fairlicensing@pamediagroup.com - infringement

[bullnation]

Hi,

I received an email from the above address last week:

"We have noticed that you are currently using 1 image/s from our collection on your website. PA is the national news agency for the UK and Ireland and owns the copyright to images taken by our photographers in the course of their employment with us.
We have been unable to find any licenses for this usage of our imagery by your organisation and are writing to check if you have a valid license. Please send us a copy so we can review and close the enquiry.
If you settle within 7 days, we offer a 10.00% early settlement discount as a gesture of goodwill.
In addition, we request that you remove the imagery from your website with immediate effect."

They have a case ID for me, and are demanding £1,494 (which they state is their licence fee) plus 25% (£373.50) admin fee.

However, the photo in question is on Alamy for £15 licence fee?? - surely I should just pay £15 plus 25% admin fee?

Also, I have a question. The photo in question is of a world champion boxer. it's a photo of him in the ring after winning. The boxer is a friend and client of mine, and the image was just used above a testimonial from him on my website.
- Does the fact the image is of him and he is happy for me to use it make any difference? Or is it just down to licencing of who took the photo?

Many thanks in advance.

[AndyJ]

Hi bullnation and welcome to the forum,

Yes I would agree that the Alamy fee and a 25% 'admin' fee is entirely appropriate for your counter offer.

Unfotunately the fact that the image is of a friend is of no relevance to the claim. The friend, as the subject of the image, has no special rights with regard to copyright and so he can't authorise you to use the image.

[bullnation]

Thanks Andy - I thought that may be the case, but wanted to check.

Thank you for taking the time to reply

[bullnation]

update:

After a few weeks of hearing nohing, I have just received the following reply:

Thank you for your email.

"The detected image is under PA copyright and is available to license via the Alamy platform, but it remains under PA copyright. To reiterate, Alamy is not the owner of the detected image copyrights, and in Alamy’s general terms (which are merely cited as a reference point with respect to establishing the amount of the fee to be paid when copyright infringement has been committed) they explain that if an image/s is infringed, then all costs associated with that will be sought, which would be the same price as we're asking

The current settlement consists of a PA Commercial Website license priced at £1494, which is for an image being used on a Homepage or banner up to 2 years. There is also a 25% case admin fee included to cover the cost of creating the dossier – internet scan, validating contact details; the costs of recovery and communication, which is set at £373.50.

Additionally, there was a 10% early payment discount, which ended on 20/03/2024. The discounted price, if paid on or before that date, meant the total settlement fee was £1680.75 to conclude this matter.

Please view the Editorial and Commercial Rate Cards for website usage on the PA images website:
https://www.paimages.co.uk/ . Please scroll to the bottom of the page to view both Rate Cards for Editorial and Commercial website usage.

However, I want to amicably conclude this matter and, as a gesture of goodwill, I have removed the case admin fee and extended the 10% early payment discount a further 7 days to 07/05/2024, which now leaves a total of £1344.60 to conclude this matter."

I was hoping to get the thoughts of someone more knowledgeable on the matter? - My gut feeling is this is not a fair demand and have no intention of paying such an amount..

[stevedavies]

Nothing fair about it. It's hypocritical of them to use the word "amicably" just after a legal action threat. I get the same crap from Pixsy like "let's reach an amicable solution."

I can't see how they think that figure is justified if the image was available on Alamy at a much lower price.

[AndyJ]

Hi again bullnation,

No, of course this is not a fair demand and you are right to stick to your intention.

They are deliberately confusing two different things: the terms and conditions which might apply if you had obtained a licence from Alamy, and the damages which are applicable in a civil dispute. As we frequently explain, in a civil dispute a copyright owner is only entilted to damages which reflect the loss he has sustained through the correct licence not being obtained. The second point is that if the image is/was legally available with a licence through Alamy for a small percentage of the fee which PA say they charge, then only a moron with too much money would pay for a PA licence. Therefore the Alamy fee represents the amount that the copyright owner has lost, not some notional overpriced nonsense. Furhermore if this case went to court it would be dealt with on the small claims track of the IPEC (because it is under £10,000) and using that route, no legal or other ancilliary admin fees are admissible. So PA are deluding themselves if they think you are liable for these. And since you are not in a contractual relationship with Alamy due to your oversight in not getting the licence at the appropriate time, their terms and conditions are irrelevant.

As you know, you have a further ace in your hand. If PA feel feel so aggrieved about this that they take you to court, then provided that you defend yourself*, the most PA can hope to recover is the basic damages (ie the Alamy fee) plus the two court fees (roughly £75 in total). That is it. Because they are a company PA will have to send a legal representative (either a solicitor or barrister) to present their case, and this cost (upwards of £1000 I suggest) will not be recoverable. Hardly a wise business decision, to spend £1,000+ to be awarded £10-20, just to get a theoretical 'win'.

*The IPEC small claims court is set up for litigants-in-person and is very understanding when there is an imbalance in the legal knowledge of the representatives of the two parties. My second paragraph outlines your defence so you really wouldn't need any additional legal expertise. That said, were the worst to happen, you could probably receive some assistance in putting together your defence from the Support Through Court unit (the Manchester STC unit details are here: https://www.supportthroughcourt.org/loc ... anchester/). The IPEC Small Claims court is based in Manchester but can sit in a number of regional Courts.

[bullnation]

Thank you for your input - that is extremely interesting and helpful.

My reply to them was to say that even if I follow the link that they provided in their email, and locate the image that I used, their own website directs me to Alamy to purchase the licence....so even through that route I cannot even see the price that they suggest it would cost through them.

I made a counter offer, so I will wait to see what they say...and will keep your information in mind for a possible retort.

Many thanks

[bullnation]

AndyJ - I would value your expertise on some extra info which may influence this case.

The image that I had used is an image of a boxer next to a testimonial on my website. So I believe this would count as commercial use?

I have emailed Alamy to see what their cost would be to use in this manner, they have replied:

"I have checked and unfortunately, image 2HXH5WX is only available for editorial use such as newspaper or magazine articles or within books. It's likely that the contributor has restricted the image because we don’t hold any 3rd party releases related to property or people who are featured in the image."

I am concerned that as the Alamy licence was for editorial, that the argument that I would have paid the cheaper price there will be invalid, and infact PA's quoted licencing fee of £1000+ will be enforced?

Any advice would be appreciated, as always.

Thank you

[AndyJ]

It sounds as though your use of the image in connection with a piece on your blog about the person in the image would be editorial rather than commercial.

[bullnation]

Hi Andy,

The use of the image was alongside a testimonial from the boxer regarding my sport injury clinic. It wasn't a blog.

That is why I think it may be classed as commercial?

[bullnation]

Hi Andy,

Me again! - I just wanted to forward the last couple of correspondence between myself and PA, to get your opinion and whether I need to get legal help....or pay?

Good afternoon,


From Me:
Thank you for your response to my email from 6 weeks ago on March 19th.
I would appreciate it, for my understanding, if you could please outline which sections of the CPDA you request if referencing?
I appreciate the gesture of removing the the £373.50 admin fee, yet the nature of this seems to highlight the somewhat mercinary
nature of your approach.
The issue that I have, is that even if I search the image on paimages.co.uk I
am still directed to Alamy to purchase the image, at a fraction of the cost that you outline. As such, I object to your request and decline the amount that you have created.
As a gesture of my good will, I am happy to offer a generous settlement of £40 plus at 25% extra to cover your admin fees, £50.
I look forward to your response. In the meantime I will seek legal advice with regards IPEC claims.

Their response:

Hello,

Thank you for your email and we reject your settlement offer.
For reference, PA is the copyright holder and I can also refer you to Clause 5 of Alamy's General Terms for information:

5. Indemnification for breach.
You agree to indemnify Alamy, it's subsidiaries, its affiliates, and licencors against any losses, expenses, costs or damages howsoever incurred by any or all of them as a result of your breach of the terms of this agreement or your unauthorised use of the content and related rights.

In this instance though, it is PA defending their copyright and not Alamy on our behalf.

I hope this helps to clarify our position.


I would hugely value your expertise on this - They seem not to be letting anything drop here, and I am not sure what my position is.

If I follow the like for commercial useage of the images from PA it links to a excel spreadsheet where it starta the £1400+ figure. But it seems ridiculous?

Thank you in advance

[AndyJ]

Hi bullnation,

As I think you may be aware I can't advise you on how to conduct your litigation as I am not your legal advisor. However I can comment on PA's response and talk in general terms about how to approach these sorts of demands. PA quoting Alamy's terms of business is totally irrelvant, firstly because they are insisting you pay the PA fee not Alamy's, and secondly since you are not currently a customer of Alamy you are in no way bound by their terms. The fact that they were quoted at all indicates an incoherence in PA's approach and justification.

PA need to be made aware that you understand your legal position with respect to a civil claim. First of all, any damages that a court would award would only reflect the true market value of the licence to use the image in the way that you have done. As far as I can tell PA have yet to fully justify why the value of an editorial licence differs so markedly from a commercial licence. And even if the court (in this case it would be the small claims track of the Intellectual Property Enterprise Court (IPEC), allowed the full amount of £1344 or something less than that, no legal or admin fees could be added to that, and since PA's legal fees are likely to exceed £1000 or more probably £1500, they will actually have to spend more than they can hope to be awarded in damages. Add to that the degree of uncertainty that the court will agree that the higher fee represents to true market value, and it doesn't take a degree in economics to see that they lose money on the deal if this goes to court. They also run the risk of undermining their business model as far as this kind of demand is concerned, if they lose the case (in the sense that the court awards much lower damages based on the Alamy licence) and this result gets wide publicity.

Obviously you do not want this to go to court, but as you can see, neither do they. This means that their ultimate threat - of suing you - is one they want to avoid at all costs. Settling the matter for a reasonable counter offer figure makes sense for bot of you. You need to show them that you understand the relative strengths of each other's hand of cards.

Good luck.

[bullnation]

Thank you so much for your reply - It is really useful to avoid feeling intimidated by the jargon they respond with. Gives me a bit more clarity about how to proceed with this issue to find a fair resolution.

Many thanks once again.

[bullnation]

Hi Andy - I would be grateful to get your opinion of the latest correspondence that I have had on this:

After your last useful message, I responded with the following:

"Thank you for your response.

There are a few points I would like to address with regard to your correspondence:
- For what reason are you quoting Alamy's terms of business, when the issue you have brought to me is regarding the payment of PA's fees?
- I am not currently a member of Alamy, as such I am not bound by their Terms and Conditions.

I am aware of my legal position on this matter with respect to a civil claim:
- Damages that a court could award would only reflect the true market value of the licence.
I have made a very reasonable settlement offer to you, based on the amount the image is being showed online (plus a good will admin fee). I am yet to understand why your figure is so different from the editorial licencing fee that I have seen - can you break
this down and demonstrate?

- No legal or admin fees can be added to claims going through the IPEC. Therefore the cost to PA, through legal fees, to take this matter to court would likely outweigh what could be awarded in damages. Particularly that the court may be unlikely to agree that
your extortionate 'fee' represents true market value.

I therefore kindly ask that you consider the fair and reasonable offer that I have made, and we can reach settlement on this issue."


After some a 6 week delay, I have received the following:

"Thank you for your email and sorry for the late reply.

We do not accept your offer. The amount we are requesting is the missed license (this is the same price that you would have paid us to license it before you used it on your website) plus the case administration fee (this is the cost already incurred by us using the services of a copyright protection agency to look for uses of our images online that may not have a license, the creation of the dossier and our administration), which was previously removed.

I was making you aware Alamy is not the copyright holder of the image, the copyright holder is PA and we are pursuing a settlement for your unauthorised use of our image.

Please view the PA Editorial and Commercial Rate Cards for website usage on the PA images website:
https://www.paimages.co.uk/ . Please scroll to the bottom of the page to view both Rate Cards for Editorial and Commercial website usage.

However, as a gesture of goodwill, I have extended the 10% early payment discount a further 7 days to 24/07/2024, which now leaves a total of £1344.60 to conclude this matter. (Please note, the case admin fee has was previously removed.)"


My thoughts are that I dog my heels in and insist on a settlement? Should I make a revised offer?

Your thoughts, as ever, hugely appreciated.

[bullnation]

Would the following reply be reasonable?


"Your stated costs for commercial licence are vastly different from your quoted editorial cost – please can you advise why these values differ so markedly? This does not reflect true market value, and it is my opinion that the IPEC view may agree with this. In either case, the legal fees for PA taking this matter to the IPEC would likely incur legal fees that match the amount you are claiming for.

I have made my position clear. I have communicated timely and reasonably. I have made a reasonable settlement offer previously – which you have rejected. I am willing to make a further offer in view of bringing this subject to a close.

Therefore, as a gesture of goodwill, I will off £75 to settle this case. I encourage you to consider this settlement as generous, as escalation of this case to the IPEC would not be beneficial to either party."