Copyright Aid

Thank you Andy - that seems very logical.
Being new to this forum and having read of the horror stories elsewhere this forum seems like an oasis of common sense and good avice
Best,
Pete

Hello all.

I've also had an email and a letter from Visual Rights Group, where I used an image on my website. I took over the website in 2021, and the article was written in 2018 - but I migrated the website and quite honestly cannot remember if maybe I've used this image in error thinking it was fine to use, or if it was added back in 2018 when the article was written. Anyways - either way it's my fault for not doing my due diligence and I do believe that creatives should be paid for their work, so I have went back to the letter and offered:

• £32.99 for the license as shown on the website
  £70 for the admin fees
  A list of how they've come to the abysmal figure of over £400.

They responded by saying that they multiply the fee by 5 for misuse of their license as per their (Alamys) terms and conditions...

I said in my first reply also, that I'd be more keen in opting for a small claims court case than pay them this absurd fee, because a small claims court would cost £200 - the hearing fee and the court fee plus any travel costs.

They came back and said:
If this case was presented to the Small Claims Court, our client would be able to recover more than your offer. We refer to the Intellectual Property Enterprise Court Small Claims Track (“IPEC”) section 8. This includes:
• fixed sums in relation to issuing the claim;
• court fees (including the hearing fee);
• expenses which a party or witness has reasonably incurred travelling to or from a hearing or
staying away from home for the purpose of attending the hearing;
• loss of earnings or loss of leave evidenced by a party or witness caused by attending a court
hearing, limited to £90 per day for each person (PD 27 para 7.3);
• in proceedings which include a claim for an injunction, a sum for legal advice and assistance
relating to that claim, not exceeding £260 (PD 27 para 7.2);
• such further costs as the court may decide at the conclusion of the hearing should be paid by a
party who has behaved unreasonably. A party’s rejection of an offer of settlement will not of
itself constitute unreasonable behaviour but the court may take it into consideration (CPR
27.14 (3)).

They also said:

As for the calculation of the settlement amount. The settlement we are requesting is not a retrospective license fee, but damages outlined in the law of the Copyright, Design and Patents Act 1988, namely Section 97, part 2:

(2) The court may in an action for infringement of copyright award such damages as the justice of the case may require. So based on this article, the judge will award all reasonable damages. The damages under this law would then 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.
• © damages can be amounted from the costs of identifying and research which we incur to identify the infringement on a technical level and establish whether or not there has been a breach. Specially trained staff check whether it’s the same photo and whether a legal exception to copyright rules applies. The photographer then verifies whether a licence was granted for the photo in question.
• Costs of drawing up and sending files include the costs for drawing up files, taking any screenshots and further documenting the infringement, and for searching for the necessary address and other details. Finally, we’ll double-check the file before it is sent out.

To be augmented or multiplied
• (a) Profits made from the sales of the product for which the image was used to advertise.
• (b) Damages arising from Flagrancy.


I'm not sure how to proceed - still when I add up their list above, it's only slightly higher than the £400, so probably ok to take the risk?

If anyone can advise on how I should respond that would be great - I appreciate all of the advice I've seen so far on this forum

lorr23 wrote: Tue Jul 04, 2023 4:55 pm They also said:

As for the calculation of the settlement amount. The settlement we are requesting is not a retrospective license fee, but damages outlined in the law of the Copyright, Design and Patents Act 1988, namely Section 97, part 2:

(2) The court may in an action for infringement of copyright award such damages as the justice of the case may require. So based on this article, the judge will award all reasonable damages. The damages under this law would then 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.
• © damages can be amounted from the costs of identifying and research which we incur to identify the infringement on a technical level and establish whether or not there has been a breach. Specially trained staff check whether it’s the same photo and whether a legal exception to copyright rules applies. The photographer then verifies whether a licence was granted for the photo in question.
• Costs of drawing up and sending files include the costs for drawing up files, taking any screenshots and further documenting the infringement, and for searching for the necessary address and other details. Finally, we’ll double-check the file before it is sent out.

To be augmented or multiplied
• (a) Profits made from the sales of the product for which the image was used to advertise.
• (b) Damages arising from Flagrancy.

Hi lorr23 and welcome to the forum.

We've discussed the piece of nonsense quoted above before. It all conforms to their approach which is to confuse and intimidate those they go after with these claims. As you have correctly mentioned in your counter offer to them, the only damages applicable here are the amount that the copyright owner has lost out on because a correct licence was not sold at the start. The remainder of the costs which might be awarded against you, if the matter went to court, are the court fees - a known amount based on the value of the claim - and the cost of claimant's travel and loss of earnings which is capped at £90.

Unless they have specified the moral damages* they imply are included in the claim, most likely something to do with a lack of a credit for the photographer, these would not be considered by the court, and since infringement of moral rights is not a matter of strict liability, you would be able to put forward a strong defence against this part of the claim as you inherited the image as part of the website and were not responsible for its original procurement. The remainder of the 'costs' they quote are inadmissible in the IPEC small claims court. They amount to the business expenses of PM/VRG and are of no concern to the issue of infringement. Since I suggest there has been no flagrancy nor any profit made from the alleged infringement the last couple of sub paragraphs are also irrelevant. Even if it could be proved that use of the disputed image had led to profits from the sales of goods, the claimant could only choose one or the other; he can't claim both damages and an account of profits.

We cannot tell you how to reply, but based on the above you should be able to put together something just as robust as your earlier response to them. The important thing to get across is that you know where you stand legally and you won't be bullied by their waffle which tries to portray their legal position as being far stronger than it actually is. As you were very generous in offering an additional £70 in your original counter offer, you may wish to say that this sum is conditional upon them acting reasonably and not extending the negotiations now that you have made your position clear to them.

Good luck.

* the bit about "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" is just nonsense and does not come within the scope of moral rights, so you can ignore that.

Hello all...

So I've joined this forum for the same reason as everyone else, and after a few emails back and forth to the High Sheriff of Shropshire, this is my reply just:

Good morning

I have been recently contacted by Mandy Thorn MBE, High Sheriff of Shropshire regarding your recent emails about a possible without prejudice copyright infringement on a blog post written in June about a young man who is walking from Lands End to John O’Groats in the hopes of raising £16,000.

As Mandy’s agency in her Shrieval year, a position which is completely voluntary and requires a huge amount of dedication, I undertook assisting also on a voluntary basis too, as one of the primary focuses is to spread the good news and champion those individuals in the county of Shropshire who are going above and beyond.

When Mandy asked me to share this amazing young man’s work, in the hope that he might gain some more sponsors I of course obliged, and like every news worthy story, imagery is essential to attract attention. What was key to me was that the header image was one of the Land’s End sign, as this was his starting point in his epic journey.

As such, I looked on istock as I have an account with them and frequently buy imagery from them. Sadly, there were only nine images that appeared, and none were suitable (see attached image ‘istock results’). Even thought I would have been absorbing this cost myself, I would have been happy to pay for an Essential (£7) or even Signature (£20) image myself, had their been a suitable image, as I tend to always have a number of credits available.

I then searched for images on Google and found this image, which was a very generic image but the key was it had ‘Land’s End’ as the signpost.

https://www.t3.com/news/one-man-is-cycl ... iew-and-vr

I dragged it onto my desktop to check the size of the image which wasn’t very big at all, but for the purposes of the blog, it was adequate.

At this point I must add that my husband is a commercial photographer and he himself has a significant istock account, so I am totally aware of the importance of checking any image for its origins, and did just that.

Firstly, I put the image back into Google to see if I could find its original source, and of the 190+ results shown, it had been used numerous times for similar stories and quite a few were by charities, who like us have limited or zero funds so have to use stock free imagery. Similar images are clearly attributed to Alamy, but never this one (see attached images named 1 to 19 Google Image Source to illustrate these findings).

Now Google is good at what it does, but I know it isn’t failproof, so as a final check, I usually put 'said image' through a Metadata check, (see image Metadata on image used) and the results showed no correlation to Alamy or any other stock library. It did show that a ‘basic’ photo editor had been used, something that an amateur photographer may use to re-touch their imagery, and not something that a professional photographer would use.

This Metadata system I use does indeed work as can be clearly seen when I put through one of my recent purchases from Alamy to prove it works (see image Metadata on Alamy image).

If this information had indeed appeared when I both searched on Google and then looked at the Metadata, I would have been in a position to decide whether to purchase the image (or not) given it is £40 to buy. At this point I will re-iterate that both the High Sheriff’s role and my role are both voluntary, and that the news story we were trying to promote was for charity, so in reality I wouldn’t have purchased the image as I would have preferred to donate the £40 to the fundraising and started the image search again.

Mandy has already offered to pay the £40 licence fee to buy the image, which was offered as a goodwill gesture and not as an admission of liability, and this offer still stands as a goodwill gesture. We replaced the image on the day we received the email and do not want the image now, so the £40 would be purely as compensation.

I must also state that the time it has taken thus far to reply to these emails is racking up, and if this matter is not resolved both myself and Mandy will be forced to issue a counter invoice to Alamy for the time taken, and have decided that we will donate our fees for this time to the fundraising appeal.

I assume that this finally closes the matter.

Kind regards
Sam

Welcome to the forum and thanks for your input Sam, I hope it works out OK for you. PM have not been noted for their charity in the past!
I have to say that your search for the owner of the image you linked to was not very thorough. Using tineye.com the fact that this image was supplied by Alamy came at the top of the list of results. What's more the photographer's name is clearly available: bailey-cooper photography If you take a look at their website, I'm sure you will agree it might be a mistake to categorise them as amateur photographers. The golden rule is to assume that all images require permission or a licence unless you are entirely satisfied to the contrary, for instance because the photographer has released their work under a Creative Commons licence. Even amateurs are entitled to have the copyright in their work respected.

Thanks for coming back to me Andy...

This is the first time I've heard of TinEye and it's clearly more foolproof than Google itself. Thank you for sharing the details.

The reference I made to 'amateur photographer' was to the metadata results against the image I used, which states a windows editor package has been used and not photoshop or similar. After being contacted, I obviously did look on Alamy and have already had a good browse at the work by Bailey Cooper - they clearly are very professional and have some fabulous imagery.

Can I ask (and I appreciate that copyright on an image is for 70+ years) but that the image I used was from a blog post published in 2016, yet the results findings in TinEye regarding Alamy state first found Aug, 13th 2021 - does this imply that the image was only uploaded to Alamy in 2021 and does this make a difference?

Hi Sammy,

I think that the date that Tineye first found the image on Alamy means just that, but that doesn't necessarily mean that is when Alamy first started licensing the image. The image itself has obviously been in existence much longer. Tineye shows it came up on the RoughGuides website in 2016, (and even earlier in 2014 it came up on www.seacroftwheelers.co.uk although it's no longer there now) so I assume that it was licensed from somewhere at that time. I can't see RoughGuides using an image without a licence. Maybe they got it direct from Bailey Cooper, or maybe Bailey Cooper were contracted to another stock agency in 2016. Either way I don't think it helps you particularly even if it turns out that Alamy were not responsible for licensing this image in 2016, as it appears that the image was on your site after 2021 when Alamy clearly were responsible for licensing it.

HI, ive been contacted by Alamy over 3 images, on a website that I bought.

They contacted me about an image. I offered to settle the first one for £160 just to do away with the headache, which they accepted.

A week later they contacted me about another 2 and asked for £400 each. Again, just to bring matters to a close, I offered £160 each again.

However, they have rejected this offer for the 2 images, even though they accepted it for the 1st image.

So, where do you think I should go from here? It's all very confusing!

Any guidance is greatly appreciated.

Hi booster,

Just so I am clear about this, have you been contacted by Alamy directly, or by Permission Machine on their behalf? I can't explain why they don't want to accept your second offer to settle but I imagine they feel that if they hold out for the full amount you may back down and pay in full just because as you say, you want the problem to go away.

I can't tell you how to proceed from here, that has to be your decision, but I think you might want to press them on why it was that they felt the £160 settlemnet was acceptable initially but not for the later two images. Clearly they must have accepted the £160 figure as being a fair value for the claim, and that if the matter of the other two images were to go to court, the claimant would need to explain to the judge why this figure didn't also represent a fair settlement for the later images also I assume there is no substantial difference between the three images.

Thanks Andy

Hi I have also today had a email from Alamy fair licensing saying I have a copyright infringement and owe £440
I paniked and replied to them explaining the below.
The image is actually a picture that was taken without me knowing and it is of me stood in my own shops doorway just looking out up the road. I had no idea the picture had been taken and it appeared on The Guardians website on a article about the area where my shop is based. I got tagged in the article on social media a few months ago and that was the first I knew of the image, and so this month I started to build my website and thought ill add that picture as it had been posted online and I was in the image but I didnt think that would not be allowed. Stupid not to think it would be copyrighted I now realise.
I have taken the picture off my website straight away.
But now from reding the forum wondered do you think I reply again with a counter offer as shown in previous posts? As my initial reply was somewhat a terrified babble, like this post !

Hi abs,

Welcome to the forum. Yes, as you now realise, being the subject of a photograph gives you no special rights as far as copyright is concerned. But your right to settle this matter in a fair and reasonable way is the same as any other unfortunate person in your position, and yes you should make a counter offer based on the current fee charged by Alamy, and not the £440 they are looking for. I would like to think Alamy might take into assount the special circumstances here. but I doubt it somehow. Good luck.

Hi all, another victim here!

I run a small B2B news/advice website in a niche sector. Over four years ago we accepted a case study to include on our site from a former advertiser that had some images included. The images were taken from their client's website/social media and I'm told permission had been given. However, one of the images turns out to be in Alamy's library and we've been hit with the usual demand for payment - £439.95!

I contacted the advertiser who sent us the images and I do actually have the original word document that they sent us with the images embedded, but as it was so long ago they don't have an email trail back to their client that the case study was focussed on. Their client does actually have the very same image still on their Facebook page as a part of a post from 2018, but it's not on their website.

I'm considering emailing the photographer to try and get to the truth about whether permission had been granted and to ask if he would consider helping us out (if he even can!).

EDIT: I just searched the image using Tineye and it was first seen on Alamy's site in 2021 - which is two years AFTER we put it on our website. Looks like it wasn't part of Alamy's offerings when we used it. Does this change things?

Thanks!

Hi stevier,

Welcome to the forum. Your last point is interesting. If the specific image was not available through Alamy until after you (or the advertiser) had already obtained a copy of the image, clearly it must have come from somewhere else and that perhaps strengthens the argument that it could have been obtained legally with a licence from the photographer. More to the point it, undermines Alamy's standing to make this claim since that they were not a licensee at the time, and therefore cannot claim retroactively for an alleged infringement. Of course it does depend on whether in fact the image was not available on their site before 2021. Obviously the Tineye search is not conclusive and it is possible the image was on the Alamy site under a different name or that Tineye is relying on unaccuarate metadata. However Alamy would now need to provide documentary proof that they were authorised to licence this image back in 2018, before they go any further with their claim. I don't think the Internet Archive (the Wayback Machine) is likely to have indexed the whole of Alamy's website, but it might be worth trying a search just in case.

On the broader issue, if you do end up having to pay Alamy anything, you would then have a valid claim against the advertiser who provided the image to you in the first place (and they, in turn, against their client), should you wish to pursue the matter. I'm sure you will have already thought of this, but it would be sensible to check the provenance of all the other images that the advertiser supplied.

Hi Andy,

Thanks for the swift response. Looks like Tineye's date is not a reliable indication of upload date sadly, so I have no case on that front.

I did manage to get hold of the case study subject company and they said they had been given permission to use the photo by the photographer - although he asked that he be credited if they shared it anywhere outside of their website/social. Evidently this key information was missed in their communication when our advertiser supplied the image to us.

I've emailed the photographer in the hope that he may be sympathetic to us in this instance and let Alamy know that the image was allowed to be used - but not heard back yet.

Not quite sure what to write in response to VRG at this stage though. Obviously don't want to pay what they're asking!