Alamy chasing infringements

[KWheal]

Has anyone received payment where alamy has chased up an infringement. If so are you getting higher rates (e.g penalised for copyright theft) or are alamy just issuing retrospective licences? Alamy are at the moment chasing up a couple for me. In the past I have done quite well in chasing up people and penalising them for copyright theft and am just wondering whether ,although time and effort are being saved, we are losing cash by alamy chasing up (as well as losing the 50% alamy cut). I hope higher fees are being demanded otherwise copyright thieves are not being punished and will just continue

Kevin

[Pearl]

I have had a couple paid so far. The most I have received is $34.78.  Doesn't seem like there is much of a penalty being added for the infringement unless Alamy and PicScout are taking a huge whack.

 

Pearl

[Doc]

How do you know when it is for an infringement that you are being paid?

 

Kumar

[Michael Ventura]

How do you know when it is for an infringement that you are being paid?

 

Kumar

 

In the Balance of Account, the ledger will have a line item stating "Infringement" and then the amount.

 

I have had a few paid and no big money....I think the most I have gotten was $63.  Most were down around $15...so no big punitive collections.

 

Alamy just emailed me notifying me of 3 more infringements.  

[Kathy deWitt]

How do you know when it is for an infringement that you are being paid?

 

Kumar

Kumar:

 

It appears on the Balance page  as  "other income"  stating it is an infringement use and gives you the code.  It doesn't appear in Sales.

 

I have had a few, for not a lot.  Another 1/2 dozen this a.m.

 

Kathy

[Pearl]

Still no news about the one they are chasing for me. Guess they gave up 

 

Pearl, sure it wasn't $347.80 instead of $34.78   

 

Cheers,

Philippe

 

Yes I am sure unfortunately Philippe

 

Pearl

[Callie]

I had three emails this week regarding infringements, plus one some months back I never heard anything about. How long does it generally take for a result with these?

[CandyAppleRed Images]

I recently queried one I notified them of in August last year and the response I got was "we can assure you that our Infringement team is on this case. As the process is handled by a third party agency, it might take a bit longer. We’ll be in touch as soon as it’s completed. "

 

They are also chasing another I raised recently and one they asked me if I wanted them to chase, so I'll just sit tight and wait for the money to roll in!​

[JohnB]

I'm assuming the sale that appeared in my account today  relates to an infringement Alamy informed me of a few weeks back (It's the same picture anyway)

[Pearl]

I'm assuming the sale that appeared in my account today  relates to an infringement Alamy informed me of a few weeks back (It's the same picture anyway). $41.93 for a web use. 

 

As Kathy said above, it doesn't appear as a sale.  It will be listed as an infringement in Balance of Account

[JohnB]

 

I'm assuming the sale that appeared in my account today  relates to an infringement Alamy informed me of a few weeks back (It's the same picture anyway). . 

 

As Kathy said above, it doesn't appear as a sale.  It will be listed as an infringement in Balance of Account

 

OK that's good.

[mickfly]

I have one outstanding with Alamy them which I informed them of months ago, I also closed one for £250 myself this week and had a result from Pixsys this week valued at $107 which is after their 50% commission. 
There are also a few pending via the same company (they keep people informed).

I also have another case which I'm handling myself for which I am asking a four figure total price for the use of four images in a magazine (I am including uplifts for infringement and flagrancy) thanks to advice from a fellow forum member.

Infringers should be charged more than the license price they could have originaly had, without a doubt!
 

[Pearl]

Infringers should be charged more than the license price they could have original had, without a doubt!

 

 

Couldn't agree more otherwise they will just keep on trying to get away with it.

 

Pearl

[John Mitchell]

I've yet to see any of these. Will someone please infringe me ASAP.

[spacecadet]

Who are Pixsys? I'm not getting anything related to infringement.

[mickfly]

Who are Pixsys? I'm not getting anything related to infringement.

Sorry, I added an s.

 

Pixsy.com

[Thyrsis]

I had three emails this week regarding infringements, plus one some months back I never heard anything about. How long does it generally take for a result with these?

Seven months on and no sign of a result yet.........

[Doc]

Thanks Kathy and Michael - I think they have been chasing about 10 for me so far but no results as yet in the balance of account

 

Kumar

[Cryptoprocta]

I recently queried one I notified them of in August last year and the response I got was "we can assure you that our Infringement team is on this case. As the process is handled by a third party agency, it might take a bit longer. We’ll be in touch as soon as it’s completed. "

That's depressing.

I've notified Alamy of a large number of infringements by one company (well known to the community) and got the same message, not to contact them again and assuring me that their infringement team is on the case.

I strongly suspect this company chooses not to recognise the difference between RM and RF, and is a recividist, bearing in mind that I sometimes see scores of uses of one RM file by them.

I really wish Alamy would deal with infringements by its 'deep discount' buyers as urgent - it might encourage them to be more honest in their reporting (though I fear that might push them towards RF files from elsewhere).

[mickfly]

Unfortunately, the business model of stock images is trapped in the try and buy system.

Ideally the image user would pay to download and the library would agree not to clear the payment for 30 days, with the buyer only having to notify if they DON'T need it or use it within that period to stop payment.

That would also make it much easier to follow infringements!

I was recently asked by a publisher for an image which I would have licenced via my own website, but, as I was on holiday I pointed the buyer to my port on Alamy to save me the trouble of writing a licence.
A week later I saw the image used in the magazine, contacted MS and asked if it had been downloaded (it had), I was then advised to keep an eye on my account and if there was no notification in three months to get back to them, with proof, tearsheet etc.

I hope the gross sale value is more than the cost of the magazine, which I had to buy for proof!
 

[S1t2]

Has anyone received payment where alamy has chased up an infringement. If so are you getting higher rates (e.g penalised for copyright theft) or are alamy just issuing retrospective licences?

Kevin

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.

[mickfly]

 

Has anyone received payment where alamy has chased up an infringement. If so are you getting higher rates (e.g penalised for copyright theft) or are alamy just issuing retrospective licences?

Kevin

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.

 

 

I wrote my infringer a 'retroactive' licence.

[spacecadet]

 

Has anyone received payment where alamy has chased up an infringement. If so are you getting higher rates (e.g penalised for copyright theft) or are alamy just issuing retrospective licences?

Kevin

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.

 

In fact there is a good deal of scope for flagrancy uplifts- see Webb v. VA Events where the photographer was awarded his claim of 6x his usual fee where the defendants cloned out his watermarks.

My settlements regularly include a notional uplift. Of course, if he settles, the infringer retrospective licensee doesn't get to find out what the multiplier is.

[S1t2]

In fact there is a good deal of scope for flagrancy uplifts- see Webb v. VA Events where the photographer was awarded his claim of 6x his usual fee where the defendants cloned out his watermarks.

My settlements regularly include a notional uplift. Of course, if he settles, the infringer retrospective licensee doesn't get to find out what the multiplier is.

 

 

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.

[spacecadet]

Well neither of us being copyright lawyers we will have to agree to disagree, and as a non- lawyer you will forgive me for not quoting citations, especially when there isn't one. and not knowing that an unreported case is not authority- is that actually the case, by the way? Unless you are one, of course. In any case you've misinterpreted s97- an infringer can't claim he didn't know he was infringing, he can only claim that copyright didn't subsist, and you can't do that in respect a photograph taken in modern times, because, er, it's a photograph, and they are protected in the usual way.

 

I wasn't being legalistic about it but Webb v VA seems to me, and to the industry as it's been widely quoted, relevant to the notion of additional damages beyond the oft-quoted assertion that you can never get more than your licence fee. It's also encouraging as it was a small claims case suitable for a small business wanting to avoid the risk of costs.

 

I will repeat that I have applied notional uplifts to my offers of settlement and have had them paid. I will stick with my interpretation and will continue to offer my opinion based on it.