Copyright infringement via Permission Machine, acting on behalf of Alamy

[ManxMan]

Hi Andy,

Many thanks your your swift reply.
I have started down the path as many on here have, i.e. gone back and said their settlement figure is unreasonable and asked for a breakdown.
Knowing in advance their standard reply I will get from them, it has certainly put my mind at rest (to a certain degree).
Like so many here, when you make a genuine mistake, you don't mind paying a small penalty fee... but when they are properly taking the pee, it's not acceptable. I will certainly not be rolling over easy!
I will update here as I go through the process / their flow chart!

Many thanks again!
ManxMan

[thetheyuji]

Hi all,
This is a great thread.
About a month back I got the dreaded email from fairlicensing at Alamy, asking for £440 for an image I used as a placeholder prior to a site launch.
I immediately took the image down and informed them that the site had no traffic and no profit was made. I did my research using this forum and others and decided a counter offer of £225 was a reasonable amount to not have to deal with them any more.

I didnt hear back for 3 weeks now they have responded asking for £400 saying that they have removed the admin fee as a gesture of good will.

I just read this discussion with a lawyer and now I am inclined to not even respond. https://www.justanswer.co.uk/law/o1drb- ... alamy.html
Torn between replying and quoting some of the lawyers points back to them telling them I will not budge from my fair offer, or just simply not reply and ignore all future threatening emails.
I promise to keep updating on this to help others!

[AndyJ]

Hi thetheyuji and welcome to the forum.

You seem to be on the right track for how to make a counter-offer to resolve this dispute.

Just a word of warning about the response you saw from 'Joshua' on Justanswer.co.uk. He does not appear to be a specialist in intellectual property law or he would know that IP claims are not handled by the County Courts, and instead have to go through the High Court's specialist tribunal know as the Intellectual Property Enterprise Court (IPEC). However the rest of his response is accurate and worth following.

[ManxMan]

Hi Andy,

Update on where I am with VRG.
Received the standard request asking for £439.95. Went back and asked for a breakdown of their costs as thought it was exceptionally high and unreasonable.
They emailed back with again a standard reply and not really outlining any type of breakdown. I went back and said they hadn't addressed my question and couldn't accept their settlement figure until I saw a proper breakdown. Below is their response, I would be interested in your thoughts to the breakdown etc. Can't understand why they have two different hourly rates...!!?? Am I missing something?

Kind Regards
ManxMan

=====================================================================

Dear xxxxxxxx Limited,

Thank you for your email.

We have provided you with the factors which we base our settlement calculation on in our previous correspondence. 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 previously outlined.

Please see our legal guidelines attached which explain the factors included within the settlement calculation between or lawyers and clients.

Kind regards,

Hannah

Hannah Lucy
Legal Department
Visual Rights Group, Ltd


ATTACHMENT COPY BELOW

Visual Rights Group Legal role:
Permission Machine represents several rightholders and assists them in managing their copyright.
More images are being used without a valid license and therefore more infringements of copyright are occurring. This is why authors often employ partners to assist them in pursing their rights to their copyright.
VRG has the necessary authorisation to claim damages for our clients in settlement of infringements and to bring legal action to the said infringement.

ASSESSMENT OF DAMAGES
- Damage suffered in accordance with the Enforcement Directive 2004/48/EC and the Copyright, Design and Patents Act 1988, namely Section 97, part 2.
1. Because no permission was requested by second party for the use of the photo, the first party has suffered damages.
The concrete damages should be estimated as described in the Enforcement Directive. In accordance with the Enforcement Directive, three major items can be distinguished that include the damages; at least the lost license fee and the moral damages (Article 13), the costs of detection, investigation and recovery (Recital 26) and court costs (Article 14).

Article 13 provides:

1. Member States shall ensure that, at the request of the injured party, the competent judicial authorities order the infringer who knew, or ought reasonably to have known, that he/she was committing an infringement to pay the rightholder adequate compensation to make good the damage caused to him by the infringement.
The judicial authorities that determine the damages:
(a) Take into account all appropriate aspects, such as the negative economic consequences, including loss of profit, suffered by the infringing party, the unlawful profit enjoyed by the infringer and, in appropriate cases, elements other than economic factors, including the moral damage suffered by the rightholder as a result of the violation,
or
(b) As an alternative to subparagraph (a), may in appropriate cases, fix the damages as a flat-rate amount on the basis of elements such as at least the amount of royalties or fees which would have been due if the infringer had requested permission to use the intellectual property right in question.
By moral damage can be understood, among other things, the breach of the author's exclusive right to determine where and how the photograph is used, paternity rights, the fact that images are freely used and distributed on the Internet damages the exclusivity of the clients photographs. This makes it more difficult for them to sell photographs, as its customers are less willing to pay if they cannot guarantee the exclusivity of its materials.

Economic factors may include:
-The absence of permission
-The absence of the name
-The mutilation of the photo
-Loss of exclusivity (other clients will pay less for images that are not exclusive)
The right to grant or not to grant permission to use a work is at the heart of copyright law. When this is misunderstood, an author is misunderstood in the essence of his or her rights. The distribution of photographs is an important part of our clients activity. It goes without saying that, in order to be able to exploit its photographs, they must be able to determine for themselves who uses its photographs and when, and that it will be harmed if third parties deprive it of this right of disposal by using photographs without permission.
If the photo is used without mentioning the author's name, the author misses out on name recognition, many possible assignments.
The use of the disputed images in a form other than the original, by the use of cropping or mirroring, without prior permission, is also an infringement on the right of first respondent to agree or not to agree to any deformation, mutilation or other alteration of the work, or any other violation of the work, which may harm his honor or reputation.

Detection and investigation costs and legal fees

1.The right to reimbursement of the costs of detection and investigation is explicitly laid down in Recital 26 of the Enforcement Directive on the enforcement of intellectual property rights and in Article 14 of the Enforcement Directive.
Indeed, Recital 26 states: "In order to compensate the damage resulting from an infringement by an infringer who has carried out an activity when he knew or ought reasonably to have known that it would give rise to such an infringement, the amount of compensation awarded to the right holder must take into account all the circumstances of the case, such as the loss of income suffered by the right holder or the profit unlawfully made by the infringer and, where appropriate, the moral prejudice caused to the right holder.” Alternatively, for example if the actual damage is difficult to determine, the amount of compensation may be derived from elements such as the amount of royalties or fees that would have been due if the infringer had requested permission to use the intellectual property right. The intention is not to introduce an obligation to provide for non-compensatory damages, but to allow for compensation based on an objective basis, taking into account the costs incurred by the rightholder, for example for detection and investigation.
Article 14 states that "The Member States shall ensure that, as a general rule, reasonable and appropriate legal costs and other costs incurred by the successful party shall be assumed by the losing party, unless reasons of equity prevent this".
The costs of detection and investigation shall be paid by the infringer. The detection and establishment of the infringement has required efforts and costs.

1 .The photo was uploaded in specialized software
Costs software detection - £4.50
Costs servers - £4.50
Costs IT team - £4.50

2. The search was started under the control of an experienced computer scientist
Costs software detection - £4.50
Costs servers - £4.50
Costs IT team -£4.50

3. The website was visited and the use of photographs reported by the system was visually confirmed. A visual check of the photo was done to validate the agreement. It is checked in the internal databases to ensure that the infringement has not been detected before. 15mins

4. A copyright specialist visited the website to verify the infringement. The photo on the website was analysed, compared with the source material, and it was checked whether there was actually an infringement (e.g. not correct use under a copyright exception such as the right to quote edm.). 15mins

5. The contact details of the website were searched, a print screen was made and saved. 15mins

6. A check from copyright owner and/or VRG was made in databases of sales whether a license was sold. 30mins

7. Screenshot taken of the infringement, saved, archived and processed into a document establishing the infringement with the protected photograph. 30mins

£112.00 per hour / 1hr:45mins:00 / £156.00

8. Setting up a file (creating relationships in the software, entering amounts, linking documents). 25mins
Costs start up file + software for file management and communication. £45.00

9. Follow-up and quality control: file control by experienced manager. 1hr

10. Preparation of offer letter, printing, packing, franking, shipping (by mail and by post). 30mins

11. Cost letter, stamp, printing. £4.50

12. Follow-up file: read the reaction, draw up a letter of reply on copyright conditions, hand over further documents. 20mins

13. Follow-up dossier: drafting reminder letter. 20mins

14. Follow-up dossier: read the reaction, draw up a reply letter, provide additional information, proposal for a possible discount. 20mins

£100.00 per hour / 3hrs £300.00

[Another victim]

"7. Screenshot taken of the infringement, saved, archived and processed into a document establishing the infringement with the protected photograph. 30mins

£112.00 per hour / 1hr:45mins:00 / £156.00"

An hour and three quarters to take a screenshot and save it as a jpg? What are they using, a Spectrum 64? Honestly, it's just piffle, followed by more piffle, drizzled with piffle, with a side of piffle. If you look back through the 14 pages of this sorry saga you can see that most of what she's written to you is just copied and pasted from emails sent to others, and just put ALL of it in just in case you might be intimidated enough to pay. It's a ransom, blackmail, extortion. That it's legal is a travesty. Tell 'Hannah' that you're always willing to settle at the offer you made of £50 odd, but failing that, the only thing you're interested in hearing from them is a filed case.

[hollidb95]

Hi again all,
I thought Alamy had gone quiet a it's now 16 months since my last message back to them and then out of nowhere I've received the following today:

==============================
Good Morning Barry,

Thank you for your email.

I have recently joined the team to resolve unsettled cases, apologies for the delay in responding to you.

We cannot accept your offer of £71.99.

Your contention that you should simply have to pay a fee equivalent to the fee that you possibly could have paid for a valid licence before committing copyright infringement is misguided.

Copyright infringement is unlawful, and before you committed copyright infringement you had the option of obtaining a valid licence. Had you exercised that option, you could have obtained such a licence via Alamy. However, because you did not obtain a licence your usage is unauthorised and per our General Terms and conditions you agree to indemnify Alamy for its losses, costs and expenses for your breach of these Terms and Conditions.

We have calculated the price based on our published Licence agreement terms and conditions charging at least 5 times the applicable rate, as well as taking into account the additional funds needed as compensation for loss of earnings for the photographer, the price we pay to use the services of a web-crawling agency and an admin fee which covers our cost of creating and managing the case.

To resolve this case, I have removed the 10% Admin Fee and extended the 15% Early Settlement Discount until the 28/02/2025.

Please log in to

​https://fairlicensing.alamy.com/login?case_id=PI0CVU using your case ID PI0CVU and your PIN 275410 to settle this claim.

Many thanks,

Michelle
============================

My email to them from May 2023:

============================
REPLYING WITHOUT PREJUDICE

Dear Michaela,

Many thanks for your reply.

I requested a full breakdown of the costs and rationale around the fee which I note has not been provided.

As I'm sure you will be aware should this matter proceed to small claims the matter would be judged based on the lost revenue of the license fee of £31.99, based on the principle of placing the you into a position as tho any infringement hadn't taken place, plus a reasonable administration amount. You state in your limited breakdown your administration fee is £40. No damages for flagrancy or moral infringement could be claimed as I have engaged with you, removed the image as soon as I was made aware of the issue and made a reasonable offer to resolve the matter.

I maintain that your speculative claim of £440 is unreasonably extortionate.

I therefore offer £31.99 for the license fee plus £40 as your stated admin fee, making a total of £71.99 in full and final settlement of the matter. This represents a 125% increase in the potential loss of earnings, which I'm sure you'll agree is reasonable; especially given I have removed the image and it's use was innocent and not a flagrant or malicious copyright infringement.

Many thanks,
Barry
===============================

Any ideas on a repose?

16 months is laughable for a response to my repeated offer. And to them only give 14 days on their 'discount', how on earth would that stand up as fair and equal treatment?

In all seriousness, i'm minded to point out the ludicrous time line between my last email, remind them I have acted in good faith to reach a settlement without admitting any wrongdoing, and that they are not acting in a fair and equitable way with me and so I'll stick to my original counter-over which is clear and fair and so shows my continued good faith.

FYI the current request from them is now £340

Cheers for the help so far, and any comments greatly appreciated!

Barry

[Another victim]

lol at 'I just joined the team'. A more honest person (notwithstanding we're talking about Alamy) would have said 'we've plucked all the low-hanging fruit, and now we're having another go at those who resisted'. No, 16 months is beyond ludicrous, but no more so than any other part of the speculative claim. Unfortunately, you can't tell them to naff off because they'd claim you were refusing to engage with them, so just stick with what you've already said. They ain't gonna accept it, but that's their lookout. Remain icily polite, and let them carry on their pointless claim. By all means point out that they know their claim value won't hold up in court, that YOU know their claim value won't hold up in court, and now THEY know that you know their claim value won't hold up in court.
You could rub it in a bit by saying that now YOU know that they know that you know that they know their claim value won't hold up, but you get the point

[hollidb95]

I know right?

Just thinking, they've dropped the admin fee from their claim, I'm tempted to drop it from my counter offer and just offer the license fee of £31.99 and point out that a 16 month delay in reply clearly shows there is no damage to them and therefore any possible case at court would be judge purely on being put in the position as if the infringement had not occurred, I.e. £31.99 for a license.

Thoughts?

[Another victim]

Well you could, but what would be the point? They're not going to accept it at either price, they wouldn't accept it at double that price. That's not how their blackmail works - they either frighten you into offering several hundred, or they carry on popping up light bad dreams every now and then to try and disturb you. You gotta realise that that way you're feeling right now? That's not an accident. They are aiming for exactly that feeling, because that's precisely the feeling that every other sucker who paid up their ransom had

[hollidb95]

Oh don't worry I have no intention of paying anything above 71.99 as I've offered.

I'm just tempted to drop it to 31.99 now they've got the balls to come back at me after 16 months of silence...

B