Alamy chasing infringements

[Alan Gallery]

Mark is perfectly right and as he is speaking from direct experience of the process that lends a significant authority to what he has stated.  There is a difference between a speculative invoice of the Getty ilk and a claim reasoned and properly made giving the infringer an opportunity to seek advice and make a counter offer.  As long as a claimant follows the procedure laid out in the guidance to the IPEC Small Claims Court there is no problem claiming for the normal fee for use plus uplift for various types of flagrancy from the outset and getting it as a judgement.  The Webb case is only exceptional in the level of uplift applied to each instance of infringement. Normally at least  100% of the base fee for unauthorised reproduction with the other grounds for flagerancy dependent on how well the case is made.    

[Armstrong]

 

[S1t2]

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.

[spacecadet]

The  photographer's case  appears not to have been that well made, probably because the photographs were taken by a builder. I think a professional photographer, with evidence of licence fees received, would be on firmer ground.

No-one is encouraging speculative invoicing (and only you have even mentioned it- I assume you refer to MediaCat et al) because that's not what an offer of settlement from the rights holder, based on an amount which can be justified, actually is. Infringers are settling because they or their advisers know about the small claims track in the PCC and the sorts of sums which are being awarded.

 

It would have been unusual for Artisan, as the winner, not to get his costs, but wouldn't it be unusual for them to be mentioned in judgements? Surely they only come back to court if there's legal disagreement about them, or the costs cap is engaged, but this wouldn't be the case in the High Court, would it?

[geofk]

I have an Alamy image with over 100 unauthorised uses. Alamy's client has been the sole licensee. Alamy uses Picscout and has notified me of about 6 or 7 unauthorised uses that they spotted. They have recovered on 4 uses and the amounts are around the $12 mark. Picscout's operational area is limited to the UK, France, USA and Canada - ie where the big money might come from. I have a use in Luxembourg that Picscout won't deal with. Picscout will only chase uses where a decent return is almost guaranteed and this does not include blogs, social media or things like Pinterest. Having said that, Picscout has acquired a fearsome reputation for chasing infringements that they take an interest in but as far as I know, they haven't even looked at a spreadsheet I sent (with completed forms) for some 60 or so infringements. 

As nearly all these unauthorised uses don't carry a credit, I generally double the Alamy's rate to compensate for the lack of a credit. If the use is more flagrant and / or veers towards advertising or advertorial, I will treble the book rate. Uses extending over a year also get higher rates. Biggest settlement I got for one use was $175.

[geofk]

The main problem I have is in calculating what to demand. The 2 or 3 times book rate works for editorial stuff but will definitely be inaccurate for advertising/advertorial. The one question I think we need to ask ourselves is " what would I say if the judge asks us to justify our charges". I think the idea of adding a punitive element cannot be justified no matter how much we feel it should. No decent court would allow this as an undisguised charge as it would then be condoning vigilante action. We could call this an administrative fee for locating the offender or for handling the enforcement action.

In some circumstances, a more lenient attitude - towards non-profits, charities etc - might be needed but I would always try to get some sort of token payment just to reinforce the idea that taking someone's intellectual property is wrong.  

[Zollikon]

I appreciate this thread is 2 years old, but most of the books I read are older than that and still relevant, so here goes...

 

I was watching TV last night and nearly fell off my sofa when I say the BBC had used one of my images that is only available on Alamy. Nothing has shown up on my account, yet surely this is all computer-based so it should show up as a sale automatically and immediately on Alamy as soon as it was downloaded? (I highly doubt the BBC would have removed the Alamy watermark!).

 

- having checked, the NUJ rate for the BBC's usage would be about £900 due to repeats, on-sales, international rights, web usage, etc as it appeared on a very popular/famous show.

- a quick check shows the Alamy rate is £199, of which I would get 50%

- the NUJ suggests adding (at least?) 100% for unauthorised usage.

- speaking to a seasoned pro I have met at two different events recently, he told me he requests £5000 every time he finds an unauthorised usage. I laughed and asked if anyone ever pays and he, deadly seriously, said "every time"!

- I am aware of courts awarding punitive settlements to discourage wanton theft - a bit like if you didn't pay £1 for car parking, you wouldn't expect to be fined £1 if caught - try £35 or £70 or even £150 after being clamped! In which case the £5000 starts to make sense.

 

I am new to Alamy, so a few questions:

 

- how long should I wait before doing anything about the BBC?

- I have read somewhere that Alamy does deals with large-use customers where rates are reduced. Do I just have to sit and wait to see if this applies to this case and if  so, what might that £199 actually be? (please don't say £10!!)

- Do I have to report unauthorised uses to Alamy and leave it to them to chase? Or am I free to chase the production company (or whoever else in future) myself if I have the time/will?

- If I chase myself, do I have to stick to Alamy rates or just try for whatever I can get/think reasonable?

- If I independently get payment from the infringer, how much do I give Alamy - 50% of £199 or 50% of the settlement?

 

I am really grateful for Alamy as the photo really wasn't that great and the chances of me selling it to the BBC myself would have been 0%. But I do want paying (and I have free access to a barrister so I will be paid one way or the other!) - this show will make the BBC many, many tens (hundreds?) of thousands of pounds over the coming years and they have a £4,000,000,000 annual budget, so yes, I really do want paying.

 

I appreciate I am probably way too early in posting this, but this is the first time I have experienced this and I don't want to wait in vain for 3 months for it to show up on the system and then be told I'm too late.

 

Any advice from more experienced Alamists greatly appreciated! Thank you.

 

 

 

 

 

[spacecadet]

On 01/12/2018 at 17:32, Zollikon said:

 

I am really grateful for Alamy as the photo really wasn't that great and the chances of me selling it to the BBC myself would have been 0%. But I do want paying (and I have free access to a barrister so I will be paid one way or the other!) -

 

 

 

 

Forget infringement. The BBC has an account with Alamy and self-reports its uses in due course.

You could ask MS to confirm the download, but you've really no cause for complaint for, as LP says, 6 months. MS will tell you the timescal. Make a note of the show and transmission details.

 

[Zollikon]

I really appreciate the very fast reponses, fantastic.

 

6 months?! Wow. How is that justified in the era of computers, shopping basket downloads, etc? I am not going to fight or complain, but that's amazing in this day and age. Is it something to do with waiting while the creator reports extra transmissions, etc? Anyway, I clearly need to adjust my expectations in that regard. So maybe I have already sold one or two more that I don't know about yet - every cloud!

 

I thought the BBC would have a deal with Alamy, thanks for confirming. I assume that means they get a discount - any idea what amounts might be typical (prime time BBC1 comedy, lots of repeats, one pic full screen for about 4 seconds)? Maybe I should be asking Alamy that question but I don't really want to waste their time on my noob questions.

 

I am learning, thanks for helping me do just that

 

[Zollikon]

Just seen this in the contibutor FAQ:

 

"If you’ve seen an image being used, and it hasn’t appeared in your sales history within 3 months, then please let us know by filling in our unauthorised use form"

 

[BobD]

On 01/12/2018 at 17:32, Zollikon said:

 

- I have read somewhere that Alamy does deals with large-use customers where rates are reduced. Do I just have to sit and wait to see if this applies to this case and if  so, what might that £199 actually be? (please don't say £10!!)

 

I would say it will be nearer the £10 than the £199 

 

 

 

 

 

 

[Zollikon]

3 minutes ago, BobD said:

 

I thought someone might say that, drat. So it's probably inflated my ego more than my bank balance.

 

Compared to the £900 NUJ rates value if I'd sold it direct it's an incredible difference. But then as I said, I'd have had 0% chance of selling it to that slot myself (they'd have simply said "no"), so it is what it is - 0% of £900 or 50% of a whole lot less.

 

 

 

[spacecadet]

1 hour ago, Zollikon said:

I really appreciate the very fast reponses, fantastic.

 

6 months?! Wow. How is that justified in the era of computers, shopping basket downloads, etc? I am not going to fight or complain, but that's amazing in this day and age. Is it something to do with waiting while the creator reports extra transmissions, etc? Anyway, I clearly need to adjust my expectations in that regard. So maybe I have already sold one or two more that I don't know about yet - every cloud!

 

I thought the BBC would have a deal with Alamy, thanks for confirming. I assume that means they get a discount - any idea what amounts might be typical (prime time BBC1 comedy, lots of repeats, one pic full screen for about 4 seconds)? Maybe I should be asking Alamy that question but I don't really want to waste their time on my noob questions.

 

I am learning, thanks for helping me do just that

 

Most big media clients self-report, usually in a couple of months, but it can be longer. It's just not practical for a busy picture desk to be invoiced for every image prior to use.

I don't know how much business experience you have but it's normal to work on account. The only sales Alamy gets paid for straight away are probably the PUs and newsletters bought with credit cards. Otherwise Alamy has to wait just as we do and we don't get paid until after it does.

[Sally]

Alamy’s written information states three months. However, if you email them and ask about a use, they will tell you to wait four months. Not sure where six months comes in.

[spacecadet]

5 minutes ago, Sally said:

Alamy’s written information states three months. However, if you email them and ask about a use, they will tell you to wait four months. Not sure where six months comes in.

 

1 hour ago, LawrensonPhoto said:

6 months

 

1 hour ago, BobD said:

 

 

[spacecadet]

1 hour ago, BobD said:

I would say it will be nearer the £10 than the £199 

Yes, but not that near. Depends on the territory but probably high double figures in $.

[Matt Ashmore]

4 minutes ago, LawrensonPhoto said:

The BBC is 6 months if a license doesn't appear in your account after then, then email CR

 

 

 

I've found the BBC to be very slow payers in the past. I think I had to prompt contributor services to prompt the BBC for the one BBC usage that I'm aware of that I've had.

[Zollikon]

6 hours ago, BobD said:

 

 

Thanks all - I now know a lot more than I did 24 hours ago.

 

Re slowness, in business 'might is right'. I don't understand why it would take a big business any longer than an individual to pay a bill, especially in these days of electronic payments - they even have accounting departments dedicated to it if they want to centralise things. When I used to sell direct to newspapers and magazines it was quicker and that was by cheque! - unless the business was failing or had a cashflow issue, then they would screw the little guy with slow payments. I could understand if one cost centre was bulk buying lots of images, but this is an independent production company selling a show to the BBC - they used maybe 10-15 photos in that programme and, as I say, it's a huge show with a huge budget - pretty sure they could afford someone on minimum wage to spend an hour, maybe two, going through a few e-checkouts! I understand economies of scale but don't really find size as an acceptable excuse for slow payment. Same reason the banks used to take a week to process payments - no excuse for that other than earning interest on our money because they could. The only thing that will change things is market forces or technology (or law, I think parliament has been looking at slow payments from large businesses to small suppliers) - I'd be surprised if this behaviour still stands in a few years as things automate more and more. Anyway, this isn't really my fight, I'm just saying.

[losdemas]

1 hour ago, Zollikon said:

 

Thanks all - I now know a lot more than I did 24 hours ago.

 

Re slowness, in business 'might is right'. I don't understand why it would take a big business any longer than an individual to pay a bill, especially in these days of electronic payments - they even have accounting departments dedicated to it if they want to centralise things. When I used to sell direct to newspapers and magazines it was quicker and that was by cheque! - unless the business was failing or had a cashflow issue, then they would screw the little guy with slow payments. I could understand if one cost centre was bulk buying lots of images, but this is an independent production company selling a show to the BBC - they used maybe 10-15 photos in that programme and, as I say, it's a huge show with a huge budget - pretty sure they could afford someone on minimum wage to spend an hour, maybe two, going through a few e-checkouts! I understand economies of scale but don't really find size as an acceptable excuse for slow payment. Same reason the banks used to take a week to process payments - no excuse for that other than earning interest on our money because they could. The only thing that will change things is market forces or technology (or law, I think parliament has been looking at slow payments from large businesses to small suppliers) - I'd be surprised if this behaviour still stands in a few years as things automate more and more. Anyway, this isn't really my fight, I'm just saying.

 

Well said!

[Cryptoprocta]

17 hours ago, Zollikon said:

 

Thanks all - I now know a lot more than I did 24 hours ago.

 

Re slowness, in business 'might is right'. I don't understand why it would take a big business any longer than an individual to pay a bill, especially in these days of electronic payments - they even have accounting departments dedicated to it if they want to centralise things.

It's a competitive advantage for Alamy compared to the others who demand payment in advance or at the time of buying.

 

Also, if a discount is based on number of images bought in a set period, that period has to expire before the number of images purchased can be established.

Or else what happens is a buyer buys images and we are notified, but then they get into a situation where they reach a higher discount threshold, so we get a refund and rebuy at a lower price, and people don't like that either.

[Zollikon]

Hi Cryptoprocta,

I never thought of that - good point. It's not a great drama for me, more an annoyance. But now you have explained that, it makes much more sense to me and that helps me to feel good about things. So thanks!

[Zollikon]

Quick update - the BBC sale has just appeared on dashboard.  I think that's pretty fast sales/order processing.

 

I think they got a good deal, I think I got a good deal and Alamy have their 50% too. Overall, happy.

 

Such a shame about the 20% cut for contributors just announced, which is sadly prompting me to take action.

[MarkK]

On 2/5/2016 at 09:31, KWheal said:

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

I only had them follow-up on an infringement once and it was much more trouble than it was worth.  I received 5.00 for what turned out to be a distribution sale so the hours of follow-up definitely wasn't worth it.  Since then I have found other infringements but cannot justify the time/energy/frustration of asking Alamy to follow-up on them.