Pixsy Email Demand

If you are worried about infringement or your work has been copied and you want to take action.
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joej
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Pixsy Email Demand

Post by joej » Sat May 11, 2019 8:07 am

Hi

I hope some of the experts on the forum can help regarding an issue we are having with a company called Pixsy.

They are demanding a payment of £550 for an image that has been used on our blog site, which is very low traffic and the page concerned has only ever received 15 unique page views, although they have categorised it as a company and commercial it's a personal blog.

The image concerned is royalty free and was made freely available on Flickr on a creative commons licence CC BY 2.0. According to Pixsy valid attribution was not showing for the image in their screenshot of the page.

Could I ask Pixsy for more proof than of their screenshot that no attribution was not on the page at their time of capture? A screenshot proves nothing as these can be easily created.

The potentially infringing image concerned was removed straight away with no plans to use it in the future. I have read that on a creative commons 4.0 a licence they have to give an email asking for the image to be taken down within 30 days - I know its slightly different to a 2.0 licence but the fact remains that its a freely available image made available by the author - so why wasn't a take down notice made?

The other issue is the value for the image they are demanding if it needs to be paid and who owns the image

They mention a fair market rate based on the National Union of Journalists and that many Pixsy photographers don't share their work on stock photography sites as it devalues their work but I have since located the exact same image available on a stock photography site from a different photographer - although the published date was later than that of the royalty free Flickr image.

So who owns the photo and would you say a fair market value if required for an image made freely available on Flickr given that its listed at a low price on a stock photo site.

Is it recommended that I do nothing? or try to settle with them? - as they say legal action will be made if payment is not made.

Many Thanks
Last edited by joej on Sun May 12, 2019 1:41 pm, edited 1 time in total.

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AndyJ
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Re: Pixsy Email Demand

Post by AndyJ » Sat May 11, 2019 3:57 pm

Hi Joe,

If you haven't already read this other thread on this subject, take a moment to read it through, especially the postings towards the bottom of the first page and onwards. That way I don't need to reiterate all the detail contained in it.

In essence a claim against you, if it went to court, would be based soley on the lack of an attribution for the author of the photograph. This would be contarary to section 77 of the Copyright Designs and Patents Act 1988. This is not a trivial matter which can be ignored, but equally it is not the same as infringement by copying (section 17) which would appear to be the basis of Pixsy's claim email. The reference to the NUJ freelance rates is therefore wholly inapplicable in this instance.

You mention that the 'exact same image' is available on a stock photography site but by a different photographer. There are two explanations for this. The first is that while the two may be visually very similar the underlying digital files will not be identical (ie they won't produce the same hash value or contain the same metadata) and so the only relevance of the second image is that it helps to establish the market value of the first (disputed) image. The second explanation is that the two images really are identical and therefore are by the same author who uses two identities, one for certain media such as Flickr where the image is issued with a CC licence, and a different identity on the stock site to generate income. If the second explanation applies here, then I suggest the whole claim would be groundless given that it would invalidate the CC licence. Indeed such a practice would lead to the suspicion that the purpose of the Flckr image was to act as bait so that users who took advantage of the CC licence could be subjected to claims of this sort. This has been known to happen in the USA.

As with my advice in the other thread, if you can identify the author of the disputed mage, it might be worth trying to contact them and negotiating a sensible settlement based on the actual usage and circumstances, rather than Pixsy's fanciful claim. You are not required to deal with Pixsy if they have not provided:
  • Sufficient information that the disputed image is the work of the photographer, and that it was used without an attribution,
  • Evidence that they are authorised to act on behalf of the photographer they say is the owner of the copyright,
  • An adequate explanation of how the amount claimed was arrived at.
And finally as mentioned in the other thread, Pixsy have no standing to start legal proceedings. Only the copyright owner (presumably the photographer) can do this. While Pixsy may say they can call on lawyers affiliated to their company, the client would have to be the copyright owner, not Pixsy. This may sound like hair-splitting but it has previously led to claims being thrown out by the courts.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

joej
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Re: Pixsy Email Demand

Post by joej » Sat May 11, 2019 6:10 pm

Hi Andy,

Many thanks for your detailed reply, it really is appreciated.

How can you check if its the same image?
I have run the freely available creative commons flickr image concerned through https://www.tineye.com and it says it is the exact same image that is found on the stock photography site. Does this mean its the same hash value so its the same photo? If so how does it make the claim groundless and how should I respond?

With regard to how they got to their fee they said that they use the National Union of Journalists price guide. This figure is configured upon a number of matrices, including: the size of the published image, usage, the length of time posted, as well as their photographer (clients) own licensing history.


Would you say that that is an adequate explanation of how the amount claimed was arrived at? Which seems very high considering that the market value of this image is much lower.

Many thanks
Last edited by joej on Sun May 12, 2019 1:33 pm, edited 2 times in total.

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Re: Pixsy Email Demand

Post by AndyJ » Sat May 11, 2019 10:35 pm

Hi again joe,

I don't think the fact that Tineye says they are the same image can be taken as conclusive evidence that they are. You should check to see if there is any embedded metadata in either or both images (this is sometimes referred to as EXIF (Exchangeable image file format). This data can be viewed using some picture editing software like Photoshop or Google's (free) program Picasa. There are also many free downloadable tools for viewing EXIF data, such as Faststone. If you are lucky enough to find metadata for both images, and the data is identical, then that would be fairly conclusive evidence that they are one and the same.

Other than the explanation I mentioned earlier, I suppose there could be a number of reasons why one image can be found with a CC licence of Flickr, and the same image under a different name on a stock site. Perhaps the most likely is that the real photographer/copyright owner is the person who placed the image on Flickr, and someone else took the image from there and hosted it on the stock site in order to make money out of it. Or it could be the reverse. In any event if the two images are identical, it completely undermines Pixsy's claim because there is serious doubt about the identity of the copyright owner and the validity of the CC licence. An image cannot be released under a CC licence and simultaneously be available via a stock site for a payable usage fee. If the images are identical, how do Pixsy account for the image being available via the stock site?

I don't think the breakdown that Pixsy have provided is adequate. As already mentioned this is not an instance where the NUJ rates apply. Secondly while they may say that the photographer's rates are reflected in the claim, clearly the fact that substantially the same (even if not the identical) image is available at a fraction of the licence fee they are demandng tends to suggest that that is not the image's true market value. The fees that Pixsy have recovered are irrelevant as that merely indicates what they have managed to extract from others, no doubt in a similar way that they have approached you. Because the image was released under a CC licence, no fee would be payable if a user fully complies with the licence terms. As I pointed out in the other thread on the subject, a copyright owner can't go to court to claim damages based on a usage fee for an image which he has provided for free under a CC licence. The failure to provide an attribution is not the same as infringement of copyright. Therefore what has been recovered by Pixsy in other instances probably reflects the fact that other people in a similar situation to you were unaware of the distinction between primary infringement and an infringement of a moral right. Indeed, I wonder if Pixsy understand the difference. Incidentally moral rights are not transferable, meaning that they cannot be assigned to a claim management company such as Pixsy. In other words, if the copyright owner wants to take the matter to court he will need to engage his own lawyer, with all the associated risk over legal costs which cannot be recovered through the normal IP small claims route. This means that even if he was to win damages in court he would probably be out of pocket once he had paid his legal costs. Remedies for the infringement of moral rights are assessed on a completely different basis to that used for primary (ie copying) infringement - see section 103 - and this basis may be entirelly unrelated to the usage fees which would ordinarily apply in the latter. Unfortunately cases involving non-attribution of CC licensed works are very few and far between and so we have no general guide as to the sort of damages which might be awarded. Suffice it to say that the UK courts tend to treat moral rights far less stringently than primary infringement cases.

In summary you should definitely refuse to pay Pixsy's initial demand, on the grounds that its basis is fundamentally flawed, both in terms of the type of infringement which may be at issue, and as to the sort of damages which might be recoverable. Normal usage fees or sums recovered in previous instances have no relevance to a claim of failing to correctly implement CC terms. Unless you have some compelling reason why the CC licence could not be fully complied with, then you are probably liable for the failure to provide the attribution and it is equitable that you reimburse the photographer for this. I cannot advise on what would be a sensible settlement, but I think it would be in the low tens of pounds rather than the mid hundreds. If you are able to deal directly with the photographer this will be a much simpler process, as you (and he) don't have to worry about Pixsy demanding their percentage of any settlement, which they clearly haven't earned due to their mishandling of this claim.
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Re: Pixsy Email Demand

Post by joej » Sun May 12, 2019 9:11 am

Hi Andy

Thanks for your detailed reply, there is a lot to take in. Is it ok to DM you?

I have checked the EXIF data and the stock photo contains author information which matches the photographer name on the stock site but no camera data but the Flickr image contains no author information but contains camera data. The only fields that match on both fields are the creation date.

I have been reading through the Tineye documentation and the algorithm used produces quite accurate results based on hash values so its a pretty good chance its the same image. Not only do the images seem to match to the human eye but the hash values do match from Tineye.

Going forward is it worth continuing dialog with Pixsy? if contact with the photographer cannot be made.

If this is the case could I not just go back to Pixsy to try and end this case as their claim now is fundamentally flawed because it appears on two sites The validity of the owner of the image comes into question because it also appears on a stock photo site. How can Pixsy account for this?

I am also not convinced that their screenshot alone is sufficient as these can be easily created.

Finally as you mentioned for their the breakdown of costs as the NUJ rates do not apply in this instance. With regard to the photographers rates that Pixsy keep referring to in this case its not true market value, as the exact same image is available on a stock photography site
Last edited by joej on Sun May 12, 2019 1:32 pm, edited 1 time in total.

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Re: Pixsy Email Demand

Post by AndyJ » Sun May 12, 2019 1:02 pm

Hi joe,

As a precursor to my reply, I have good grounds for suspecting that Pixsy monitors this website and so obviously anything you and I discuss here will, in all probability, be known to them ahead of time.

Thanks for the update on the EXIF data and the Tineye hash values. The chances of the hash value match being a fluke is very low and so I agree that these are probably the same image. Sadly it is relatively easy to alter or erase EXIF data. Indeed some websites automatically strip out all metadata from uploaded images, and so I don't think the two creation dates provide much clarification about what is going here. But what is clear is that there is now considerable doubt surrounding the whole issue. This means that the grounds on which Pixsy's demand is based (the CC image on Flickr) are unreliable and therefore the claim should be rejected because, if the matter went to court, the first major issue the court would need to resolve would be who was the true author and thus the copyright owner. If it turns out that one person is responsible for posting both images, then clearly the incongruity of the same image being subject to a CC licence and a paid-for licence means that Pixsy's claim (based on faulty application of the CC licence) is no longer tenable. My view would be that, if the image was posted by the same person on both sites, the CC licence would be rendered unenforcible by virtue of the paid-for licence via the stock site. And if the same image has been posted by two different individuals, clearly you (and I suspect Pixsy) have no way of knowing who is the genuine copyright owner, and again this renders the Pixsy claim untenable.

So, if you decide to continue corresponding with Pixsy, I suggest your reply should be along the lines that you cannot in the circumstances accept that, prima facie, their client is the true copyright owner and hence you do not intend to entertain their claim. You may or may not decide to also mention that even if the photographer they represent is the true copyright owner, the method by which they have calculated the amount of the claim is seriously flawed as they have portrayed this as a matter of copyright infringement, whereas, hypothetically, it would be a matter of moral right infringement. Obviously you should not at any stage admit liability for any infringement, but you can speak about hypothetical situations.
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Re: Pixsy Email Demand

Post by joej » Mon May 13, 2019 6:44 am

Many thanks Andy for all your help

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Re: Pixsy Email Demand

Post by Fatty » Tue Jun 11, 2019 2:52 pm

This is an interesting case. I agree with most although not all of what Andy J says.

At the heart of this case is who posted the image as a CC image on Flikr. If it was the photographer himself then he has valued his own work as zero and the claim is fundamentally flawed. If the CC licence demands a credit and non was given then he could perhaps theoretically sue for this lack of attribution but would win only a token amount if anything at all. I have in the back of my mind that such a case in Germany resulted in 100 Euros damages for lack of credit. I have never heard of such a case happening in the UK as it is not worth the trouble of even a small claims case for just 100 Euros.

Having said that, if the image on flikr was not uploaded by the photographer and is in itself an illegal unauthorised copy then the claim is perfectly valid. Copyright Infringement is a strict liability tort and you are liable for the infringement even if somebody incorrectly said you could use the image. Suitable case law would be David Hoffman vs Drug Abuse Resistance Education (UK) Ltd [2012] EWPCC 2 http://www.bailii.org/ew/cases/EWPCC/2012/2.html
If the image was added to Flikr without the knowledge or permission of the photographer , then you need to pay the photographer but can then make your own claim for reimbursement against the Flikr user.

You will need to correspond with the claimant to find which of the two scenarios are the case here. Im sure Pixy has no interest in attempting to claim for an image which was offered lawfully as CC for free so send them a link and ask them to explain it. Be warned though, that both Flikr and the internet in general are rammed full of illegally copied images and very many of them have been unlawfully marked as Creative Commons without the knowledge or permission of the copyright holder. The reverse situation where the photographer has given away the work for free as CC and then sought to enforce copyright is much more unusual although I don't doubt that somebody somewhere has tried it, I have never come across such a case in the UK.

Going on to the value of the work, it is not possible to say any sum is too high or too low without knowing what the photographer normally charges. The court will only be interested in what other photographers charge if they have no evidence to show what the photographer in question charges. Now if the photographer has given away the work as a Creative Commons, then the value of the work is zero. If on the other hand, the photographer normally charges a 3 figure sum then that is the value, plus any additional damages for lack of credit , flagrancy and to dissuade further infringement.

The Intellectual Property Enterprise Court has typically awarded between 2x the normal value and 20x the normal value of the work, although most cases are very much nearer the 2x than the 20x. Assuming the photographer has not given his work away free then if he normally sells his work for a pound for website use, then he might reasonably claim between one pound and twenty pounds with claims up to 6 pounds being more likely and reasonable. If the photographer is at the top of his game and normally charges 1000 GBP then just add 3 noughts to those figures. The courts would likely be displeased if a photographer normally charges just a pound and then claims 400 GBP , however they do appear to be supportive of artists making reasonable claims.

Typical selling prices for experienced professional photographers are often into three or four figures for a website use and therefore a amount of 400 to 500 may not be at all unreasonable. Many of the cases in the IPEC have involved damages awards into 4 figures per infringed image. If the amount is reasonable, then I dont doubt that Pixsy has built some negotiation room into their claim and thus if its a genuine claim for a reasonable amount then negotiation would be the best way forward, but before you make any offers of settlement you really need to know who provided the image free as a CC image and what the photographer normally charges. You say the same image can be found on a stock image website, well if that's the case and it really is the very same image, the value of the image is right thereon the stock site.

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Re: Pixsy Email Demand

Post by AndyJ » Tue Jun 11, 2019 3:42 pm

Hi Fatty,

I think you have rather missed the OP's original point. The Pixsy claim was for the Flickr image - see the third paragraph of his first posting. Hence all the stuff about what is due to the other photographer (ie not the one responsible for the Flickr image) is irrelevant since Pixsy is not claiming on his behalf. Pixsy have taken a mechanistic and flawed approach, and since they purport to be agents of the Flickr photographer, and are not the copyright owner themselves, it has been suggested to Joe that, in effect, he denies their claim and refuses to deal with them. It is not Joe's job to ascertain who is the real photographer.
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Re: Pixsy Email Demand

Post by michalaki » Wed Jun 12, 2019 11:17 pm

Hi JoeJ
What happened in the end? Or is it still ongoing?
Thanks
M

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