Copyright infringement via Permission Machine, acting on behalf of Alamy

[AndyJ]

Hi AV,
I like the tone you have adopted. Businesslike and letting them know you understand how the law and the courts work. My only criticism concerns inviting them to raise an invoice. If they do that it will, in effect, create the impression of a contractual relationship between you, as client and supplier. This then would allow them to pursue the claim as if it was an unpaid bill for services rendered and they could do this through the standard county court system, by-passing the IPEC. This would circumvent the specialist knowledge the IPEC has when hearing the merits of the claim and your defence. That said, I would hope that the county court staff might pick up on the fact this was a dispute about intellectual property and decline to process the claim, as IP claims can only be dealt with by the High Court, of which the IPEC is a part.

[snapperman67]

well this has been an interesting thread but with little legal validity in advice- I would strongly suggest you speak to a qualified IP solicitor before proceeding. A defence of not knowing was thrown out in the legal precedent set by Hoffmann v DARE in 2012. Im not sure where Andy is getting his legal advice from but it seems horribly out of date. If you don't have a license from the photographer/author of the image, then you have committed an infringement - the photographer is more than entitled to seek redress under the copyright, design and patent act 1988 for their normal license fee plus any additional uplifts from not complying with the act (cropping, removing meta data, editing etc) see - https://www.webbaviation.co.uk/WebbvCar ... dgment.pdf
Other good judgements to look up are https://www.carruthers-law.co.uk/news/c ... s-limited/
Trying to base your offer on cheap pic libraries is likely to inflame the situation and guarantee a trip to the High Court in the UK. Another recent judgement obtained by Jonathan Webb was for £5800 on image that could have been licenced originally for £380. For US infringers, I would suggest looking at this judgement for an actual claim for one image pursed by Pixsy https://www.emphasisphotography.co.uk/s ... rtners.pdf
If you have not heard anything from October - IPEC are probably processing the claim form through London and this can take some time as it does not do digital submissions
Please don't use this forum for legal advice - its badly written legalise with no legal precedent - ring a specialist in IP - Black Lion LLP, Swan Turton, Barker Brettell etc

[AndyJ]

Hi snappperman,

Welcome to the forum, and thanks for setting out the view from the perspective of a photographer.

I would stress that we always emphasise that the advice given here is not legal advice and anyone who is in doubt about where they stand legally should always consult a solicitor who specialises in intellectual property matters. That goes for photographers too, not just defendants.

If you read this and the other similar threads carefully you will see that we are not taking a stand against photographers, or even the stock agencies who represent them. I fully acknowledge that many photographers face a continual problem with people who take and use their images without permission. The problem here is the claims management companies like Pixsy, Permission Machine and others. They are making demands which are wholly unreasonable in order that they can make money from what is, usually, a legitimate claim over copyright infringement. By doing this in a way which makes some people believe it's a scam, they bring the whole process of copyright enforcement into disrepute. If you have any experience, as a photographer, of these companies it would be good to hear about it. I rather suspect that few photographers actually gain by their activities, compared to what they would have got through the more conventional system of pursuing a claim.

You may be aware that the trade association which represents picture agencies and picture libraries, BAPLA, has its own code of practice. That code contains the following statement

Use commercially reasonable efforts to pursue infringements and enforce copyright in represented images recognising that failure to police usage diminishes value of the industry’s services.

I think we can all agree on that.

[tackler7]

For US infringers, I would suggest looking at this judgement for an actual claim for one image pursed by Pixsy https://www.emphasisphotography.co.uk/

How do we know this was a Pixsy pursued case?

It appears to an undefended claim led by the Photographer direct, as indicated by the court costs awarded.

[snapperman67]

as with all cases that go to court, the name of the plaintiff will be the copyright holder not the IP enforcement agent. Speaking to other photographers, by the time the case actual gets to the hearing, 99% of defendants fail to attend. Even those with legal representation, seem to bottle out given the costs of hiring a IP barrister (typical UK cost - £2500-£3500) for a 2-3 hour hearing. In IPEC (small claims track), both parties are liable for their own costs unless it can be proved that one party behaved in an extremely unreasonable manner - death threats, threats of knee capping etc. Most photographers use companies such as Pixsy etc due to the the extremely negative responses they have received from infringers - I recently had threats to have my house burnt down by a glazing company. The onus, as far as the courts in the UK are concerned, it is for the defendant to prove that they have a valid license to use the infringed images/content - as stated before, not knowing (ignorance) is not a defence. As far as a statute of limitations is concerned, it is 6 years from the date the copyright holder starts chasing the infringement - not from the date of the start of the infringement. This argument has been used in numerous cases where defendants such as Newsquest, Reach plc, Daily Mail have tried to use it and failed . Given there are over 5 billion web pages, courts do not expect photographers/creatives to know instantly that there is an infringement - Pixsy image search engines can take up to 2 years to discover an infringement from the date of upload of the image

[abs]

Hi all
I posted on here a couple of months ago and today I heard
Back from fairlicencing on behalf of alamy.
I had sent a counter offer of 60.99 and all my reasons why.

Could I ask what you would do next Andy ? Thank you from Abs




​It does not matter how large, or for how long the images were on your site, or whether you profited from them, or not. It is that copyright has been breached (images are protected by copyright from the moment of creation). Infringements are rarely malicious or intended, and we do understand that these things happen. But at the end of the day, if you have used an image without a license you are in breach of the copyright. So we are asking you to prove that you have a valid license for your use of the image, or pay the settlement.

We understand that these are challenging times at the moment and we can look into a discount for you. BUt in order for me to do this, please can you send across proof of unaffordability (for example your latest Profit and Loss statement, or bank account with the key data redacted).

[AndyJ]

Hi Abs,

You don't actually need to do anything at this stage. You have made your counter-offer with the reasons which support it, and so it is now up to them to decide if they want to escalate matters or negotiate towards an acceptable settlement. Instead, their response is to stand firm. You can do the same.

[abs]

Thank you for the speedy reply Andy - I really appreciate it and I will stand firm

Best wishes and happy new year from Abs

[phopho12]

Hi all,

I am receiving demands from this company.

They are claiming I used an image that was unlicenced in an article on my website. However, I have both a screenshot of the article they refer to and the background WordPress information which shows the article contains a different image and it was published in 2017 and never amended.

They have replied:

"We appreciate the information you have provided, however, the image you are referring to is different to the one we are contacting you about which belongs to our client.

Please see the image in question attached.

Please can you provide proof of a license that covers the use of the image on your website?"

My point is the image is not on my website. Is there anything further I can do?

[AndyJ]

Hi phopho and welcome to the forum.

If you are certain that the image they are referring to is not and never was on your site, then you have nothing to worry about. You don't mention how you acquired the image which is actually on the site, but it might be prudent to check that it is in fact fully licensed.

I don't understand their response. I assume that Permission Machine have provided a screenshot or full link to the image which they are alleging is the infrining one. If that image is not anywhere on your website, then I can't understand what they are alleging. Is it that you have somehow changed the image since they first discovered it?

If you are very sure of your facts, and are sure that you haven't at any time used the image they are talking, since you have already informed them of that fact, you can ignore any future correspondence from them, unless of course they issue a court claim form which you most definitely should not ignore. Ignoring a court claim form could lead to a default judgment against you, when in fact you have a strong rebuttal to their claim. If you choose to continue to correspond with them, make it clear that unless they can provide actual evidence that their image has been infringed by you, then you will treat any further correspondence from them as representing a course of harassment contrary to section 1(1) of the Protection from Harassment Act 1997, and take action as necessary.

[phopho12]

Hi, thank you for the reply.

The image they are claiming was in the WordPress media library of my site, which I thought was private. When I first posted the article they reference in the screenshot provided I had considered buying the Alamy image but in the end went with another image which is licenced. The Alamy image was never used on the article which was posted in August 2017 and has never been edited. It appears the Alamy image has stayed in my media library tho.

Looking at your previous posts I can’t see how they can prove loss of profit from an image sat in a media library unused.

[AndyJ]

Hi phopho,

Thanks for the explanation. It would seem that although you have not made the image available to the public via your blog/site, it has at some stage been copied and so PermssionMachine have been able to find it. On that basis I think you need to deal with their demand in the standard way that we discuss thoughout these threads, which is to offer to reimburse the photographer the standard fee that Alamy charge to use the image, which is generally in the tens of pounds. It is the loss of this licence fee which forms the basis of the claim, and so that is the relevant amount for you to offer to pay. Unfortunately the fact that you didn't actually use the image is not relevant. It's a little bit like paying road tax on your car and then keeping it in the garage. You should also delete the image from your library if you haven't done so already.

[DonnieD]

On the thread late but I can add some experience to this.

I have bought and sold websites for many years (25+) and my companies are highly visible and legal correspondence links are available via companies house (so makes me ripe for traceability, access and challenge!).

I have had dozens upon dozens of these letters over the years - mainly as a result of websites/blogs/ecommerce sites that I have taken ownership of that have had stock images on and as a result I have been hit with notifications and legal letters. As a general rule I do not build or manage sites myself with stock - its a bad habit and sites always perform better with bespoke images from a conversion and audience POV.

However as mentioned I sometimes open ourselves to this trap through laziness of not removing stock immediately upon acquisition.

I have always ignored the letters. 100% so far I have never been hit with any court proceedings or further action.

I understand the law well. Fundamentally companies like this are better marketers than lawyers. The letters are mostly opportunistic boiler plate and they operate exactly the same as TV licensing. Fear, fear fear in the hope that the recipient pays the bill.

In general terms awards are limited to any loss the artist can demonstrate to have suffered as a consequence of the breach of copyright which 9 times out of 10 highly limited. They also have to show that the website owner (if at all they can be traced!) knew the image was subject to copyright and had profited from it. Awards if pursued would be limited to the commercial licence which often is no more than £10-50.

No corporate entity is taking you through a small claims process for this amount of money.

An IP lawyer is bound by professional standards to advise that you respond and act properly and come to a settled agreement.

I would say, as a non-lawyer with a lot of experience in these things: ignore them and do not sucuumb to the fear marketing.

[AndyJ]

Hi Donnie

Welcome to the forum and many thanks for your insight on dealing with claims like this.

I would only quibble with one thing. The owner of copyright in an image does not have to show that the alleged infringer profitted from their use of the image. To prove infringement all it is necessary to show is that copyright exists in the particular image, the claimant is the owner of that copyright, and that the defendant copied the image without permission in circumstances where none of the exceptions to copyright applied. The only time the subject of profit arises is if the claimant wishes to opt for a method of assessing damages called an account of profits, in which case the amount of profit made directly from the infringing use of the image becomes relevant, and the loss suffered by the copyright owner is set to one side (he can't have both!). A case which is often quoted by photographers as an example of exemplary damages, known as Absolute Lofts South West London Ltd v Artisan Home Improvements Ltd & Anor [2015]/, is an example of an account of profits case, despite the fact that the learned judge only used the phrase in passing during his judgment.

[DonnieD]

Ill take your technical quibble on the chin lol but (realistically and legal process wise!) my comment holds true - no one is ever being taken to court unless 'profit' can be proven - because the recovery of the commercial licence alone is not enough for any corporate entity to pursue and they are highly likely to be chastised by the court for pursuing.

If I was ever to respond in these circumstances or communicate with Alamy, Pixsy et al - I would be sending them a letter advising that all future correspondence would be charged at a recieving rate of £8 per email/post and threaten a real small claims process.

Like TV licencing - they very quickly stop and they take you off, what they even refer to themselves as, the 'marketing list'.