Advice needed - copyright infringement

[M.Chapman]

In March this year a crop from one of my Alamy images was published by a UK newspaper online, the sale was correctly reported and I received my commission from Alamy (thanks). The original image was both cropped and downsized to 460 x 276 pixels.

 

I have just discovered the same cropped image is now being used by a UK National House builder on their website to promote the local environment around one of their forthcoming housing developments. The crop used is identical to the crop in the newspaper usage (although the image has been further downsized to 290 x 174 pixels). This image is only available via Alamy who have confirmed that they have not supplied this image to the House-builder in question.

 

I'm therefore 99.9% certain the image has been copied from the Newspaper's website and I want to pursue them.

 

Is there a standard letter or form of words I should use? 

 

What sort of compensation should I seek?

 

It occurs to me that they may want to use the same image in a brochure for the development and would like access to a higher res version, so I could offer that too.

 

Mark

 

 

 

 

 

[Jools Elliott]

I need to know this too. I had a recent sale that has been copied into a blog.

 

My question, to add to Mark's, is what do we do if the infringement is an overseas blog? 

[Chrissie]

Mark, have a read of this http://www.epuk.org/Opinion/994/stolen-photographs-what-to-do I usually write a polite and formal letter and enclose a reasonable invoice for the use so far. I also mention that if they want to continue using the image I'm happy to licence the image properly and supply a higher res image if necessary.

[Jools Elliott]

And where do you go from there if they:

 

1) Don't take it down, and/ or

2) Don't pay?

 

Chrissie, you mention enclosing an invoice for "the use so far". How do you calculate this?

[Chrissie]

I look at the website/company, look at the size, look at the placement and add a bit for thievery. By keeping it reasonable and realistic I usually get payment on the first time of asking (£50 - £200 usually plus a proper licensing sometimes) I never pursue blogs.

And where do you go from there if they:

 

1) Don't take it down, and/ or

2) Don't pay?

 

Chrissie, you mention enclosing an invoice for "the use so far". How do you calculate this?

[Jools Elliott]

Why don't you pursue blogs? Surely it is still loss of income?

[Chrissie]

No, because they wouldn't have paid anyway. It's a bit of a cheek but life goes on : ) Others are entitled to feel differently!

Why don't you pursue blogs? Surely it is still loss of income?

[spacecadet]

The EPUK piece is very good. It cautions against sending a bill at first because that limits your claim. Firstly you want to know how the image has been used. You can make a without prejudice offer later depending on the response you get.

That response will probably tell you whether or not you might be able to sell a legitimate licence. If you can, then you might incorporate the use to date in that, but at a much higher rate- after all they stole the image.

Remember it is a commercial infringement and thereby potentially a criminal offence. They have used your image for their own profit for several months.

Keep us posted.

[M.Chapman]

Mark, have a read of this http://www.epuk.org/Opinion/994/stolen-photographs-what-to-do I usually write a polite and formal letter and enclose a reasonable invoice for the use so far. I also mention that if they want to continue using the image I'm happy to licence the image properly and supply a higher res image if necessary.

 

 

I would start with a mail like this:

 

Dear sir, madam,

 

Could you please tell me via which agency you bought the reproduction rights for my picture "description picture" which I found on your website "URL website page"?

No need to remove the picture, a printscreen has already been made (see attachment).

 

Kind regards,

Your name

 

Cheers,

Philippe

Thanks. I'm just about to draft a letter. Who would you address it to? The company's legal dept? the marketing dept?

[M.Chapman]

Update....

 

I sent the house builder a letter (edited version below). They removed my image within 2 days but haven't replied to my letter or  purchased a licence. They seem to be taking the the "let's see what happens if we ignore this" approach.

 

Any thoughts on the next step?

 

To: House Builder's Legal Department

 

September 30th 2013

__________________________________________________________________________

 

SUBJECT : Use of my copyrighted image on your website

 

Dear Sirs,

 

Without Prejudice Save as to Costs

 

It has come to my attention that you have used my image of <image caption> on your website to promote your new housing development at <location>

 

A thumbnail of my image currently appears at the foot of your webpage.

<Full URL>

 

This thumbnail can be clicked on to reveal a larger version of my image.

 

I have enclosed a screenshot from your website with this letter, together with a screenshot of my image on Alamy, for your reference.

 

Whilst it’s always nice to see my work “in print”, my sole agent (Alamy) has no record of having issued you with a licence to use this image. If you believe you have a licence, please can you provide me with the details?

 

If you do not have a licence, it appears that you have breached my copyright and I require you to provide me with information about where you sourced the image, the length of time that you have used the image, and any other usages (downloadable or printed brochures etc.) that you may have made of that image.

 

Unless you have (or purchase) a licence for use of this image I require you to remove all usages immediately, and I will require payment for use of the image to date.

 

You can purchase a licence for your use of this image to date (and for future use) from Alamy.com. The reference number for this image is <Alamy ref>. You may also wish to licence higher quality/resolution versions of this image and others of the locality that may be suitable for use in your brochures etc. for this development. A collection of my images of <location> can be found on Alamy.com using the following shortcut link;

<Tiny URL>

I look forward to your speedy response.

 

Yours sincerely,

 

<Signature>

 

PS. To help with your investigations, I suspect your marketing department or website designers may have copied my image from the <Newspaper name> website where it was correctly licenced and published. The reason I suspect this is that the crop on your website exactly matches that used on the <Newspaper name> website, see:- <Full URL:>

[spacecadet]

Offering the Alamy licence has limited your claim somewhat, although I see that I suggested you do it because you thought you might acquire a customer.

However they have ignored this so I think you can forget about that.

You need to check with Alamy to make sure they haven't done it in the last day or two, then send what that EPUK article calls the 'grumpy letter' in which you make a without prejudice offer I suggest using the NUJ rates for this

http://www.londonfreelance.org/feesguide/index.php?language=en&country=UK&section=Photography&subsect=Online+use+of+photos

assuming you can back it up with a comparable high-value sale of your own.

From that you might be looking at £400 or so with 100% uplift for flagrancy. If you go to court there are various other heads of damages you would add on, so they should have an incentive to settle, say £600?

And don't be so helpful in the 'grumpy letter'. No free legal advice.

They are bang to rights so probably won't go to court to try to pay less.

Let us know. Next step the Patents County Court.

[DavidC]

Alamy do not, and should not, issue licenses for retrospective/retroactive use of the image - think about it - they would only ever pay up or attempt to buy a license if they were caught stealing it.

 

They may buy a license but it can only be for future use, and it will be for peanuts meaning that you have valued your image at just a few dollars, others may say that this does not matter but believe me it does - it opens the can of worms for the legal weasels to argue and barter and up their fees - that is if you can persuade one to take you on. The Patents County Court is open to you - and the best of luck.

 

I've PM'd you a pro forma of what I e-mail to the company - when that fails I simply hand it over to a license compliance company who in my case have been very successful.

[M.Chapman]

Alamy do not, and should not, issue licenses for retrospective/retroactive use of the image - think about it - they would only ever pay up or attempt to buy a license if they were caught stealing it.

When it comes to newspapers don't Alamy do this all the time? They also do it for unreported usages where they have supplied the image to the customer.

 

Thanks for your PMs

[losdemas]

 

Alamy do not, and should not, issue licenses for retrospective/retroactive use of the image - think about it - they would only ever pay up or attempt to buy a license if they were caught stealing it.

When it comes to newspapers don't Alamy do this all the time? They also do it for unreported usages where they have supplied the image to the customer.

 

Thanks for your PMs

 

An (important, but) separate issue, really.  They already have a contract with the newspapers for usage.

[DavidC]

 

Alamy do not, and should not, issue licenses for retrospective/retroactive use of the image - think about it - they would only ever pay up or attempt to buy a license if they were caught stealing it.

When it comes to newspapers don't Alamy do this all the time? They also do it for unreported usages where they have supplied the image to the customer.

 

Thanks for your PMs

A number of newspapers have subscription accounts allowing them to acquire images from the approved pool as part of a 'scheme' - They also ALL operate a self-billing arrangement approved by HMRC by which they should automatically pay any sum owed without Alamy (or contracted contributor) sending an invoice - in fact they are forbidden to do so.

 

This has nothing whatsoever to do with someone contacting Alamy and asking to license an image historically - licenses are not backdated to enable an infringer to legalize his/her theft.  YOU can issue a retrospective/retroactive license if you so wish as part of a Settlement Release Agreement when you have agreed a fee.

 

Further Alamy may issue a license in the matter of an unreported usage where they have already supplied the image - but this is for a use which the client has 'forgotten' to pay - not where the image has been fraudulently obtained in the first place. If it is a fraudulent use taken perhaps from a newspaper website then Alamy regard it as a 'third party usage' and tell you to go after them yourself.