Copyright infringement via Permission Machine, acting on behalf of Alamy

[AndyJ]

Hi stevier,

You are in a much stronger position now that it appears that the photographer gave permission for the original use and appears to have also licensed any subsequent use by the advertiser, albeit with a credit. Since the photographer has asserted his right to be credited (see section 77 CDPA), despite the fact that the need for a credit was not passed on to you, this does leave you vulnerable because the law (section 78 (4)(d) CPDA) says that a person who receives a copy of a licensed image is required to provide the credit "whether or not he has notice of the assertion". Nevertheless I think it is fair to say that it is the advertiser who is morally at fault.
Let's hope the photographer is feeling charitable about the technical breach of his rights. Either way, unless the VRG claim specifically mentioned the omission of the credit, their claim is dead in the water since the image was used with permission.

[stevier]

Cheers Andy - will keep you posted!

[stevier]

Hi Andy,

So here's the next development.

I wrote to them saying:
Upon receiving your email, we removed the image in question from our website while we investigated where it had come from as we take such things very seriously.

I now have confirmation from the owners of the subject in the photo that the photographer granted permission to use and share it when it was taken back in 2017. We in turn received it from a third party who had liaised with the owners and had the go-ahead from them to put it in an educational editorial case study that involved both parties. It was simply used to illustrate the editorial piece and had no financial benefit to us.

We couldn't have carried out any more due diligence than we did, and would never knowingly use a photographer's work if we were unsure about permissions. We have a strong policy of supporting photographers and always credit where it's needed.

I hope this clarifies matters.

Here is the reply I got:

We appreciate the information you have provided from investigating this matter on your side.

Please can you provide proof that you have received permission from a third-party that has been granted permission from the owners of the treehouse to use the image?

Once we have received this information, we will be able to pass this onto our client to verify with the photographer of the image.

Now, I do have an email from the person who supplied us with the image stating that the case study subject people had signed off on it, but the chap who worked there at the time who got permission is no longer with the company so they can't find an email trail proving anything.

Any suggestions on how to proceed?

Thanks!

[AndyJ]

Hi stevier,

I think you should provide the email you do have and give the same explanation as you have here, that the next link in the chain is missing due to the passage of time, however you have had the verbal assurance that permission was given, and if they wish to take the matter further they need to raise it with the advertiser who supplied you with the case study since you are satisfied that you have carried out due dilligence. You can point out that you believed you were authorised to use the image per section 16(2) CDPA. That means that if anyone is liable for primary infringement, it is the person who authorised you to use the image. As a consequence the most that you might be liable for is secondary infringement contrary to section 23 CDPA. If it becomes necessary to defend yourself in court you will argue that under the provisions of section 23 and in the circum,stances you had no reason to believe the image was an infringing copy, and thus your liability for secondary infringement falls away.

I would hope that this will cause them to lose interest since it introduces a large element of doubt about the chances of making out a strong case against you. They do not want to go to court and lose.

[abs]

Hi Andy
I messaged on here a few weeks ago as I had also been contacted by fairlicensing@alamy.com

I sent a reply to them with a lower offer - initially £40 then £60.99 to cover the licence cost and explained that I had taken the image down straight away and contacted google to remove any traces. I also asked for a break down of the fees.
The image was only up less than a month as it was a brand new website that was under construction. I was not using the image to advertise any products or make money from the image, Plus the image was of me on private property (my shop) and the photographer did not let me know the image was being taken.

They have replied and say the fee stands do you think I reply to this?

This is their latest reply -


Here is a breakdown of the cost:

The missed license fee and compensation for not obtaining prior consent £250
The costs of creating the dossier (this is the internet scan, creating a case, validating contact details) £150
The costs for recovery and communication £40 (this is shown as an Admin fee)
Please see here for any information on releases https://www.alamy.com/help/what-is-mode ... lease.aspx.

The settlement we are requesting is for 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

[AndyJ]

Hi abs,

I have recently commented on another thread about Alamy's standard nonsensical breakdown of its claim figure. Civil justice does not involve any element of punishment, which is what 'compensation for not obtaining prior consent' amounts to. The next two sentences are merely their costs of doing business. The internet scan was purely speculative so it was not attributable to your actions. The cost of doing the other steps are not legitimate components of a damages claim in the IPEC Small Claims Court which is where a claim like this would be heard. Consequently these figures are just a wish list. It would have been more honest if they had said: Cost of licence £16; our profits £424.

They then go on to threaten to make a claim under section 97(2) but then disingenuously misquote the subsection. The actual text reads as follows:

(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.

Flagrancy would only arise if you had done something to exacerbate the infringement, or you had behaved in a wholly unreasonable way during attempts to settle the matter. From what you have said, you have done none of these things. Furthermore you have not made any financial gain, so there is no basis for a section 97(2) claim and they know it. They then try to confuse matters further by introducing moral damages (which isn't actually a thing). There is no moral right for the copyright owner to approve the use of the image which he had made available for a licence fee. Since the image is freely available to anyone who wishes to pay the fee, or even if they don't, it is Alamy who are opening "up the chance for others to use the image illegally".

Add to that the ludicrous grammar ('then substantiate to' ... ' damages can be amounted') and what you have is an unreasonable demand accompanied by waffle which identifies no real basis for the amount claimed, and some pseudo legal nonsense intended to scare you into paying.

You are entirely within your rights to stick to the counter offer that you have already made.

[abs]

Hi Andy thank you so much for replying so quickly. I really appreciate your knowledge in this area.
I will continue to reply to them and keep you updated if I get anywhere with them.

[mattf1]

So, after going back and forth a few times with Visual Rights Group (they sent me all the usual template posts that other people have had), I stopped replying back in May. Last week (early October), I got another email asking me to respond within 7 days.

I replied, stating that my offer of £50 still stands, and stating my reasons why I don't think all the scare tactic claims they make will be held up in court, much as has been discussed here plenty of times.

I've now had the following reply:

Thank you for your email.

Unfortunately, our client's final offer stands at £351.96. Therefore your offer of £50.00 as settlement is still rejected.

We are sorry to hear that your position remains the same and you will not be paying the requested settlement in order to close this case.

As we have not been able to come to a resolution for this case, we will have to reluctantly escalate this matter to our solicitors to resolve.

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

Kind regards,

Sam



So.... will this happen? Has anyone on here been taken to court or contacted by their solicitors yet? What happens next?

Matt

[arks]

Hi all,

I am in the same situation, I used a small local town image on my website for a local taxi service and been approached by Hannah from Visual Rights Group requesting £440. I have responded as per this thread also purchased the license for the image from Alamy paid £269 for a package of 10.

Latest email I have from Hannah:

Thank you for your email.

An infringement takes place the moment an image is uploaded or stored electronically (on your server) without a valid license or when no permission from the photographer/contributor has been authorised. This means that regardless of how long the image is online or when it is taken off a website, a breach of copyright has been actioned and the photographer should be compensated for the misuse of their intellectual property.

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 Alamy represent being used online that may not have a license (usually these are watermarked with Alamy). As Alamy have used the proprietary software of Visual Rights Group to look for these types of uses online, and the two teams of Admin staff both at Alamy and Visual Rights Group, the costs start to escalate which is why the requested settlement is higher. We then add the sum of the damages outlined above to the settlement calculation.

We appreciate your offer of £30.00 as settlement for this case, however our client is not prepared to accept this amount as compensation for the misuse of their intellectual property. If this case is presented to the Small Claims Court, our client will be able to recover more than your offer. We refer to the Intellectual Property Enterprise Court Small Claims Track (“IPEC”) section 8. This includes:
• 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 clients position remains the same with regards to the settlement payment.

If you do not wish to pay the settlement, we will have to reluctantly escalate this case to our solicitors to resolve.

Please let us know how you wish to proceed.


My response as per Andy's advise would be:

Dear Hannah,
Thank you for explaining me, but I disagree.
You are threatening to make a claim under section 97(2) but then disingenuously misquote the subsection:
(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.


Flagrancy would only arise if you had done something to exacerbate the infringement, or you had behaved in a wholly unreasonable way during attempts to settle the matter. I have done none of these things. Furthermore I have not made any financial gain, so there is no basis for a section 97(2) claim and they know it. You are trying  to confuse matters further by introducing moral damages (which isn't actually a thing). There is no moral right for the copyright owner to approve the use of the image which he had made available for a licence fee. Since the image is freely available to anyone who wishes to pay the fee, or even if they don't, it is Alamy who are opening "up the chance for others to use the image illegally''.

My offer stands as previously of £30 in addition to that I paid for the license.

Need an advise what you think?

[AndyJ]

Hi arks and welcome to the forum,

It's not really important here, but I am unclear about the second part of this sentence: "I have responded as per this thread also purchased the license for the image from Alamy paid £269 for a package of 10." A package of 10 what? 10 different images, one of which is the image which is the subject of VRG's claim? As I have indicated, it's not really relevant to how to respond to this claim, since clearly the licence was purchased after the alleged infringement. However this statement implies that the cost of the individual image licence was £26.90, or thereabouts, after a bulk buy discount. Secondly, as you now appear to have a valid licence for the image, is the image still up on your website? And did you initially take down the image as soon as you received VRG's claim? If you didn't and left it up while you bought a licence this might amount to flagrancy, which in turn could justify a section 97(2)(a) claim.

In Hannah's reply she says that the Alamy licence fee is £35.99. Assuming this is correct, this is the figure which represents the true market
value of the licence and it should be used as the basis of your counter-offer, not £30 or indeed £26.90. Since you have chosen to dissect VRG's claim and point out its irrelevant parts, you might also want to highlight that a civil claim contested in the IPEC Small Claims Court would not include the additional admin costs associated with detecting the infringement which, when added to the figure of £179.95 (itself an inspportable assessment of damages), brings the total amount of the claim up to £440. Civil justice does not include a punitive element and is designed to put the claimant in the position he would have been in had a correct licence been purchased at the outset. The only additional costs the claimant might be awarded by the court are his travel costs and the court fees incurred as a direct consequence of bringing the claim. As the IPEC small claims court now regularly sits in a number of court locations outside London, no-one should incur excessive travel costs to attend a hearing.

[arks]

Hi Andy,

Thank you, for a quick response. As you can tell English is not my first language and it can be difficult to defend my self.

Yes a bought a bulk package of 10 from Alamy and 1 photo that is in dispute. I haven't removed the photo, but purchased the license same day once got the email.

I guess it would be the same as taking image down, purchasing a license. Don't want this to escalate and be taken to court, but again dont want to be bullied paying that amount. So do I adjust my response as you recommended and how much should I offer to pay?

[AndyJ]

Hi arks,

Thanks for clarifying the bit about the licences you have bought. If the gap between you being informed about the alleged infringement and your purchase of the licence was only a day or so, I don't think that can be classed as flagrancy.

Your counter offer should be based on the value of the normal licence, that is to say £35.99. VRG are unlikely to accept your offer immediately and will come back with more threats and legal nonsense, but if you hold firm, there is no reason why you should be taken to court, because it is not economically viable for the copyright owner to do that.

Good luck.

[stevier]

Hi stevier,

I think you should provide the email you do have and give the same explanation as you have here, that the next link in the chain is missing due to the passage of time, however you have had the verbal assurance that permission was given, and if they wish to take the matter further they need to raise it with the advertiser who supplied you with the case study since you are satisfied that you have carried out due dilligence. You can point out that you believed you were authorised to use the image per section 16(2) CDPA. That means that if anyone is liable for primary infringement, it is the person who authorised you to use the image. As a consequence the most that you might be liable for is secondary infringement contrary to section 23 CDPA. If it becomes necessary to defend yourself in court you will argue that under the provisions of section 23 and in the circum,stances you had no reason to believe the image was an infringing copy, and thus your liability for secondary infringement falls away.

I would hope that this will cause them to lose interest since it introduces a large element of doubt about the chances of making out a strong case against you. They do not want to go to court and lose.

Hi Andy,

Just an update. I did what you suggested and forwarded the email. That was on 2nd October and I've heard nothing since, so...fingers crossed!
Thanks so much for your amazing help.

All the best

[AndyJ]

Thanks for the update.

[Another victim]

Hi Andy
I messaged on here a few weeks ago as I had also been contacted by fairlicensing@alamy.com

I sent a reply to them with a lower offer - initially £40 then £60.99 to cover the licence cost and explained that I had taken the image down straight away and contacted google to remove any traces. I also asked for a break down of the fees.
The image was only up less than a month as it was a brand new website that was under construction. I was not using the image to advertise any products or make money from the image, Plus the image was of me on private property (my shop) and the photographer did not let me know the image was being taken.

They have replied and say the fee stands do you think I reply to this?

This is their latest reply -


Here is a breakdown of the cost:

The missed license fee and compensation for not obtaining prior consent £250
The costs of creating the dossier (this is the internet scan, creating a case, validating contact details) £150
The costs for recovery and communication £40 (this is shown as an Admin fee)
Please see here for any information on releases https://www.alamy.com/help/what-is-mode ... lease.aspx.

The settlement we are requesting is for 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

We sent them this when they gave the flimflam above about costs breakdown. They haven't replied since...

"Thank you for your email dated XXXX in relation to an alleged unauthorised use of an image on our website. In previous correspondence we have notified you that the image mentioned is no longer available on our website and you have communicated your acknowledgement of such. As has been previously stated in our correspondence, any alleged infringement of rights was unintentional, and on being notified of a potential infringement the image was immediately removed from the server.

We turn to the matter of your offer of resolution. We note your offer of a 'discount' from your previously claimed sum, in an effort to achieve a mutually acceptable resolution. However it must be acknowledged that that original figure, and by implication your discounted figure derived from it, is still subject to clarification and acceptance. Should you pursue the matter to the civil court, you will be required to break down your demand into its constituent parts, and we now ask that as a sign of good faith you break down those figures so we are able to satisfy ourselves of their validity. NOTE: Failure to accurately and reasonably account for your demand will be put before the court as an indicator of failing to act in good faith.

Without any admission of wrongdoing and purely to expedite a speedy conclusion, we are willing to put forward an offer of settlement. The offer is based on the premise that the IPEC guidance limits any claim to the damages caused by unlicensed use and specifically excludes costs other than the court fees. We note that the fee charged for use of the image is £35.99, and our offer includes an uplift of £25 for administrative costs, totalling £60.99. If you wish to take advantage of this offer, please raise an invoice for this amount.

Please note that rejection of our offer and a continuation of your earlier demands MUST be accompanied by the breakdown requested above, and ensure that such breakdown complies with the IPEC guidance on what costs can/cannot be claimed. For the avoidance of doubt, any case filed will be vigorously defended. "