Copyright Infringement on a non-commercial website

If you are worried about infringement or your work has been copied and you want to take action.
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stusand
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Copyright Infringement on a non-commercial website

Post by stusand »

I run a football archive website about a particular club who I won't mention. It is just me - it is not connected to the football club, it has no advertising or sponsorship and basically runs at a loss with me personally funding it. There is no commercial side to the website whatsoever, it is purely informational.

I have just received a copyright infringement notice from PA Media about a photograph of a football player that is on the site. I don't remember where I even got the picture as it has been two or three years. I think it might have been Wikipedia.

They directed me to the Fair Licensing website to make a settlement payment which according to them consists of: standard license fee (had you come to our website to license it prior to use) and an administration fee to cover the cost of creating the dossier – internet scan, validating contact details; the costs of recovery and communication.

I was given a case number and a pin number to access the case. I was utterly stunned to find that they wanted a payment of almost £800 - with a 10% discount if I paid within 7 days. I'm not a business. I don't have that kind of money available to me.

I checked the PA Media website to see if the photo is in their library. It is, however they re-direct you to Alamy if you want to license the image. The cost to License the image in perpetuity for an Editorial website (which I assume is the category come under) is £29.99.

The retrospective licence fee on the settlement is £634 with "costs" taking it up to nearly £800. Surely this is grossly disproportionate. On the front page of the Fair Licensing website it states that they acknowledge most infringements are mistakes and they just want a fair and proportionate response. That they want to turn infringers into customers not opponents. This is completely at odds as to what they are trying to take from me.

I have been in a state of panic not knowing how to deal with this. Hopefully someone here can give me some advice on how to proceed. I haven't contacted them yet. I assume you would not recommend ignoring it ,as I spoke to a fellow football website who had a similar case against them. They said they just removed the offending item and haven't heard from them since.

I am in Scotland if that matters. I'm not sure if copyright law is consistent throughout the UK.

Thanks in advance for any help that anyone can give me.
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AndyJ
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Re: Copyright Infringement on a non-commercial website

Post by AndyJ »

Hi stusand and welcome,

You are right that the amount being demanded is disproportionate. If the standard licence fee is £29.99 then under the so-called user principle, that is what you would have paid had you obtained a licence at the start; you would not have thought to yourself "Oh no, I think I'll pay the much highter PA fee of £638" because that defies common-sense.
The aim of a claim under civil law is to put the claimant in the position he or she would been in, financially or materially, had the tort (delict in Scots law) not occurred and the right course been followed. There is no component for punishment or for recouping what are in effect normal business administrative expenses. Therefore you are not bound to take their "cost of creating the dossier" nonsense into account when making your counter-offer to settle the matter.
So far, that's pretty much what we say in all these cases. However as you are in Scotland I need to touch on the key difference which that fact could introduce should PA decide, ultimately, to sue you through the Scottish courts. The Intellectual Property Enterprise Court (IPEC) only covers England and Wales. In Scotland the standard route is that the case would be commenced in the Outer House of the Court of Session. Because Scotland has not adopted an IP small claims system similar to that available through the IPEC, if a pursuer is successful in the Scottish court in winning the full amount of the damages he is seeking, he can then ask the court to also award his legal expenses; however if the court only sets the damages at the level which the defendant put in the counter-offer to settle, then the defendant may claim his legal expenses from the pursuer. That is about the extent of my detailed knowledge of workings of the Scottish Courts so I suggest that, as there is potentially quite a lot of money at stake here, you should get proper legal advice from a Scottish solicitor who has experience in intellectual property matters. You can find an appropriate person to advise you via the Scottish Law Society's website. Select the Find An Individual tab and under Area of Work, scroll down and select the section marked Media, IT and Intellectual Property. Then complete the other boxes as appropriate and see what results come up. Make sure you get an estimate of any fees before agreeing to let a solicitor handle your case, as at this stage you only need general advice on how to proceed in dealing with this specific claim. You can put the idea of going to court out of your mind as it is most unlikely to go that far.
I'm sorry I can't be of more help. Good luck.
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stusand
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Re: Copyright Infringement on a non-commercial website

Post by stusand »

Thanks for the reply.

I've been reading quite a few threads to try and see how others have been dealing with this.

It seems that quite a few people have offered the standard licence fee as a counter-offer along with a reasonable amount to cover admin/expenses. What I haven't seen is the outcome of these cases. Do we know if counter offers tend to be accepted?

I've noticed that some people who made a counter-offer were subjected to more legal jargon, and have had to stand their ground in the face of that.

Do you think, as I'm in Scotland, that I should approach a solicitor before making any kind of counter-offer. I would imagine a solicitor in Intellectual property would be very expensive even for just some general advice.
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AndyJ
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Re: Copyright Infringement on a non-commercial website

Post by AndyJ »

Hi stusand,

You lose nothing by going ahead and making a counter-offer based on the standard £29.99 fee and a small uplift (say 10-15%) for their admininstrative costs, in that you would be signalling that you know where you stay legally. But be ready for their response, which will probably be to offer a small 'goodwill' reduction from the original ~£800 figure. You just need to stick to your original offer.
As for legal advice being expensive, it is, but you may be able to get a short (say, 20 mins) phone consultation for free. Many solicitors offer this. This allows you to set out the problem and get some basic advice on the law, much as we try to provide here, but obviously tailored to your specific situation. Obviously it is not worth spending several hundred pounds just to save the same amount in what your end up paying PA. You could also try Citizens' Advice but in my experience it can take some time to arrange an interview, so use the online portal first. The disadvantage with Citizens' Advice is that their local advisors generally don't specialise in intellectual property law and may treat your case as if it was an ordinary money debt issue - which it isn't.
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stusand
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Re: Copyright Infringement on a non-commercial website

Post by stusand »

Thank you once again for replying to me. Your help is invaluable.

Can I ask just one further question to get it straight in my head before I reply to them? If you go to the PA Images website and search for any of their images, you are presented with two choices - either "buy print" or "buy from Alamy". If you click on the Alamy link that is where you have the option to buy a licence for £29.99.

However, back on the PA images website there is a link in the footer of the page for their rate card. It is a simple spreadsheet you download and that is where the £634 standard fee is listed. I'm sure it is mainly there to facilitate these disproportionate claims.

The question I have does this rate card link really matter? All things being equal, had I been looking to buy a license in the first place would it be fair to say that being presented with the option to buy a licence for £29.99 or £634 then any reasonable person would go for the cheaper option
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AndyJ
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Re: Copyright Infringement on a non-commercial website

Post by AndyJ »

The PA price appears to be for a print, which I would expect to be more expensive than a digital download licence (although £634 sounds excessive).
Since you only need a digital licence, the Alamy option is the correct one for you. So yes, you can ignore the PA rate card on the basis that, had you been shopping for the image at the time, you would have naturally followed the licencing route to Alamy. A print would have been no use to you as you would then needed to scan it to put the image on your website.
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stusand
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Re: Copyright Infringement on a non-commercial website

Post by stusand »

Hi Andy,

I don't think it is for a print. When I clicked on the link at the bottom the page of the PA images website (https://www.paimages.co.uk/assets/docs/ ... _card.xlsx) it downloads a spreadsheet. There is a tab on that spreadsheet for Editorial Websites/Blogs and the standard "In Perpetuity" price is £634.

I'm worried that this changes things. As PA Images are displaying (although not very prominently) a link to a standard rate card on their website. They could argue that this figure is the standard price and what I need to pay to clear the case. Their admin is 25% of the license fee.

PA Media own Alamy and they are most prominently directing customers to that site to purchase licenses. I know I'm being a pain here, but does it still hold that I could have acquired the license from Alamy, although PA Media ultimately own the image.
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Re: Copyright Infringement on a non-commercial website

Post by AndyJ »

Hi stusand

If PA didn't want you to buy a licence through Alamy they wouldn't have provided a link to that option. PA are trying establish a link between you and them, which then justifies them using their price and admin fee. In reality if you had been seeking a licence for this image in the first place you would not have gone to PA knowing that there was a cheaper and equally viable alternative. That is what the user principle says. It's all about establishing a hypothetical situation which might have prevailed if you had bought a licence. The fact that PA may own the rights to the image is not relevant; they have sub-licensed Alamy to provide the image, and therefore the Alamy licence represents the market value of the image. Bear in mind that PA mainly offers its services to news outlets and their prices are generally based on the exclusivity or newsworthiness of the image concerned. Once that exclusivity and/or newsworthiness has gone, they aim to make additional money through the routine use of the images as stock, which is exactly how you have consumed the image. In order not to undermine their prestige brand PA uses Alamy for the micro-stock licensing part of the market.
I hope this re-assures you. You need to be steadfast in the face of this unreasonable claim. You can only do this if you know that you are in the right!
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fingercrossed
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Re: Copyright Infringement on a non-commercial website

Post by fingercrossed »

i have experienced a very similiar situation to this myself on a non commercial site. PA Media demanded £700 for an image that can be purchased through Alamy for £30. I offered them above this amount and they refused, saying that the matter would be sent to their solicitors. That was weeks ago now and if they do follow up I'll just go to small claims court and they can reach a conclusion about the matter.
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Re: Copyright Infringement on a non-commercial website

Post by stevedavies »

fingercrossed wrote: Wed Oct 04, 2023 11:58 am i have experienced a very similiar situation to this myself on a non commercial site. PA Media demanded £700 for an image that can be purchased through Alamy for £30. I offered them above this amount and they refused, saying that the matter would be sent to their solicitors. That was weeks ago now and if they do follow up I'll just go to small claims court and they can reach a conclusion about the matter.
Hope this goes well for you. I am going through a case like this with Pixsy though mine is regarding a free image from Flickr. I'm interested in how you'll do the small claims court part. I'm looking at various options. I've gone through as much contact as I want with the copyright troll firm. Getting to the cavalier F you stage with them
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Re: Copyright Infringement on a non-commercial website

Post by fingercrossed »

stevedavies wrote: Fri Oct 06, 2023 7:07 pm
fingercrossed wrote: Wed Oct 04, 2023 11:58 am i have experienced a very similiar situation to this myself on a non commercial site. PA Media demanded £700 for an image that can be purchased through Alamy for £30. I offered them above this amount and they refused, saying that the matter would be sent to their solicitors. That was weeks ago now and if they do follow up I'll just go to small claims court and they can reach a conclusion about the matter.
Hope this goes well for you. I am going through a case like this with Pixsy though mine is regarding a free image from Flickr. I'm interested in how you'll do the small claims court part. I'm looking at various options. I've gone through as much contact as I want with the copyright troll firm. Getting to the cavalier F you stage with them
i'm hoping nothing further comes of it, but as i've not financially benefited from said image use in any way, and the license fee if £30, I believe that asking for a near four figure sum would be very difficult to justify.
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Re: Copyright Infringement on a non-commercial website

Post by stevedavies »

I am pretty sure it will not be justified and I'll be amazed if your case or mine end up in court wasting a judge's time. Why would any lawyer want to bother? I'm not clued up on success tales at the IPEC but I can see from many posts around the web that these trolls just hope that folks will cave in and pay up. I read that a low percentage of so-called cases actually get anywhere in court. Quite frankly, it's Pixsy who should be in court and also PA media for harassment. Wonder if anyone has tried a counter claim against them??
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