The heinekenmusic.ie website is a mashup that aggregates... oh, I'll let them tell you themselves...
"As principal sponsor of Oxegen'08, Heineken Music provides its website users with aggregated Third Party Content from sites such as, including, but not limited to, Yahoo, YouTube, Flickr, LastFM, Wikipedia, MySpace, Facebook, Qik, etc. HeinekenMusic.ie does not provide content but rather operates as an enhanced aggregator website. HeinekenMusic.ie does not host aggregated Third Party Content and keeps only technical and personal data in accordance with our Privacy Policy. HeinekenMusic.ie respects your Privacy and that of others. We encourage you to read our Privacy Policy.
The use of aggregated Third Party Content may only be done in compliance with the authorisation or license granted by the respective right holders. We respect the intellectual property of others. If you believe that material over which you have rights has been reproduced or used in such a way as to constitute an infringement, you should contact the Third Party Content host." (cut and paste from their terms)
It appears that it's not their fault if they breech your copyright but the fault of your content host... sorry, run that by me again. That sounds a bit like "don't blame me for stealing your priceless ming vase, blame your house for not keeping me out."
Surely this is not an acceptable defense to blatant, systematic and deliberate infringement of the intellectual property rights of many content creators whose work is all rights reserved and yet is being displayed, for commercial gain, on this web site.
If you look, I did, many of the images from flickr that are being pulled into the mashup are All Rights Reserved, but of course, this abuse of IP rights is not their fault, it's flickr's fault.
I really, really, really want someone to sue Heineken for this one... the law clearly needs to be clarified.
Screen grabs supplied by Blackshadow
Here is a cropped screen grab of the web designer's honourable admission of accidental infringement, posted at the Boondoggle blog but quickly removed. A full screen grab of this page as a PDF is here.
Heineken Music showing embedded Flickr photos. A PDF of a larger version is available here
Heineken Music showing the placeholder image that was huriedly substituted. A PDF of a larger version screengrab is available here
©A admin
I just received the same email from Heineken. I have forwarded it to my attorney - letting them know I am not at all happy with it and asked if they would act on my behalf.
I also let them know there are a number of other photographers in the same situation and asked if they think a class action is worth considering.
Yes, it's poker until it gets to court. Their letter is a deflection, aimed at discouraging claims and trying to limit them. You've probably gone straight into the 'problem' pile. It's now all about persistence and not blinking...
You will need to set a time limit for your offer of a retrospective licence before they will respond, else why would they? Tell them they have 7 days to indicate whether they accept your proposal, else you will take legal action against them for damages arising from copyright infringement. Make sure anything you write is headed 'Without prejudice save as to costs' and is sent recorded delivery.
Actually, ignore all that. Since you have a lawyer take his advice, not mine.
Please feel free to upload the screen shot here, or email it to admin@copyrightaction.com if you wish and I'll attach it to this thread. It would be a shame to allow such an intriguing document to remain hidden
©A admin
Thanks for the info; I'll pass it on to the flickr group.
I have a screen shot of the blog post.
It's my feeling that the response I have seen is lawyers trying it on.
I'm wondering if the reason I haven't received any response yet (apart from acknowledgement several weeks ago that they were "investigating") is because I mentioned that I would pursue the matter legally if they didn't pay the settlement fee I asked for (and cced in my lawyer who specialises in photo IP law).
I don't know whether there is any basis in Irish law to support Heineken's peculiar assertion that their publication was not infringing use. That sounds pretty unlikely to me, Ireland is a signatory to Berne and the FAQ at The Copyright Association of Ireland shows no significant divergence from UK law. Heineken published without authority and without fair dealing exceptions nor any wriggle room as far as I can see. Lawyers trying it on probably, but little hope of a court being convinced. I also think it's probably possible to pursue Heineken in UK. The 15Euro offer is derisory. I'd suggest the Flickr group contact IPP and see if they can make a case.
Did anyone get a screen grab of the web designer's blogged admission that a mistake had been made? It's possible the page may show up here on the Wayback Machine in about 6 months time.
It's really good to see such resistance to theft at Flickr.
©A admin
I'm one of the people who's work was leeched by heinekenmusic.ie and a number of us are pursuing the issue.
Rather than regurgitate everything that has happened those interested should take a look at http://www.flickr.com/groups/thatsmypic/
heinekenmusic.ie pulled their whole website down for a while once they started receiving demands for payment for unauthorised use of copyright material.
Their web developer posted a blog post saying that a mistake had been made and that no copyright images should have been showing up - this blog was removed pretty quickly (I bet after their lawyers saw it).
In the last few days Heineken have made an insulting offer to a couple of photographers at the rate of 15 Euros per image used. The text of their settlement offer is below:
I am yet to receive this "settlement offer" but will definitely be pursuing it legally if this is the response I get.
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