Copyright infringement via Permission Machine, acting on behalf of Alamy

[Sparky33316]

Hi All,

I'm in a similar position and have followed this thread for advice.

Basically Permission Machine sent me a payment request for £420 as settlement for a copyright infringement (photo on my website). After several emails back and forward, I asked them for a breakdown of costs and have received this reply.

How should I respond to this now ? Should I be offering a payment but greatly reduced from their £420 or should I be telling them to get lost and take my chances with them taking me to court ?

Their email contradicts points on this thread about what I can be held liable for in court.

Help please !!!!

This is their latest email :-

"Thank you for your email,

We come to an agreement on the settlement between ourselves and 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

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

An infringement is always classed as flagrant as website owners should know the law of copyright.

On top of the calculated damages of the factors above, Alamy's minimum charge for an infringement of their image is 5X the cost of the online license (£35.99) which is a total of £179.95.

The license price you have identified from our client’s website is the cost of licensing to use the image correctly, unfortunately in this case, the image has been used without a valid license or authorisation from our client. This means that our client should be compensated for the misuse of their intellectual property which is why the settlement figure is higher than a license fee.

Please let us know if you have any further questions for ourselves or our client.

Kind regards,

Hannah

[AndyJ]

Hi Sparky,

Most of that is utter nonsense.

"An infringement is always classed as flagrant as website owners should know the law of copyright." That is untrue. Flagrancy only applies where the alleged infringer takes no action to remove the disputed image when first notified about it, or has otherwise behaved unreasonably. It is not unreasonable to refuse to pay the full amount demanded. See paragraph 8 of the IPEC Small Claims guide if you want reassurance on this point. The only time the court will award these ridiculously high amounts is when the cases are undefended, when the court has no means of determining the true value of the fees for the usage which is alleged.

"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." Moral rights can be infringed, if for example the author has asserted their right to a credit and this is ignored by someone who knew that the right had been asserted (see subsection (4) of section 78 CDPA 1988. However just putting an image on a website, for example, causes no infringement of moral rights in itself, otherwise Alamy would be equally guilty of this.

It is frankly irrelevant what Alamy's policy on infringement fees is. The civil justice system does not not seek to punish a defendant nor to unjustly enrich a complainant. The aim is to fairly compensate the claimant for his actual loss through not having sold a licence.

"The damages under this law would then substantiate to the following:" This isn't even English. "Costs of drawing up and sending files include the costs for drawing up files" Either this stuff was written by a child of three who got a dictionary for Christmas or it is the output from some poorly programmed AI.

Frankly when a company starts spouting this amount of inaccurate bullshit you know their whole operation is amateur, unethical and should be treated with contempt. The trouble is that underlying many of the claims there is real infringement which damages the livelihood of photographers. They deserve to be paid a fair amount for their work; these claims management companies deserve no sympathy because their business model attempts to rip off both the alleged infringer and the copyright owner, who only gets back a fraction of what the companies recover.

[Sparky33316]

Thanks AndyJ.

What would be your advice for next steps then? Should I offer a small amount above the original licence fee ? The original licence fee is only £35.99 so they are trying to claim over £380 in damages etc.. .. or just tell them to go away and wait to see if they take legal action?

Thanks,

[AndyJ]

Hi Sparky,

I can't provide you with legal advice on how you deal with this claim, but I can say that legally speaking, in the UK, you are only liable for an amount of damages based on the loss suffered by the copyright owner* through not selling an appropriate licence to use the image. So the standard Alamy fee plus around 10% to cover administrative costs would be a fair counter-offer. The second option involves some risk but the claim as it stands (£380) is only worth litigating if they are are convinced that you won't defend the action. If you maintain a firm position and are prepared for some stress it is worth considering. As you have already been in protracted correspondence with them, breaking off now without making a reasonable counter offer might weaken you defence if they later try to claim additional damages due to what they would say was your unreasonable behaviour - see CPR Part 27, paragraph 27.14(3) which says

(3) A party’s rejection of an offer in settlement will not of itself constitute unreasonable behaviour under paragraph (2)(g) but the court may take it into consideration when it is applying the unreasonableness test.

(full link shown below)

Bear in mind that there is no reason to suppose that Permission Machine and other similar companies don't monitor this site, and so it would be sensible not to reveal your tactics in advance.

* In law, where the small cliams track is appropriate (claims under £10,000), such damages do not extend to cover the costs of enforcing the copyright owner's rights after the event. Other costs which may be awarded are limited to the personal costs of the litigant in attending court and the court fees paid by them. This governed by the Civil Procedure Rules, Part 27 and in particular paragraph 27.14.

[Sparky33316]

Thanks AndyJ.

I will email them back with an offer based on your suggestions and see what happens.

Thanks for your advice so far.

[Sparky33316]

Hi AndyJ.

I wrote back them and made an offer of £60.99 which is the licence fee of £35.99 + £25.00 to cover admin costs. At the same time in my email to them I said Moral damages, Flagrancy & Infringement fees wouldn't be considered in IPEC.

Below is their reply. Not really sure how to take this forward now.

Should I stick to my offer. ? Thanks.

This is their reply........

"Thank you for your email,

We appreciate your offer of £60.99, however our client cannot accept this as settlement for this case.

We have provided you with the factors which we base our settlement calculation on in our previous correspondence. In a court case, we would provide a detailed breakdown of the settlement, but we are currently contacting you to agree a settlement offer. If the case is taken to court, we will specify the damages. The amount claimed in court will reflect the lost licence fee, the fact that no permission was granted, the fact that the name of the author was not present, the work necessary to make the settlement offer and the additional factors we have previously outlined.

In light of bringing this matter to a close, our client is prepared to reduce the settlement by 20%. This means that the settlement now stands at £336.00. Please note that this offer is valid until 31/01/22.

Please let us know if you would like to accept our clients offer.

Kind regards,

[AndyJ]

Well, they continue to demonstrate that they have no real grasp of how civil claims in UK are handled. They can't have 'the lost licence fee' and 'the fact that no permission was granted'. If the court finds that infringement occurred, then that is the same as saying no permission was granted, but that in itself doesn't attract any damages. Damages are assessed on the basis of what the author of the work has lost due to the infringement, ie the lost licence fee. As for the matter of failing to provide a credit to the author, this would only be viable if you were aware that a credit was required. In UK law it is a requirement that the author asserts his right to be credited (see section 78). So if you found the image without any credit attached to it, and you used as you found it, that would not make you liable for infringing the moral right to a credit. However, if the image did originally have a credit where you found it and you removed the credit then that would make you liable on that aspect. It might be worth checking the Alamy site to see whether the licence terms insist on a credit; clearly if they don't then, since your counter-offer is based on the hypothetical situation where you had obtained a licence through Alamy, you would not be liable over the omission of the credit.

Your counter-offer is entirely fair under the circumstances you have described, and so unless there is some other factor which you have failed to highlight so far, it would be reasonable to stick to it. It now becomes a game of poker to see which side flinches first.

[Sparky33316]

Thanks again AndyJ.

I've written back re-stating my offer and declined theirs. Will see what they say.

[Sparky33316]

Hi Andy J,

So I wrote back to them... my email below, admittedly I might have got the wrong end of the stick re your point about damages etc.... They have replied again but refusing to budge on settlement figure and giving me a deadline of 31st Jan to settle or they will hand over to their solicitors.

I'm sort of lost on what to do now.

My recent email in response to them is as follows :-

Hi Hannah,

Thanks for your email. I can confirm that I DO NOT accept your clients offer.

You will be aware that if this smatter proceeds to court and I defend it, the damages awarded in court would be limited to the cost of the licence fee itself.

My offer of £60.99 still stands which I think is still a fair and reasonable offer.

Please accept this offer as settlement and raise an invoice to that amount.

Regards,



And their response as follows :-



Thank you for your email,

Please can you confirm where in the IPEC you have seen that ‘the damages awarded in court would be limited to the cost of the licence fee itself.’

To the knowledge of our lawyers, in the IPEC small claims track there is a chance that the court will order the infringer to contribute to the costs of the other party(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)).

Our client’s final offer of £336.00 still stands until 31/01/22. Unfortunately, if this settlement offer is not accepted, we will be handing this case over to our solicitors to resolve.

Please let us know if you have any questions.


Kind regards,

[AndyJ]

Hi Sparky,

You are right that, if the claim relates to straightforward infringement, the damages likely to be awarded against you will be based on the market rate fee which the photographer has lost out on, in this case the Alamy licence fee. The stuff that they listed are not damages, they are the types of costs incurred by the claimant (ie the photographer as the owner of the copyright) to bring the claim and to attend the hearing. If there is no hearing, because the judge is able to decide the matter on the papers, and in order to reduce the Covid risks, then the claimant won't get any attendance costs. There are no grounds for an injunction so that is irrelevant, and since you have behaved reasonably in the preliminary negotiations, there are no grounds for any additional fees or damages being awarded against you.

They are either being thick and don't understand the words in the practice rules, or they are obfuscating the issue in the hope of confusing you.

Just in case it is not crystal clear, 'costs' are sums of money which the claimant will have to pay out in advance (eg court fees, travel expenses) and if you are ordered to reimburse him for them, that will mean that he is not out of pocket, but equally he won't have made any money on these items either. Only the damages awarded represent a 'gain' over the situation as it exists at present. And of course Permission Machine gains absolutely nothing by urging the photographer to commence litigation. Assuming their fees are based getting 40-50% of anything which they recover, the damages likely to be awarded by the court would amount to rather less than your reasonable counter-offer as it stands.

[Sparky33316]

Thanks AndyJ.

I really appreciate your input into this.

I've sent this reply to them so will wait and see what happens.....

Hi Hannah,

Thanks for your email. I understand what you are saying but the items you listed are costs and not damages. These can be treated differently by the court, some of which are not even likely to be considered.

Overall, I'm very disappointed that your client sees fit to pursue this given that it was a genuine error. As soon as I was notified, I arranged for the image to be removed immediately and have subsequently offered to pay the licence fee plus admin fee to correct the problem.

My offer of £60.99 still stands and will continue to do so, however, it sounds unlikely that your client will accept this so I will leave it with you to progress however you deem appropriate.

Regards,

[Sparky33316]

Hi AndyJ.

This is the latest email from them.... looks like they intend to pass over to their solicitors. I haven't responded to their last email and don't intend to ass it really doesn't warrant a reply. I'll let you know as and when anything further happens.

Thanks...


Their email :-

Thank you for your email,

Our client still rejects your offer of £60.99 as settlement for this case, therefore we have no other option than to reluctantly hand this case over to our solicitors who will be in contact in the near future.

We are sorry that this case could not be resolved between us.

Kind regards,

Hannah

[Phillip196]

Hi Andy

I am in the same position as you having a single small image on a site I developed being chased by the same peron Hannah.. for the same amount, so am avidly keeping an eye on this thread, The correspondence I have from them is word for word so probably standard letters being fired out..please advise how this progresses for you and I will do the same thanks

Phil

[stevetheadi]

Hi

I've been issued with the same demand for payment from Permission Machine (alamy) so I've read this thread with great interest.

I run a one man driving school and used a photo of a motorway on one the pages of my website that I took from Google.

I fully accept that I should have known it could have subject to copyright but I didn't know at the time. I took the image down as soon as I was told it required a licence.

But £440? It isn't a reasonable sum. I can't find the specific image on alamy's site but a similar one costs £35.99 to use.

So I shall do what other's have done and offer £35.99 plus, say, £30 to cover admin costs.

Can anyone tell me how their case went? Did anyone actually have to go to court?

[AndyJ]

Hi steve,

Welcome to the forum and I'm sorry to hear about your experience. Even without knowing any further details I think we can be reasonably sure that £440 is not a reasonable amount for what I assume is a generic stock image of a motorway. If it had a special newsworthy value, because for instance it showed a massive pileup or some other notable incident then it might have initially had a higher value as a news photograph but that value would have rapidly diminished as the news it related to faded from the news. Plus I doubt you would have wanted to use an image of that type that on your website.

So even though you can't find the image being offered on a stock site, it would be fair to use a similar image (ie one you might just have easily have chosen for the purpose) as a comparator. You don't say who PM's client is, but I'm guessing it might be Reuters, who because they are a news agency rather than a general picture agency, tend to charge higher rates for their images. But even so, I would surprised to hear their standard rate was £440.

I think your counter-offer of £35.99 plus a £30 uplift is more than fair. When replying to PM, be sure to make it clear that you understand that if this matter were to go to court, their demand for £440 would not be seen as a reasonable assesment of the damages due to the rights owner, if the court finds in their favour.

Good luck