alamy.

I promptly replied by email telling them to take me to court as I will be happy to defend myself on the basis that although I may be guilty of not completing enough due diligence in regards to copyright on my website I did remove offending images as soon as I realised the previous owner did not have said permissions.

We will see what they say but...... according to companies house the Permission Machine were almost struck off the register a few years ago and only have one single employee....They seem like opportunistic con artists to me and I'm happy to have a day in court but I doubt it will ever get that far.
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