Using a screenshot in a student project

[tumptyteapot]

Hi
I used a screenshot of an Alamy image in my masters project. I kept the branding and watermark and it was thumbnail sized. I was led to believe by the university that this was fair use, it was never used for commercial purposes and I thought with the branding all over it I was advertising Alamy. It was referenced correctly in my dissertation. I put the image on my website, still as a thumbnail to illustrate a point and Alamy are chasing me for copyright infringement.

I thought this was fair use, especially as I kept it low res, with the watermark and Alamy written over it. I emailed Alamy saying I had removed the image from everything I was using it on and that the £400 they requested was out of my means.

This is the most recent email from them. I've bought the image now for £12, but I'm worried if I log on to the portal it will all escalate.

Any advice would be most appreciated.
..................................

This is an important reminder regarding your usage of the imagery we represent that has been used on your website and the possible copyright infringement that we wrote to you about in our first correspondence on the 2023/09/25

We have not yet received proof of a valid license or a payment for our settlement request and ask that you log in to the portal at fairlicensing.alamy.com

Should you continue to ignore this matter, we reserve the right to add additional fees to our settlement request that covers the additional cost incurred.

Damages are suffered given that our right to determine where and how the images can be used has been disrespected. When images are used widely without permission, their exclusivity diminishes, and they ultimately lose value.

We would like to find an amicable solution to this matter, but may have to consider escalating this case to a local lawyer. If it becomes necessary to involve legal representation, the entire compensation of the additional costs will be requested, so the costs to you can rapidly increase.

If you have not removed the imagery already from your site, we ask that you do this immediately, but removal of the images alone does not resolve the possible infringement and payment is still due for the time it has been online.

There is more information available on the settlement portal.

[AndyJ]

Hi tumptyteapot and wlecome to the forum,

First of all you need to check with your university whether their blanket licence with the Copyright Licensing Agency covers your use of this image. Your tutor or supervisor should be able to point you in the direction of the correct person to speak to. If the university licence covers you, this is what you should quote back to Alamy, and hopefully the matter will go away.

On the assumption you have done this already and got a negative answer, you may be liable for copyright infringement. Unfortunately Alamy don't offer any free use of their images even if you include the Alamy watermark. Incidentally, the term fair use does not apply to the UK legal doctrine, which is instead known as fair dealing. However, depending on the purpose of the image within your dissertation the use may be covered by a fair dealing exception, although almost certainly not one of the categories associated with education, since that is what the CLA licence would be for. The most applicable would be section 29 of the Copyright Designs and Patents Act 1988, for the purpose of private study and research. However this would possibly be inapplicable if you failed to credit the author of the photograph - crediting Alamy is probably insufficient. The second exception which may apply is Section 30(1) for the purposes of criticism or review (but again a credit is required). So for instance if your dissertation was on the subject of another copyright work* or works, and the use of the disputed image was closely allied to your examination of the other work or works, that might be sufficient to provide grounds to claim fair dealing under thsi exception.

As already said, both of these exceptions can only help you if, in the words of the statute 'it [the use of the image] is accompanied by a sufficient acknowledgement'.

However even if neither of the fair dealing exceptions apply, under civil law, you are only liable to the extent that the copyright owner has misssed out on selling you a licence. As you have said, the appropriate licence costs £12, and so that is the amount of damages that the court would award against you if indeed the matter went to court, which I very much doubt. Alamy's claim for £400 is therefore wholly disproprtionate and you are right to decline to pay, just as you would be, if they carried out their threat to raise the fee. If your university has law faculty, see if one of the law undergraduates (or even better, a post grad) will draft you a suitable response for Alamy, which makes it clear that you understand where you stand legally and that you will not be bullied into paying their extortionate fee. The basis of your counter offer (assuming that you can't rely on one of the two fair dealing exceptions) should be the £12 fee, to which you might choose to add a small uplift (say 10-20%) as a goodwill gesture. Incidentally their sentence about legal costs increasing if they pass the matter to a solicitor is an empty threat. A claim amounting to £400 would be dealt with in the Small Claims Track of the Intellectual Property Enterprise Court (IPEC) under whose rules, legal costs of the other party would not be awarded against you. In other words if they take you to court they will run up legal fees amounting to several hundred or more pounds which they can't recoup from you, and since they only stand to be awarded £12 in damages, you can readily see that that is not economically sensible.

I hope this helps.

* That is to say a literary, dramatic, musical or artistic work, or a film. sound track or sound recording, or a computer program. A literary work would also include another academic paper for example. Thus if your dissertation was criticising or reviewing an existing thesis or proposal, and your use of the image was directly connected to that criticism etc, then that would qualify as fair dealing.

[tumptyteapot]

Wow Andy J, you are incredible. I've been so worried about this and I really didn't intend to breach any copyright.

This is how Alamy are breaking down the fees, does your advice still apply?

The settlement is £440 which breaks down as follows:

- 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)

It turns out that the university secretary is actually a solicitor and I'm told he protects his students, let's hope that extends to alumni. I've emailed him.

[AndyJ]

Hi TTP,

No, none of that breakdown makes any difference to what a court would take into account in assessing damages. Just taking the first item, there is no scope in civil law for 'compensation for not obtaining prior consent', ie punishment. The other items are all normal business expenses; for example the 'internet scan' obviously preceded the whole claim process and included all the other users of this image, including those who did have licences. Alamy would still have had this expense even if the scan had come back with nil results. In fact their system is almost totally automated using a web crawler and costs relatively little to operate.

It's good to hear that the university secretary is legally trained. I think it unlikely that he will have specialised in intellectual property law, which would have been the ideal situation, but nonetheless he should be able to set you on the right path to settle this matter. You might find it helpful to download a copy of the guidance notes for the IPEC small claims track, which is where the claim against you would be heard if Alamy decided to take things that far, which again I don't think they would.

[tumptyteapot]

Thank you again
Should I log into the portal they want me to or should I ignore that. I'm not sure if the secretary will respond or not, if he does I'll post his reply here in case it helps others.

[AndyJ]

There's no hurry about logging in to their portal until you have spoken with the secretary or otherwise decided how you wish to deal with this claim.

[tumptyteapot]

unfortunately the secretary says it is not a university issue so he can't help