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Copyright infringement


Al de Man
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I have had sixteen of my gig photos used by Heineken in Ireland on their Website to promote the Oxegen 2008 festival.

 

I'm in the same boat as hundreds of other gig photographers who post their pictures on Flickr.

 

I've not personally contacted them yet but this seems to be the standard reply they're sending out to those that have.

 

"Dear ****,

 

Thank you for your email of July 8th 2008, which brought to our attention the alleged use of images owned by you on the website http://www.heinekenmusic.ie.

 

As you have previously been informed the use of any images at the time your letter was received resulted in the removal of all such images from the website - that course of action was taken by us on a precautionary basis until we investigated the matter.

 

In the above circumstances, and after our investigations, we have concluded that any use of the images was at best (if it could be said to be use at all, given they were immediately removed) use of a temporary nature only and would not form the basis of any copyright claim in this jurisdiction. However, in order to resolve matters, and save time, strictly without admission of any liability, and on a without prejudice basis, we would be willing to make a small payment for the inconvenience caused in having to write to us. Accordingly, we would be willing to pay in full and final settlement an amount of €15 per image allegedly used. This in our view represents a reasonable commercial royalty for the use of such images in this jurisdiction if, as we say above, there was any actual use in legal terms.

 

Before making any payment however, we will require you to provide us with evidence of the alleged use of each image, and proof of ownership by you of the copyright in each such image.

 

Please note that no further payment offer will be made in relation to this matter. If you wish to take up the offer, please provide us with the proofs referred to above.

 

Yours faithfully,

 

****"

 

Should I just accept £200 and be done with or should I hold out for more? The photographers that have received this response consider it quite insulting and derisory given that an image service such as Getty could charge something like $700 per image and I know one guy has submitted an invoice for £500 per image.

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I have done a fair bit of copyright law study as part of my degree, I could well be wrong but as far as I know the duration of the infringement has little or no bearing on the legality of the case (although obviously, if they had used them for longer the issue becomes more complex, but brief copyright infringement is no more legal than repeated or longstanding copyright infringement) so you are well within your rights to ask for the fee you are entitled to.

With regard to their "if it could be said to be use at all" comment, if they genuinely believed that the the fact that they instantly took them down when challenged clears them of liability they are either stupid or poorly advised.

Don't accept the two hundred quid, fight it.

A) They are worth more than that

B) Don't let "the man" get away with it

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I have done a fair bit of copyright law study as part of my degree, I could well be wrong but as far as I know the duration of the infringement has little or no bearing on the legality of the case (although obviously, if they had used them for longer the issue becomes more complex, but brief copyright infringement is no more legal than repeated or longstanding copyright infringement) so you are well within your rights to ask for the fee you are entitled to.

 

It was at least a week from when I first knew until they got taken down. I have no idea how long they were up there before I was told.

 

My girlfriend tells me that temporary doesn't come into it and a week wouldn't be considered temporary anyway.

 

With regard to their "if it could be said to be use at all" comment, if they genuinely believed that the the fact that they instantly took them down when challenged clears them of liability they are either stupid or poorly advised.

Don't accept the two hundred quid, fight it.

A) They are worth more than that

B) Don't let "the man" get away with it

 

I think in my mind I was coming to that conclusion and wanted a second opinion. Thanks Ash.

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Should I just accept £200 and be done with or should I hold out for more? The photographers that have received this response consider it quite insulting and derisory given that an image service such as Getty could charge something like $700 per image and I know one guy has submitted an invoice for £500 per image.

 

Unless you really need £200 Al De man, then no way, play hard ball with them. You have all the cards......play them

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I'd say you've pretty much got them bang to rights, they've even acknowledged they committed copyright infringement. Aslong as you can prove it threaten legal action.

 

They'll get scared and you'll get a big at least 5 digit out of court settlement from heineken.

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If you want to pursue it but are anxious about the legal fees, you could chase them with a county court summons issued under the 'small claims' legislation. This is procedure which actually prohibits lawyers from being in the courtroom with you. And it scares the bejesus out of big companies.

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The latest is that I've contacted them and received their first standard reply pasted below and should be getting the one listed above any day soon.

 

"Dear Alan,

 

Thank you for your note relating to images displayed on http://www.heinekenmusic.ie.

 

We are currently looking into the issues which you raised and will contact you shortly in response.

 

In the meantime, please note that, without any admission whatsoever, the photo's) complained of has/have been removed from the website while the matter is being looked into.

 

Regards,

Leona"

 

One of the Australian photographers has contacted their stock library agency who would charge an Irish Website US$550 for one month commercial use per image. We believe the images were up from 18th June and removed after complaints on the 8th July so about ⅔ of a month. Multiply the infringement by 16 and I have a good case for a claim of about £2900.

 

Also, this video has been discovered which we believe to be from the people that wrote the Website for Heineken. Check out 49 seconds into it.

 

 

http://www.youtube.com/watch?v=O8O9QaGjd1I

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I'd grab a copy of that video before it gets pulled.

 

Don't worry, a copy was taken before it was even brought to my attention.

 

On a seperate note, does anyone know any newspaper journalists who would be interested in running an article on how a huge multi-national corporation is trying to steam-roll over a local photographer having stolen his pictures taken at a charity gig?

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The latest is that I've contacted them and received their first standard reply pasted below and should be getting the one listed above any day soon.

 

"Dear Alan,

 

Thank you for your note relating to images displayed on http://www.heinekenmusic.ie.

 

We are currently looking into the issues which you raised and will contact you shortly in response.

 

In the meantime, please note that, without any admission whatsoever, the photo's) complained of has/have been removed from the website while the matter is being looked into.

 

Regards,

Leona"

 

One of the Australian photographers has contacted their stock library agency who would charge an Irish Website US$550 for one month commercial use per image. We believe the images were up from 18th June and removed after complaints on the 8th July so about ⅔ of a month. Multiply the infringement by 16 and I have a good case for a claim of about £2900.

 

Also, this video has been discovered which we believe to be from the people that wrote the Website for Heineken. Check out 49 seconds into it.

 

 

http://www.youtube.com/watch?v=O8O9QaGjd1I

 

Al, I'm assuming that they have 'stolen' your images from Flickr, and that also, all your photos were marked with the standard copyright sign, in which case they have stolen your images - and intellectual property - as they haven't received your express permission in writing to use them.

 

I bet the Sun would be interested in the story, especially if they can link it to more than one incident.....

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Having operated a number of commercial websites myself (including the Manchester 2002 Commonwealth Games site) I believe you are in the right about copyright but I fear your figures are somewhat inflated.

 

Generally you can buy disks of stock photography for about £200 that you then use as licensed photography. This is applicable to generic imagery normally of course.

 

Specific imagery, such as the imagery you describe, may be worth more dependent on the quality and other sources of similar imagery that exist. I would certainly not countenance paying the figures you mention about the Irish website nor would I expect a court to uphold claims of that amount.

 

If Heineken like your shots and want to put them back on the site with your agreement I would suggest a more reasonable compromise is your best option. Perhaps £500. That way everybody is happy.

Edited by TopGun
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The other issue I have seen does make a mockery of copyright law on the net.

Ill give you a scenerio which I have heard of (sorry Al Im going to use you as an example)

 

Al takes his photos and posts them on flickr

I start a website on one of the free sites http://www.yahoo.com/members/freephotos

I copy Als photos from flickr onto my site and then say they are royality free

Heineken come along and take the photos from http://www.yahoo.com/members/freephotos

 

Although this has not happened and it looks like they have taken form flikr. The fact that they have offered you a fee implies they do know!

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Specific imagery, such as the imagery you describe, may be worth more dependent on the quality and other sources of similar imagery that exist. I would certainly not countenance paying the figures you mention about the Irish website nor would I expect a court to uphold claims of that amount.

 

If Heineken like your shots and want to put them back on the site with your agreement I would suggest a more reasonable compromise is your best option. Perhaps £500. That way everybody is happy.

 

The festival in question has already taken place so there's no need for them to continue promoting it.

 

To be honest my reason for continuing to battle is the constant denial of any wrong-doing by Heineken. If you had a career based on photography and received that letter in my original post I'm sure any of us would be equally p*ssed-off.

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The festival in question has already taken place so there's no need for them to continue promoting it.

 

To be honest my reason for continuing to battle is the constant denial of any wrong-doing by Heineken. If you had a career based on photography and received that letter in my original post I'm sure any of us would be equally p*ssed-off.

 

Absolutely agree I would be ****ed off. Though I'm not sure a pro photographer would place his best work on sites like Flickr for exactly this reason. The advice offered above about small claims is good as it will cost you very little but you will only gain about £400 back, although it is probably assured.

 

Given the festival is over that might be the way to go without undue cost on yourself for a higher risk. Your choice really!

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I'd be over the moon if a company like Heineken used some of my photos as a promotion, in fact I would probably pay them £200.

 

Take the money and run before you get nothing Al. They are in the big league and would eat you up for breakfast.

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I'd grab a copy of that video before it gets pulled.

 

Don't worry, a copy was taken before it was even brought to my attention.

 

On a seperate note, does anyone know any newspaper journalists who would be interested in running an article on how a huge multi-national corporation is trying to steam-roll over a local photographer having stolen his pictures taken at a charity gig?

 

Absolutely ball bashingly hilarious.

 

ROFMFL.

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Take the money and run before you get nothing Al. They are in the big league and would eat you up for breakfast.

Don't listen to this Al, fight the power. You are legally in the right, the size of the company or the expertise of their legal department should not intimidate you into settling for any less than you deserve.

P.S, do keep us up to date on you progress, I will be very interested to see how you get on.

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I'd be over the moon if a company like Heineken used some of my photos as a promotion, in fact I would probably pay them £200.

 

Take the money and run before you get nothing Al. They are in the big league and would eat you up for breakfast.

Don't listen to this Al, fight the power. You are legally in the right, the size of the company or the expertise of their legal department should not intimidate you into settling for any less than you deserve.

P.S, do keep us up to date on you progress, I will be very interested to see how you get on.

 

Cheers Ash. Don't worry, I've got no intention of letting them off lightly. Their size and budget available to fight in court doesn't mean jacksh*t if they're in the wrong.

 

A few of the photographers' legal advisers, including my own, are away on holiday right now so it's all gone a bit quiet but I will keep posting updates of significant happenings.

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If it was me I would issue them with a small claims court summons for the maximum amount you can ask for £5000 ?

 

Regards contacting the media I would not think they would want to **** off a major brewery who would just talk mickey mouse numbers regards next years advertising newspaper budget.

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