Copyright infringement via Permission Machine, acting on behalf of Alamy

[Ergo18]

PicRights were the previous company. They vanished without a trace after I wrote to them and asked them politely to GTF....

[rover34]

Just received a similar letter.
Can anybody update me on whether they have been successful in reducing the payment requested and if it actually provide the use of the image going forward?
I have removed the image now so will that be sufficient ?

[AndyJ]

Hi rover,

I can't tell you about how previous forum members have got on in their dealings with Permission Machine as sadly few people return to the forums once the matter is resolved. These companies often insist on confidentiality clauses in any settlement precisely so tthat people like you can't find out that, if you stand up to them, they will negotiate a much lower amount to settle the matter.

However I can tell you that if you do settle the claim it will not provide you with a licence to use the same photograph in the future. This is because PM is not authorised to issue licences on behalf of the photographers they represent. And I very much doubt if just removing the disputed image will be sufficient to get PM off your back. You will probably need to engage with them at some level.

[Ergo18]

In my case I can say that after writing back to PM and asking them to take me to court if they wish to I received another letter today which was a carbon copy of the previous letter adding on the late fee for non payment of the original £370.00 demand.

I have once again written to them today via email and post refusing to accept liability and asking them to feel free to take me to court.

I cannot claim to be an expert and am not advising everyone to be a s cavalier about this as I have been but I will say these are the second company who have tried to make money out of me and I have given both of them the brush off as they are no more than pseudo ambulance chasers in my opinion.

That being said I have not knowingly stolen anyone's images or tried to defraud any content creators.

Will keep you updated

[bullnation]

Hi guys,

I have been following this thread with interest as I have been contacted by Permission Machine and have received the same kind of letters a previously mentioned. I have copied the meail conversation I have had with them thus far, and would appreciate any advice on the reply to the latest response from them

Good afternoon,

I am writing regarding a letter that I received from you about a photo that had been used on my website.

This image has been removed from the site immediately upon receiving your correspondence. I was not aware of any infringement taking place.

You have also included a settlement fee of £420. This is an exceptionally high amount, which, after investigation, far exceeds the cost of licencing the image through Alamy. I request that you send me a breakdown of this amount.

Yours sincerely,

We appreciate the removal of our client’s image from your website.

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 calculation of the settlement.

Please let us know if you have any further questions.

Kind regards,

Hannah

Good evening,

Thank you for your response.

Unfortunately, the reply does not answer the question posed. Please may you provide me with a specific breakdown of how this amount if generated.

Thank you for your email,

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.

If you are not satisfied with the information we have provided about the settlement, we will have to reluctantly pass this case over to our solicitors.

Kind regards,

Hannah

Good evening,

Thank you for your response.

I am afraid I cannot accept a settlement calculation if I cannot understand how the amount quoted has been formulated specifically.

From liaising with my contacts, I am informed that:

- Damages in the case that you are presenting would be £35.99 for the licence as you advised.
- Damages can be for the cost of the licence, or account of profits. Not both.
- In the event of the case being taken to court only court fees and the claimant’s personal expenses from the day can be claimed.
- Legal costs are not admissible in the small claims court (as per section 8 of the IPEC Small Claims Guidance Notes).
- The civil justice system looks to fairly compensate the claimant for their actual loss; Alamy’s T’s & C’s are not considered.
- No flagrancy has been committed. As soon as I received you letter the image was removed. Equally, there has been no infringement of moral rights.

Your interpretation of Section 97, part 2 appears misleading. I have quoted the accurate section below:

(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.

There is no mention of, for example, ‘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.’

It is for the above-mentioned reasons that I request a detailed breakdown of how you formulate your settlement calculation. This is a reasonable request to make, as I am lead to question the transparency of your communication thus far. I am hopeful that you will help progress this situation by providing me with such.

Thank you for your email,

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 are sorry that we could not come to a resolution for this matter, this case will be passed into the hands of our solicitors to resolve.

Kind regards,

Hannah

Sorry if that is a lot of information at once...but I thought it would be useful to follow the process so far. Is it reasonable of me to be asking for a breakdown of how they have come up with that initial figure? As they seem reluctant to tell me - I refuse to pay an amount that is not transparent to tell me why I am being charge it.

Thanks in advance!

[AndyJ]

Hi bullnation,

You have handled this exactly as I would have advised. The fact that 'Hannah' keeps coming back with their boilerplate replies shows that they are not really reading what you have to say, just moving along their flow-chart process. Should this go to court, and I don't think it will, the replies you have provided here will count in your favour as you have reasonably asked for a breakdown and that has been ignored. This demonstrates a lack of good faith on their part in trying to come to an acceptable settlement.

Assuming that they pass on your correspondence to their lawyers, I would expect the lawyers to advise them to either drop the claim or reduce their demand down to somewhere near the Alamy standard fee. Their full claim for £420 stands no chance of being accepted by the court, assuming that you respond to any claim form issued by the court. From what you have written so far, I am sure you would do that if the need arose.

If past form is anything to go by, I wouldn't expect you to hear from their lawyers for quite some time, if at all. You have all the correct responses to deal with them if they do. However since it costs PM money to refer a case to their solicitors, and as you already know, legal costs can't be claimed against the defendant, I can't see this going ahead somehow. They only bet on winners.

Good luck

[bullnation]

Thanks for you response Andy.

Do you think I should reply to this email? - I was gearing up to reply stating that I was disappointed that they have have moved to refer to lawyers as I was reasonably trying to understand their request, yet they have ignored my request. And to highlight that I understand section 8 and what they have put doesn't highlight anything related to what I am asking.

But, wanted to seek the advise as to whether I reply, make an offer, or just leave it as is for now?

Thank you

[AndyJ]

Hi bullnation,

To be honest I don't think there's much point in trying to engage 'Hannah' in meaningful negotiations. I doubt if she has much or any authority to depart from the script so it would about as pointless as discussing this with your cat (or dog). It would certainly do no harm to make a formal counter offer to settle the matter. Obviously this should be based on the normal Alamy fee, possibly with a small uplift which represents the value to you of not having to continue this pointless dialogue of the deaf. I would be inclined to say that this is your final offer, but I leave that to your discretion. Also, make no admission about the underlying infringement. There is no point in making their case easier, and a settlement can be achieved without any admission of liability. The important thing is that you acted expeditiously to remove the disputed work once you were informed of the claim, so there are no grounds for additional damages under that heading.

At this stage you can ignore their spurious claim about a failure to credit the photographer, assuming that you did not remove any pre-existing credit from the image. The right to a credit has to be asserted (see section 78 CDPA) and even if this had been asserted elsewhere to someone else, if you had no knowledge of that assertion you cannot be held to have infringed this moral right, absent any copyright notices on the face of the image or embedded in the EXIF data. If you still have access to a copy of the image, it might be worth checking to see if there is a copyright notice in the EXIF data, using one of the free online tools (eg here) for this purpose (or Photoshop if you have it). Clearly if the EXIF does contain the photographer's copyright notice and this was present while the image was hosted on your website, this part of the claim falls away and is groundless.

[bullnation]

I decided to shoot back with a closing email...

Good morning Hannah,

Thank you for taking the time to reply.

I am disappointed that you wish to jump to escalating this to your solicitors before assisting me with me my only question, relating to the amount that has been asked of me to pay.

I believe it is perfectly reasonable for someone to wish to understand this – after all, I received a letter from a company I have never heard of, accusing me of an offence, and demanding I pay a large some to settle it. Naturally, I would like to ascertain why this amount is so high. It is regrettable that over our email dialogue you have not been able to provide me with a suitable response, as such I still cannot understand how this figure is calculated. Your previous email highlights what I had stated in my previous email, but my query was relating to the £420 that has been demanded from me?

In want of bringing this ongoing dialogue to a close, I am prepared to make an offer of £65.99.

This amount represents Alamy’s fee of £35.99 plus an additional £30 for whatever administrational costs may have been incurred from your work.

This is my final offer, which I believe to be very reasonable and therefore hope that you will accept.

Yours,

I will see what they say.

[spacecadet]

Have to say that going to IPEC just to negotiate fees downwards seems to me a poor choice and rather risky- IPEC has made some pretty impressive awards in recent years, usually in line with the rights holder's claim. See
http://www.epuk.org/news/aerial-photogr ... ord-height
IMO the suggestion that the absence of assertion on the infringing copy is a defence to breach of moral right for lack of attribution is shaky. s78 4c specifically states that you're bound even if your copy doesn't bear the assertion. I have had settlements on the mere fact of lack of attribution with no underlying infringement because the image had a CC licence- presumably because the infringer was properly advise that they had no defence.
I'm not a lawyer.

[AndyJ]

Hi spacecadet,

Thanks for your contribution to the debate. I'm not clear what course of action you would suggest - I can only assume that you are in favour of paying the full fee demanded by Permission Machine, that is to say 11 times the amount of the Alamy fee. If this is your suggested solution, then you clearly believe that such settlements should involve an element of punishment.

In reality Permission Machine has no interest in going to court when they know a claim will be defended by someone who understands their rights. The economics of going court aren't in their favour. This provides a defendant with a degree of leverage when negotiating a fairer settlement.

[bullnation]

Have to say that going to IPEC just to negotiate fees downwards seems to me a poor choice and rather risky- IPEC has made some pretty impressive awards in recent years, usually in line with the rights holder's claim. See
http://www.epuk.org/news/aerial-photogr ... ord-height
IMO the suggestion that the absence of assertion on the infringing copy is a defence to breach of moral right for lack of attribution is shaky. s78 4c specifically states that you're bound even if your copy doesn't bear the assertion. I have had settlements on the mere fact of lack of attribution with no underlying infringement because the image had a CC licence- presumably because the infringer was properly advise that they had no defence.
I'm not a lawyer.

Hi Spacecadet - appreciate your input on this discussion. Can I ask what your advice would be? I am interested in taking onboard as many opinions as possible really to help shape my dealings with PM!

Thanks

[spacecadet]

In brief, settle. You have no defence to the infringement and, if you didn't credit the photographer, the infringement extends to moral rights as well- as I said I've had settlements on that alone. Flagrancy in your case is debatable. It seems to require deviousness or some other dishonesty- in the case I quoted the infringer attempted to remove watermarks.

In answer to Andyj, the amount demanded isn't necessarily the minimum that will be accepted, but you can be sure that if they do go to IPEC, the claim will be quite a bit higher, and even if you were to prevail on the amount of the claim, you would not be able to avoid the court fees and possibly some costs, although as stated these are very limited. I agree with the economics of going to court for PM but it's a big risk. You certainly risk a couple of hundred pounds. I might suggest an offer of around half what's demanded.
Thinking about it, on the face of it you have deprived a photographer of revenue. That you were "not aware" of the infringement doesn't help him- or you.

Talking turkey, my biggest settlement is just short of four figures for a comercial infringement. Even though it was unfortunate for them- the images were provided by another party whose bona fides they had no reason to doubt- my offer was accepted without question. Had it gone to court my claim would have been at least double that. More typically settlements are in the low hundreds. I would never accept an offer anywhere near the legitimate licence fee.

Interestingly, since IPEC opened, I have not had any UK infringements to speak of. Most publishers are well aware of it and are well advised.

Not incidentally, I am with Alamy and they are currently pursuing several active infringements on my behalf. PM are not trolls. They are pursuing revenue properly due to their clients- photographers such as myself.

[AndyJ]

Hi spececadet,

Thanks for the additional information and mention of the fact that you have a personal interest in the way that Alamy, and by extension PM, operate. Personal experience greatly assists our discussions here.

However when you talk about the IPEC SCT you are perhaps missing the point that although a claimant can claim any amount they wish, provided it is under £10,000, the court will only accept a figure which represents the true loss to the claimant - always assuming that the defence enters a response to the claim, of course. The aim of civil justice is to put the claimant in the position he would have been in if, hyothetically, he and the defendant had concluded a deal based on the willing seller and the willing buyer. In other words in a case such as you describe, it is the normal fee that Alamy would have charged for the use of the image. You say that "had it gone to court my claim would have been at least double that". However that does not mean that the court would automatically accept that that was the true value of the claim when it came to assessing the damages. The reason Jonathan Webb was able to get such substantial damages in his two cases was that he was able to prove flagrancy since the company which used his images had deliberately removed his quite extensive watemarks, failed to engage in any meaningful pre-action dialogue and came up with the poor defence that they didn't know that the images were subject to copyright - despite the court finding that they had removed the copyright notices. It is hardly surprising Webb won in such a spectacular way. But that case does not represent the norm in the IPEC SCT.

If Alamy's terms required a credit for the photographer and this was omitted then obviously damages for a breach of the moral right to attribution would be admissible. Usually this tends to double the standard damages for copyright infringement, and again there can be flagrancy factors, but there can also be mitigation. For example if the defendant used an image which had already had the credit removed before he took it and he could prove this, then damages for the infringement of moral rights could be substantially less. This is because, unlike copyright infringement, infringement of moral rights is not a matter of strict liablity. It falls under breach of duty law which is quite different (see section 103 CDPA). However from what Bullnation has said so far, it is not clear whether or not the lack of a credit is truly at issue in this case. The fact that PM use boilerplate standard text in their emails doesn't really help to clarify matters.

As you have a personal interest in this subject, you may be interested in this report produced by BAPLA a couple of years ago.

[lee]

Afternoon all,

I too have had a letter like this demanding money. I run a small website which has a podcast and basically has local news for my town. An image appears to have been brought through via the WordPress Plugin Feature "Press This" which is advertised in the plugin as:

"Press This is a little tool that lets you grab bits of the web and create new posts with ease.
It will even allow you to choose from images or videos included on the page and use them in your post.
Use Press This as a quick and lightweight way to highlight another page on the web."

I've used it previously to copy in links to news articles, which then allows discussion about the news piece.

A post from 2018 was located and I received an email demanding a payment of over £300.

I asked for a breakdown and received the following:

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 add the sum of the damages outlined above to the settlement calculation.

Our client has already charged their non-commercial settlement rate of £320.00 given that your website runs as not-for-profit. However, in light of bringing this matter to a close, they are prepared to reduce the settlement by 15%. This means that the figure now stands at £272.00.

£272 still seems like a lot of money for the alleged infringement of copyright.

I wondered if the original poster got anywhere with Permission machine?