Well well. Heineken is the latest Virgin Mobile to fall into the Flickr trap with their allegedly infringing uses of a large number of photos from the Flickr site, with thanks to Rob Haggart over at A Photo Editor for bringing this to our attention – (Heineken Discovers Flickr Isn’t Full Of Free Photography, 8/11/08).Haggart recieved a letter from one of the allegedly infringed photographers, and the offer to “settle” the matter was
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about $30 USD. All sorts of screen shots (here) show Heineken’s website with the images there, since the site has been taken down. Here’s one of Heineken’s responses to a photographer, which reads, in part:“…after our investigations, we have concluded that any use of the images was at best …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…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.Virgin Mobile ran into the same problem, as discussed here, and reported here – Virgin Mobile sued over Flickr image used in ad.
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.”
When will billion-dollar corporations and ad agencies stop trying to go free & cheap for their content? This won’t be the last time this happens – I can promise you.
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Originally published on Photo Business News & Forum on August 11, 2008. Comments are closed; this post is part of the archive.
If any of you reading this thinks that this is going to get better; don’t hold your breaths, learn from what Heineken did to smooth over the situation, that’s how lightly these folks take the issue of photographers rights.
When the people they’re screwing have as much power and as many lawyers as they do.
I’m also really interested to hear how many photographers are upset their photos got ganked, versus how many are thrilled to tell their buddies that Heineken is one of their ‘clients?’
I hope this costs them a lot.
Not in the foreseeable future, because there is no foreseeable circumstance where this will stop being a rational economic choice for them. First, they usually don’t get caught. Second, they usually don’t get called on it. Third, they usually don’t end up paying any signficant money or facing any other significant sanction even in the unlikely event that they are caught and then challenged. Given these miniscule risks versus the relatively large reward – freedom to use whatever art catches their eye and savings in license fees – there’s no reason for them to stop.
Unfortunately, the best solution for this – mandatory statutory licensing fees for unlicensed use – is totally unworkable because nobody will ever agree on a reasonable fee structure that properly compensates for infringement by Heinekin or Microsoft but doesn’t at the same time bankrupt Joe’s Diner.
And it will continue to get worse, not better, as Generation X and then in turn Generation Y, who on average have respectively little and no understanding of copyright laws or respect for copyright holders, continue to fill positions in marketing fields.
M
‘Make some piddling efforts to license the content, knowing that you’ll frequently fail. Don’t sweat it. For every couple hundred pieces of unlicensed content you use, you’ll be contacted no more than a third to half of the time. That means half the content is free for the taking. Then, for those who get in touch, insist on paying only whatever licensing fees (or non-fees, or corrections to the credit line) you budgeted for on the first go-round, and offer only that. Most of the photographers who contact you will accept that. Bingo, you’ve paid *nothing* extra for using the work without permission. Now watch out for the one photographer with a copyright registered in advance (that’s right, less than one in a hundred) and work out a settlement with her.