Screenshot of the Heinekenmusic.ie website.
Heineken Ireland are the second company this month to be facing allegations of copyright infringement after they found out the hard way that not all images on Yahoo's Flickr site are free.
The problems began back at the beginning of July when photographers from all over the world noticed that their images were somehow appearing on the Heinekenmusic.ie website, without them even clicking a mouse to put them there.
Hundreds of images, which were being used to promote the Irish music festival, Oxegen were taken from a number of sources, including Flickr and used without permission of the photographers.
Some of the photographs came from Flickr's API (application programming interface), and when I asked Flickr about their policy, terms and conditions regarding the use of the API and the site in general, a Yahoo spokeswomen said:" Flickr does not own or control the rights to the photos on the website and is not in a position to license photos, offer permission for their use, or answer questions on behalf of Flickr members. We encourage individuals or entities wishing to use photos they find on Flickr to contact the owner directly."
Even though the spokesperson and the site's terms and conditions clearly state this, Heinekenmusic.ie still featured copy-written images belonging to photographers worldwide.
Heineken Ireland's spokesperson, Pat Walsh said: "Heineken takes the issue of intellectual property very seriously. Consistent with best practice for website owners, as soon as Heineken became aware of any potentially unauthorised material it was removed immediately. Heineken is satisfied that no breach of copyright has occurred."
As Pat said the site was taken down as soon as the company became aware of the potentially unauthorised material but this did not stop photographers sending letters to the company asking them for normal commercial payment. In response to their letters, Heineken Ireland's Communications Brand Manager, Ms Leona Daly said: "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. After our investigations, we have concluded that any use of the images was at best (if it could be said to be used 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."
The company offered to pay €15 for each of the photographs that were allegedly used on the site.
Joshua Burton is a photographer from the South of England whose images appeared on the site and he feels the sum Ms Daly has offered and the response Heineken Ireland have given is completely unacceptable.
"Because they had to withdraw all images which were subject to all rights reserved licenses, Heineken seem to think the images were at best used only in a temporary nature and so can't form the basis of any claim. They couldn't be further from the truth."
Many of the photographers are now planning to take legal action against Heineken Ireland, as they are disgusted to think that such a large company can try to get away with paying them so little.
One photographer, who cannot be named for legal reasons said: "The idea of temporary use is a farce. The photos were up on the website for all to see. If displaying the images on a commercial website isn't using them I don't know what is."
An agency called Boondoggle launched Heineken's site and one of the photographers I spoke to said that on the 8th of July, Jesse Wynants of Boondoggle posted the following statement on their website: “Normally our player should have only displayed photos with commercial CC license. Here, something has gone terribly wrong and we've currently disabled the Flickr photos module on the player. We're currently looking into the thread on Flickr and to see what we can do for the photographers. I'm sorry if we've offended photographers.” His reply was soon taken down and I have contacted Boondoggle to ask them why it was removed and as of yet there's been no reply.
When I asked one of the photographers involved if he places any blame on Boondoggle, he replied: "It looks like Boondoggle could be the culprit here and the quickly removed comment from their employee seems to highlight this. However, the website belonged to Heineken and was for their commercial gain; therefore they are responsible for making good to photographers."