Fairlicensing Alamy

[Deadman121]

Hi folks,

Long story short is I've received a possible infringement email from Alamy. Doing some research using Tineye I've noticed they had the image showing up since 2021. Although they claim they have represented the image since 2005.

The image itself was being used in a blogpost section to simply handle a top 10 kind of post. Very little traffic goes here sadly. Our main website the non blog element however is commercial-ish.

They said the tineye bit is not proof. Funily enough they didn't say how much we owe them and expect us to go into the portal to check. I've refrained from doing this as I feel this will only enable them to hound us more. But unfortunately they still are hitting our inbox with discount ended and latest email is:

Hi,

This is an important reminder regarding your outstanding settlement for your past use of our imagery on your website.

Compensation is due as we have not yet received proof of a valid license and ask that you log in to the payment portal to settle our infringement claim:

View Case Details
Enter your Case Number xxxxx and PIN xxxxxx to access the details securely.

We reserve the right to add additional fees to our settlement request that covers the additional costs incurred if you do not resolve your breach of the copyright-protected image(s), by paying our settlement request.

Damages are suffered given that our right to determine where and how the imagery can be used has been disrespected. When images are used widely without permission, their exclusivity diminishes, and they ultimately lose value. If you have not already removed the imagery from your site, please do this immediately. However, removal of the imagery alone does not resolve the possible infringement and payment is still due for the time it has been online.

If we are unable to resolve this case, we will consult with the CPA (Copyright Protection Agency) specialist that we work with.

You can find more information about your settlement, by clicking the button above.

Regards,

Xxxxxx
Infringement Executive

Wondering what are the recommended next steps here. In all honesty we had a similar situation before where they just suddenly went silent after we provided tineye proof but this time they are continuing to pursue.

Worth continuing to ignore? Or reach out on the basis of fair usage grounds seeing it was a blog post?

Also checked the license cost for the image in question on the website. Seems to be £35 and including vat its £42.

[AndyJ]

Hi Deadman and welcome to the forum,

Sorry about the delay in replying, I've been away for a few days. If we assume that Alamy are authorised to represent the copyright owner in this case - debateable perhaps given the Tineye results - then yes, the copyright owner (not Alamy) is entitled to damages, but not because of their so-called right to control exclusivity, but because under UK civil law the copyright owner is entitled to recoup what he/she has lost through not having sold a licence at the appropriate time. The amount they have lost is the standard Alamy licence rate for the use in question. If you believe this should be £42 then that is what you should offer to settle the matter. Ignore their other waffle about the their additional costs which is largely nonsense.

Unfortunately I cannot see any grounds on which this might be fair dealing, even though it was on a blog post. And I would add, that since this appears to be your second experience of this, you might want to be more careful in future about the material you use. The rule should be that you assume that any image is in copyright and that you therefore need permission or a licence to re-use it. The only exception to this rule is when you are sure that the copyright owner has released it with a free licence such as Creative Commons, and even then, you should be punctillious in observing the terms of the licence.

Good luck

[Deadman121]

Thanks for the warm welcome and no need to apologise for being away. I'm grateful for any response to be fair, so appreciate your help.

I've offered £50 to settle £42 + additional fee and said the £400 they are after is way too much. I assume they will say no in which case what is the best way to handle any follow up and what can I expect to happen?

Furthermore, yes agreed a clean up of images was on the to-do list and this has now been fast tracked and completed. So yes future proofing and avoiding these guys in the future became main priority.

[Deadman121]

As expected. Please see response from Alamy

Thank you for your email.

The cost of the infringement is higher than a standard license fee due to -

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 £100 (this is shown as an Admin fee)
We can not accept your offer of £50. We have a duty of care to our photographers to ensure we find uses without licenses and secure a fair payment for them, which covers compensation to them.

I can look into a discount for you, please can you send across proof of unaffordability (for example your latest Profit and Loss statement, or a 30 day bank statement with the key data redacted).

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Where do I go from here?

[AndyJ]

Hi Deadman,

As we have said many time in these threads, Alamy and the other companies who do this can make up any nonsense they like to justify their inflated claims, but if the matter ever went to court, the only thing the court is interested in is the actual amount of damages that the copyright owner (not Alamy who are merely their agents) has lost by not having a licence sale at the appropriate time. Because Alamy know this, they are highly unlikely to urge the photographer to go to court*, firstly because their inflated claim would be laughed out, but also because it would cost then several hundred pounds in legal fees which they could not recover because the IPEC small claims court limits any additional expenses which might be awarded against a defendant who loses, to the court costs (roughly £150) and the claimant's expenses on the day which cannot exceed £90 in lost earnings.

* Only the actual copyright owner, namely the photographer in this case, can bring an infringement case in court. At that point Alamy and all their so-called expenses fall out of the picture.

[Deadman121]

Thanks for the swift reply! So I assume my offer of £50 is good as it covers the license cost.

If it went to court in theory sounds like I would pay less than £400 regardless is my understanding? Correct? If so, will just stick to my guns here

[AndyJ]

yes probably under £300, However that is extremely unlikely to happen for the economic reasons I gave earlier, so stick to your offer.
Good luck

[Deadman121]

Thank you friend. Will keep everyone posted on how things go. Appreciate the sound advice.

[Deadman121]

Hello. Just an update. Having stuck to my offer I was told:

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Thank you for your email.

As explained, we are unable to accept your offer of £50. I am happy to offer a discount, but I will need to see proof of unaffordability.

As we have been unable to resolve this case directly with you. I will now escalate this matter to our legal team to evaluate litigation options.

Let us once again be clear: If this infringement is not addressed promptly, this could lead to legal action, which would undoubtedly result in considerably higher costs for you.

---
I responded with:

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That's ok. Please forward my offer to the copyright owner if haven't already.

Can you confirm whether or not this has been done

-----

To which they replied

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As per the terms and conditions of the contributor contract, we work on behalf of the copyright holder.

I will not be passing your offer to them.

----

Any ideas what their game plan is? Any risks to me sticking to my offer?

[Disgruntled123]

I don't see why affordability is any of their business. They claim you owe hundreds, you're making the point that the true license is much less than that and have offered a sensible payment on this basis. We went round in circles, with Adrian tying himself in knots with a load of contradictions, and in the end I just said I've made an offer I believe is sensible there was no point in further dialogue. I got told the same as you about passed to the legal team with the threat of action but since then I've heard nothing. I might still, who knows.

I don't think you should ignore new correspondence but you can't just keep saying the same thing over and over. They need to put up or shut up.

[Deadman121]

Thanks for the response how long ago did they stop responding?

Also as Andy mentioned earlier in the thread sounds like with legal fees etc. It will still cost somewhat less than what their asking.

So better to stay put?

[Disgruntled123]

It's been a few months now, but always the possibility their legal team will come alive, unfortunately.