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About S1t2

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  • Joined Alamy
    29 Mar 2003
  1. Anyone who runs a server knows that internet traffic from Russia and China is nearly universally malign. And there's a lot of it. Even if your server is well protected against hacking, these constant automated attempts take up resources. It's often simpler to outright ban ip addresses from these countries. It would still be possible to 'whitelist' ip addresses of any publishers or distributors in Russia that you have a relationship with. Though anyone in Russia who has a legitimate interest in doing business in the Western hemisphere will use a VPN anyway. That's my guess as to why Alamy cannot be reached in Russia. It's hard enough to reach Alamy from Abingdon if you use a secure browser with protection against tracking you are likely to get endless captcha puzzles that never resolve.
  2. When digital imaging first became a practical proposition I spent a while attempting to scan b&w negatives including with state of the art scanners. My conclusion was that it wasn't really possible. The best way was to make a softish photographic print and scan that on a flat bed scanner. Film scanners do reversal film well but not silver based negatives.
  3. I'd suggest you e-mail Alamy and ask them to pass on your contact details and ask him to contact you. Or if he can be traced through a search engine then contact him directly. As to the question of permission. He can sell the images through Alamy to illustrate you as the garden designer or the particular show where the image was taken. The pictures cannot be used to promote the work of any other garden designer or any product, or at least you might reasonably complain if that happened. Other uses which would be unreasonable would be if it were used in a defamatory context. In general where a person poses for a photograph a condition of confidence arises between the photographer and subject. It does not give the photographer a right to publish the image, in fact that could potentially be a breach of confidence. However where someone poses at a press conference or to someone who is, or appears to be, a press photographer they are posing in the expectation of the picture being published and the ensuing publicity. As long as that publicity relates to the event and the subject himself then that is reasonable. But the mere fact that someone allows or co-operates with having their picture taken does not give rise to a right to publish.
  4. Well, I don't want to get into a protracted debate on an internet forum, so this is my last post on this or probably any subject. If you are looking for a case to help a claim for infringement the recent judgment in Absolute Lofts South West London Ltd v Artisan Home Improvements Ltd & Anor [2015] EWHC 2608 (IPEC) will be a lot more useful than the Webb case. Because it is a High Court judgment it is an authority for additional damages under s.97(2) CDPA 1988 and under EU Law. i.e. Article 13 of Directive 2004/48/EC. In this case, which you can read here http://www.bailii.org/ew/cases/EWHC/IPEC/2015/2608.html. The claimant was awarded £300 in normal damages but £6,000 in additional damages assessed coincidently to be the same under s.97(2) or under Article 13. Now before you rush to the conclusion that an unlicenced reproduction on a website is worth 20 times any value that you care to specify, you first need to see how the value of the infringement was arrived at. That is the 'User Principle': what a willing buyer would pay a willing seller. In this case which revolved on 21 pictures of loft conversions used on a builder's website that was established to be slightly less than £15 each, actually £300 for the lot. This was the cost the defendant had incurred sourcing replacement images from a 'microstock' agency. However I doubt whether he could not have sourced similar pictures for a similar price from Alamy. In any case it is up to the claimant to prove their loss, and where your pictures are for sale on Alamy the value is likely to be the price at which Alamy would sell them for the same use. The claimant here was seeking around £9,000 and the defendant was offering up to £1,000 based on commissioning photography but the judge dismissed both estimates and assessed £300 for stock shots. The judge made a review of the principles of European Law and how they might interact with domestic law. It seems to me that he then produced the figure of £6,000 more or less out of a hat. Though he refers to a basis in the profits made by the defendant that he found were attributable to the use of the claimants photographs. And he thought that £300 compensatory damages were insufficiently dissuasive to satisfy the Enforcement Directive. The judge then found that under s.97(2) CDPA 1988 there was the necessary element of flagrancy and that the defendant had benefited unfairly from the use of the pictures. Under either route he assessed £6,000 as the amount. Curiously there does not seem to have been an award of costs, unless that has been omitted from the report. Perhaps there is something that we don't know about here. I would imagine that either sides costs would at least equal the damages. And clearly the claimant was dissatisfied with the result because he applied to the judge to reconsider the award of £300 on the basis of some clauses in the microstock contract which it was claimed had not been disclosed to the court and which might have affected the judge's assessment. But in a seperate judgment that argument fell on stoney ground. There is a link on the BAILII report to the second judgment. Reading between the lines, I strongly suspect that the claimant was out of pocket despite his success. I also suspect that the judge might have had the ultimate consequences for the claimant in mind when assessing the additional damages. What is more the defendant shot himself in the foot by being dishonest to the court. The judge found that he was an 'unreliable witness' which is fairly completely damning. And the judge clearly had no sympathy for him. For what it's worth, from the little I was able to glean about the Webb case, I would say that that award was made because of the sheer amount of time, persistence, and effort Mr Webb had to put into pursuing a devious and thoroughly dishonest defendant. And I wouldn't underestimate the tendency of judges to make awards that seem appropriate to them in the actual circumstances of the case as opposed to purely on the basis of principle. But in neither case were the additional damages assessed on the basis of a bonus uplift per picture use. Additional damages awarded by a court are one thing, applying a tariff of "uplifts" to "retrospective licences" are another. That is why I referred earlier to "speculative invoicing". I can think of any number of scenarios where making inflated demands might have decidedly negative consequences. Encouraging such practises is not necessarily helpful, particularly where many of the photographers who might read such advice are essentially hobbyists who may be posting their pictures all over the web in various uncontrollable ways, and the infingers are likely to be even more unsophisticated and are borrowing pictures for a blog or social media post with no thought to such matters as copyright. Whereas a court might make an award of 'additional damages' under s.97(2), and whereas EU law provides you with a right to a court that is required to assess damages "appropriate to the actual prejudice" suffered, it is not clear to me that there is a "right" as such to additional damages without a judicial assessment. And if an infringer admits to an error and agrees to compensate the rights holder the necessary degree of flagrancy may not arise anyway.
  5. There is no point in referencing a case if you omit the citation. The case of Mr Webb and the former directors of a company called VA Events is an unreported case. It was heard under the "small claims" procedure. So while it is unusual and interesting, it is not authority for any proposition at all. What seems to have happened is that the district judge made an award under s.97(2) of the CDPA 1988. 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 (any benefit accruing to the defendant by reason of the infringement, award such additional damages as the justice of the case may require. This seems to have been awarded on the basis that the defendants went to considerable effort to remove the claimant's copyright notices and they subsequent made dishonest representations to the court. They claimed that their use of the image was "inadvertent", when clearly it was deliberate and calculated. What is more they persisted in a dishonest defence all the way to a hearing. The court was therefore entitled to make an award of "additional damages" in these circumstances. And the court may have had in mind any of a number of particular factors in that case when making that award. However, there is absolutely no right for any person who alleges his copyright has been infringed to make any demand for any money that he cannot prove that he has lost or foregone because of the infringement. Under s.97(2) Only a court may award such additional damages if the circumstances warrant. Issuing invoices for speculative amounts could get you into real trouble. It might be that your picture has been used without your permission, but that would not excuse making demands for money with threats. That might amount to attempted extortion or blackmail notwithstanding that someone may have infringed your copyright. Copyright law is not straightforward. Just to illustrate this and because I've quoted subsection (2) of section 97 of the CDPA 1988, here is subsection (1) Where in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy. What that says is, that if the infinger can prove that he did not know, and prove that there was no reason why he might have known, that he was infringing copyright then he is not liable to pay the copyright owner anything. Though the claimant might be entitled to other remedies, such as an injunction. To sum up and answer again the OP, it is not possible to lawfully claim from an infringer any amount of money greater than that which you can prove you would have charged had a licence been negotiated before the use occurred. I would doubt that Alamy or their agents make such demands when chasing alleged infringements.
  6. A claim for infringement of copyright is not a "retrospective licence". It is a claim for damages that hopefully will be settled by the defendant before litigation. Damages may only be claimed to put the claimant back in the position he would have been in had the infringement not taken place. i.e. In the case of a published infringement, by payment of the fee that would have been charged had the use had been licenced and possibly the claimants's costs. A claimant would also be entitled to an injunction to restrain further publication. Of course any subsequent further publication might be negotiated between the claimant and the defendant. But that would be a new licence. There is no right to receive extra payment as a punishment. Any infringer would have to be really stupid to succumb to such demands, and if the claimant ever did issue proceedings he will not have assisted his case by making demands that might be viewed as unwarranted. There is in theory the possibility of claiming "punitive damages", but these could only arise in particular and extreme circumstances. Don't get me wrong. I'm no friend of copyright abusers. But in the real world you've got to expect a certain amount of it whether through innocent mistake or opportunism.
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