Copyright infringement via Permission Machine, acting on behalf of Alamy

[AndyJ]

Hi Lee,

I can't find the specific plugin you mention on the Wordpress site, but from your description of it, it sounds a bit irresponsible if it creates the impression that it allows you to legally select any image from the internet and just use it. Such action will obviously lead to infringement unless the necessary licence or permission is obtained first.

Turning to Permission Machine's claim, yes, you are right to question the amount being demanded. It is fair to say that PM have provided one explanation for how they arrive at the figure, but equally they could have said 'we just pluck an arbitrary figure out of the air and say that's what we charge'. You do not have to accept their demand if you think it is unreasonable, and they then have to consider whether it's worth their while to take you to court or not. I have explained on page 2 of this thread what the court would consider was a reasonable claim for damages, and that is a long way below even PM's amended demand. However if the copyright owner takes you to court and you lose then you would have to pay the court fees (say around £70) and possibly the claimant's travel and loss of earnings on the day of the hearing (say another £100*), plus the actual damages which will be around £35.99, so all up around £200-250 plus your own expenses for attending the hearing etc.

On that basis, £272 begins to look more attractive, as it means you won't have the stress and hassle of defending the claim in court.




*The loss of earnings refund is capped at £90 per day or part day for the claimant alone (ie the actual owner of the copyright, not Alamy or PM or any lawyers etc).

[lee]

Thank you for the reply. My main issue with this is the predatory nature of how they scour the internet looking for people to fine.

I'll send a counter offer today to see if they're willing to meet in the middle.

[shaunyness]

Hi all,

I have not heard from PM since February 24th, when they offered me a slightly reduced fee. If that changes, I'll write again.

Shaun

[AndyJ]

Thanks Shaun

[JimmyL]

Hi All,

New to the forum and thanks to everyone for posting your experience of dealing with this company so far. We too have recently received an email and a demand for almost £400 for an image which is displayed on a blog post from a number of years ago.

Have immediately removed the image in question so as to demonstrate that any potential infringement is not flagrant and that we are taking reasonable steps. I regard the demand for £400 to be excessive as similar images are available on Alamy for just £36.00. I do though understand that if the proper license was not bought then we should pay for the license and in addition and admin charge to boot and simply deleting the image should not be the end of the matter for either party.

Questions for Andy J if i may... Looking at previous posts and replies am i to assume that the following would be a good start to communications..

1. Acknowledge email and confirm that the image has been removed. Alongside this also request a breakdown of how the figure has been created.
2. Depending on their response return with a counter offer. I see from others in the forum this looks to be the image license fee plus around £30.
3. I fully expect there will be a templated response from them and if i am lucky an offer of a reduction of about 10% - which would still make the amount circa £350.
4. At this point i guess it's a case of weighing up whether they would take us to court or not.

On 4 i would be interested to hear your thoughts on just how financially burdening a number of back and forth email and potentially a court claim could be for such an infringement? I have read through your replies previously and you mentioned that they can claim costs including things like travel, court fees etc.

Was wondering if we could find the business in a scenario where they include costs such as paying a solicitor on their behalf to attend court, time spent writing letters, emails etc. My concern is that potentially the more back and forth I have with them I am actually increasing the value of their claim as they may want to argue to the court it has cost them to engage in correspondence with me.

Hope that this makes sense... I guess what i am trying to ascertain is would a court say well you don't have a license for the image, you have rejected their offer of £400 and now you have made them engage a solicitor to write a load of letters at £X per letter and engage a £Y an hour barrister to attend court so therefore you are liable for all of their costs in pursuing you and we end up with a huge legal bill.

Thanks in advance for the input Andy and look forward to your reply.

J

[AndyJ]

Hi Jimmy,

As you have read the previous responses on this and, hopefully, some of the other threads which deal with much the same scenario, I'll jump straight to your specific questions.

Yes, by all means acknowledge their email and let them know that the image has been removed. You can ask for a breakdown if you wish but since you will probably get the same boilerplate nonsense you have already read about, I would be inclined to leave that bit out. Thus you can jump straight into making a counter-offfer which, as you say, should be based on the actual licence value of £36 plus some sort of admin fee. The important thing is to make it very clear to them that you understand what the consequences might be if they decided to commence court action and you defended the claim, namely that the damages which the court would award would be based on the market value of the licence, and since there are no grounds for any additional damages for flagrancy, that sum would not actually amount to a viable claim on their part, since the court does not award any legal costs or reimbursement of administrative costs to the winning party, assuming they do win the case.

And to answer your last question, the rules of the small claims track of the Intellectual Property Enterprise Court (IPEC) mean that their legal costs will not be awarded against you. All you might have to pay in addition to the damages are the court fees for filing the claim and the hearing fee, and the claimant's (ie the photographer's) expenses for attending the hearing: these cannot exceed £90 for loss of earnings, plus his travel expenses. All of this could amount to between £200-300 in addition to the damages. Obviously this figure begins to approach the amount currently being demanded, but it's important to note that the claimant will already have had to pay out to cover the court fees plus his travel etc, so the only real gain from their win would be the £36 damages. Since this would not begin to cover the actual costs of Permission Machine in bringing the case, this is why the economics of your counter-offer work in your favour. PM are simply not interested in pursuing claims to court where they cannot recover their costs.

[JimmyL]

Hi Andy,

Thank you for taking the time to get back with that information. I have now made contact with Permission Machine, who are now trading under the guise of Visual Rights Group.

In first instance i have acknowledged their email and informed them that the image was removed very swiftly once their email arrived. Due to not being able to find the image on the Alamy website i have started off by asking for proof that Alamy do hold the rights to the image.

Fully expect them to be able to evidence that in some way and at that point i intend to make an offer of a much reduced, but justifiable, amount and will post back to the forum updates. I may also possibly post some follow up questions for you Andy depending on their replies!

Looking at this and many other forums these seem to be just one of a number of companies engaging in this practice and something really needs to be done to curtail this. Quite obvious that they are simply playing a numbers game in which they are hoping to scare and intimidate vulnerable individuals into parting with huge amounts of cash to line their own pockets by saying that they can claim up to £50,000 if you choose not to pay them. Its tantamount to extortion and cyber bullying, simple as that.

Not sure if anybody else on the forum is seeing these messages still who have had similar contact from PM/VRG but might i suggest that it may be a good move for everybody to send an email to BBC Watchdog and share their experience?

J

[Habbers]

Hi Andy

Like many others on this forum I've received an email from Vision Rights Group who claim to be instructed by a company call Visions Video and Photography which appears to be an image library based in Holland, accompanied by a signed letter from the latter who are purporting to be the copyright holders relating to an image on our website. I did a search on their library and the picture in question does not appear to exist there, plus all the images they have are watermarked with their name and the picture in question never had a watermark or any other copyright indicator. It makes no sense (for the library or the copyright owner) that an image library would go to the trouble of obtaining copyright over a picture and then not use or market it in any way. I have requested evidence that they have a legitimate interest in this image from the copyright owner as anyone could create a letter claiming to be a copyright owner.

In general I know how to proceed from all the excellent advice on this website so don't need you to go through any of that, but am particularly interested in this aspect. I have not made any admission of guilt but have removed the picture from the website and informed them of this. To what extent can I stonewall them if they refuse to provide this evidence without being seen to have been obstructive and prejudicing my position if it does end up in court? I would prefer not to make an offer without the evidence, which I don't anticipate they will provide, but should I make an offer to cover my back? Also if the image is not in their image library how can you then say the copyright owner has been deprived of income when there is no means or mechanism to compensate him/her/them? I have a date stamped screenshot of the search proving the image is not in their library.

Thanks

[Habbers]

Hi Andy -they have now replied and provided a link to the image library, so my search wasn't specific enough and the image appears on their website. It is watermarked so wherever the image was picked up presumably they either had a legitimate image or had removed the watermark. I guess it's not worth me pushing the point then on establishing their holding of copyright?

Thanks

[AndyJ]

Hi Habbers,

The existence of the image on their site and the watermark are relatively conclusive on the copyright ownership issue. So as long as you have information about their normal licence fee, you should be able make a counter offer, if you wish.

[Habbers]

Thanks Andy., I'll keep you posted.

[Habbers]

Hi Andy

I asked for a breakdown of costs and the following is an extract of their response:

The client in question here is ‘Visions Pictures’ who are registered in the Netherlands and as such, they have two options or venues to enforce their rights:

- the option under Dutch law and before the Dutch courts (as the internet is international, Dutch courts are competent as (part of) the infringement has taken place in the Netherlands Case 68/93, Shevill and Others v. Presse Alliance S.A): the European Directive applies in this case.

- the option under UK law and before UK courts. UK is a member of the TRIPS agreement and therefore acknowledges and enforces copyrights of Dutch subjects under its own laws, of the Copyright, Design and Patents Act 1988 would apply, namely Section 97, part 2:

(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.

The damages under this law would be higher than calculated under the EU Directive. See e.g. Absolute Lofts South West London v Artisan Home Improvements, where 300£ was awarded for missed license fees and 6,000£ for additional damages taking into account amongst others the need for a deterrence and unfair profits.

Under Section 97, part 2, the damages of Visions would 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.
• Profits made from the sales of the product for which the image was used to advertise.
• Damages arising from Flagrancy.
• All costs Visions had to incur to enforce its rights.

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 outlined.

Again from the excellent information previously provided on your posts I know the response to their option 2 but is there anything to worry about based on their option 1 re Dutch courts?

Thanks and Kind regards

Habbers

[AndyJ]

Hi Habbers,

The main thing to note about Option 1 is that although they talk about 'the' European Directive (I assume they mean the Enforcement Directive) now that we are no longer in the EU, that is pretty irrelevant. Yes, the Dutch courts may decide that they have jurisdiction to hear the case but even if they do and find against you, the award of the Dutch court would still need to be enforced in the UK, and that involves considerably more cost and hassle now that we are no longer an EU member. The main factor on which a court will decide if it has jurisdiction is where the harm occurred. Assuming that your website is written in English and quoted prices in pounds and not Euros, then self-evidently you weren't targeting viewers in the Netherlands or elsewhere in the EU. The second factor is where the parties are domiciled. You, I assume, are based in the UK and Vision Pictures is in the Netherlands, so that is the only factor favouring the Dutch court option. If the Dutch court was to hear the case, you would still be able to defend yourslef and the court would not make a judgment unless they were satisfied that you had had an adequate opportunity to submit your defence, so this would not just happen without you knowing.

Vision Rights Group are after a quick settlement because the longer it goes on the more it costs them in time and staff costs, so they will not want to go to court in either country unless they are assured of getting a decent amount of damages. Theoretically the decision on whether to go to court lies with the copyright owner, so while Vision Rights can huff and puff, unless their client is willing to take this step with the initial upfront court costs, this won't happen.

[Habbers]

Great, thanks Andy. So broadly do the same sort of guidelines apply in Dutch courts for copyright issues, i.e. compensation for loss of licence fee for copyright owner (i.e. only the usage fee missed out on) or based on profits made, not both, and no punitive or other damages assuming no aggravating circumstances?

[AndyJ]

Hi Habbers,

I'm sorry I know very little about how Dutch copyright law is enforced. Obviously the courts there will apply the EU Intellectual Property Enforcement Directive I mentioned previously, and that contains provisions for awards of damages to be 'dissuasive', that is, they may contain an element of punishment to deter others. And unlike the UK's system of common law, the Dutch system, as in many other European countries, is a civil code system (Burgerlijk Wetboek). The fundamental difference between the common law and a civil code is that the former tends to be substantially based on earlier decisions of the court in interpreting the law (precedence) whereas the latter relies more heavily on the law as it is written in statutes which tend to say what is permissible and anything which is not stated as permissible is therefore impermissible. That's a gross over simplification but it will have to do for here. That said the Dutch Burgerlijk Wetboek is said by some to allow the courts too much discretion.

One thing which, I think, will be the case with the Dutch courts is that if you are the losing party you can expect to pay some or all of the winning party's costs. In fact the UK IPEC small claims court's rules on this subject are something of a novelty in this respect, designed the make litigation at this level (claims under £10,000) simpler and fairer. The second thing to bear in mind is that Dutch copyright law is, again like most other continental European countries, based on the concept of author's rights. This puts the interests of the author and his reputation etc at the heart of the justification for protection. In practice this means that the Dutch courts are more likely to take an infringement of the moral rights of the copyright owner (omitting to provide a credit, for instance) more seriously than a UK court might do. I don't think you have said much about this asppect in your case, so it's hard to say how the court might react to any defence you may have, assuming that you did not, in fact, knowingly omit a credit to the author.

I hope this helps a little.