PicRights Solicitor Letter Demanding Fee For Alleged Image Use

If you are worried about infringement or your work has been copied and you want to take action.
Pete79
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Re: PicRights Solicitor Letter Demanding Fee For Alleged Image Use

Post by Pete79 »

Evening All,

Perhaps I should start a new thread however I’m
In a similar position in that I’ve received a lawyers letter demanding payment for a copyright infringement on behalf of picrights.

Some background I purchased a self catering property 4 years ago. Along with the property came a website. Rightly or wrongly I only transferred the hosting of this web site into my name in May last year (2019). The image in question was reported as being on the website in April 2019. When I took over hosting the previous owner provided me with old web files/content so when I took over hosting an old version of the website was revived and the image in question was no longer hosted. I’ve never actually had possession of said image.

The lawyers are being pretty persistent and I’m actually finding the whole experience pretty stressful.

Any advice on my position would be greatly appreciated. I’m in Scotland if that makes any difference legally.

Thanks.
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Re: PicRights Solicitor Letter Demanding Fee For Alleged Image Use

Post by AndyJ »

Hi Pete,

Let's deal with your last question first. Although the legal system is different in Scotland, in the case of copyright the law is the same as in England and Wales (section 157 of the Copyright Designs and Patents Act 1988). The only difference is that, if the rights owner wished to pursue the matter in court he/she would do so through the Sheriff Court. There is no small claims track specifically for intellectual property issues in Scotland.

If I have understood you correctly, during the period you were the registered owner of the domain name (ie May 2019 to now) the image concerned was not displayed on the site. It seems odd that PicRights are only now bringing this claim when the image is no longer on the site.

So, if the claim relates to April 2019, before you were the registered owner of the domain name and you can prove this with the transfer details (such as the Whois entry for your URL), and the previous website owner had not informed you of the provenance of the image in question, then I can't see how you would be liable for any primary infringement unless the claimant (known as the Pursuer in Scotland) was able to prove that you were responsible for putting the image there. Being the owner of the self-catering property itself at the time is irrelevant as the website for it could, theoretically, have been operated by a third party on your behalf, rather in the way Airbnb operates. If it can be shown that you had full control over the website at the relevant time, there is possibly a case that secondary infringement (that is, possessing and using an infringing image in the course of business) might apply, but since you were not aware of the image's status, you would not be liable by virtue of the last sentence of that section.

I really don't see how PicRights (or more accurately, their client) have a valid claim against you in this instance. Any liability lies with the previous owner of the website who was responsible for putting the image there.
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Pete79
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Re: PicRights Solicitor Letter Demanding Fee For Alleged Image Use

Post by Pete79 »

Andy, many thanks for the detailed response. That’s reassuring to read. I’ve just went back through my records and it was May ‘19 when the domain was transferred. I have an email trail with the hosting company detailing this. At no point was said image mentioned to me. The only other point worth mentioning. I had paid the previous owner the hosting cost prior to transfer. Not sure if that makes any difference at all.

Thanks again.
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Re: PicRights Solicitor Letter Demanding Fee For Alleged Image Use

Post by AndyJ »

Pete79 wrote: Wed Sep 09, 2020 7:07 pm The only other point worth mentioning. I had paid the previous owner the hosting cost prior to transfer. Not sure if that makes any difference at all.
I think this helps to establish that the previous owner was effectively responsible for the site and its contents up to the point where the registration was put in your name. Therefore if the date of the alleged infringement is April 2019, this pre-dates your formal assumption of responsibility and PicRights are chasing the wrong person.
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Re: PicRights Solicitor Letter Demanding Fee For Alleged Image Use

Post by scamp210 »

Hi all

@andyj thanks for your help to all the other posters - i too have an issue with pic rights so would be grateful for some advice…


I have just received an email from 'picrights.com' asking me to pay £750 for a photo i used of an athlete I worked with - on my physio website. They say they are acting on behalf of reuters media. On clicking a link it does bring me to a reuters website saying the following: "If you have been contacted by PicRights on behalf of Reuters, please resolve the matter via the PicRights Resolution Portal, using the reference number provided, or contact your Reuters account manager."

They do not specify what they are charging for or how long they are alleging the image was used on the site.

- I obviously should have not used it - i did put it in there when i made the website but didnt change it to a non copyrighted pic like i intended!

So would be grateful for your opinion/advice...

1. Is picrights.com a legit company? I have seen some people online just saying ignore them….some of their approach of just emailing out of the blue does smell a bit of a scam.

2. The athlete is a friend of mine- and they know i used the image- however i am wondering if they would have any control or authority over the use of his image or would reuters fully own this image ( I was thinking i could ask him if i needed support if this would help me in this instance)

3. If there is no way around it - is there any way of working out what i should really owe - compared to 750.... which seems to be a very high number picked out of thin air

The reuters website allowed me to select use of the image as 'editorial->digital-> website -> which came to £101 - they said for commercial use i would need to submit an enquiry.


Hope this all makes sense - grateful for any advice - the fact I am unsure if the company is legit makes it hard to consider paying up and how much.
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Re: PicRights Solicitor Letter Demanding Fee For Alleged Image Use

Post by AndyJ »

Hi scamp210,

First of all, yes, PicRights is a legitimate business, although their business model is reminiscent of the people who jumped on the PPI bandwagon, or place ads asking "Had an accident that wasn't your fault?' A copyright owner is perfectly entitled in law to recover what ever he or she has lost in licence fees through infringing use of their work, but usually the amounts claimed by PicRights bear little resemblance to the fair market rate because if they did there would be nothing in it for PicRights. They rely on people who may have infringed their clients' copyright not knowing how the law works, and who are scared into paying up quickly to make the problem go away. While ignoring them is an option, it's not one I would advise because it could result in a default judgment against you at some later stage because you failed to notice that they had commenced legal proceedings and so missed the opportunity to have your say in court.

If you consider that you have indeed used this image without permission, then the right thing to do is negotiate a settlement which is fair to both parties, ie you and the photographer/Reuters. You need have little concern about PicRights' ability to make something out the settlement - that's a matter between the copyright owner and PicRights.

You didn't explain exactly in what context you used this image, but if it was to illustrate the fact that the athlete was a satisfied client of yours (as I suspect was the case) then arguably this would be editorial use, since whatever text accompanied the image would have been factual reporting of your business. In other words, the fact that Mr Runner Bean was your client may be taken as an endorsement of your services, but the purpose of the picture was to remind visitors to your site who Mr Bean is. This is exactly what editorial use means: the conveying of useful information much as a newspaper might use a picture of Mr Bean alongside the piece, when reporting that Mr Bean had recently undergone surgery to repair some torn ligaments. If you feel this accurately describes how the image was used, then any settlement should be based on the editorial rate set by Reuters, unless of course you can find the same image is available through another picture agency* at a lower rate than the £101 offered by Reuters.

Unfortunately I don't think your friendship with the athlete will be of any use. He may or may not have agreed to having his picture taken, and he may possibly have been asked to sign a release form, but this is not strictly necessary under UK law unless the image was taken under circumstances where he had a reasonable expectation of privacy. And in any case he would have no share of any copyright which would belong exclusively to the photographer if he was a freelance, or to the photographer's employer if he was a staff photographer, say working for Reuters. At best, if the photographer was a freelance, and the athlete knew him, he might put in a word with the photographer to let you use the photo as a favour to the athlete. However since he probably won't be on friendly enough terms with the photographer, even assuming he does know him, this probably won't work.

So assuming that the £101 rate is the one you would have paid had you obtained a licence at the appropriate time, this should form the basis of your counter-offer. I usually suggest it helps to add around 10% to the fee as an acknowledgement of the admin costs involved for the copyright owner (not PicRights) in chasing you up over the alleged infringement. I cannot stress strongly enough that the £750 fee being demanded is intended to enrich PicRights - something you are in no way liable for, even if you are prepared to accept that you used the image without first obtaining permission, in the form of a licence. No court would accept that kind of amount as damages unless it could be conclusively proved that this was the genuine market rate for a licence of the type you need.

If you haven't already read some of the other posts concerning PicRights and KodakOne (who operate in a similar way), take a look because you may spot some other general advice about how make a counter-offer and how to deal with these claims management companies which I haven't mentioned here.

As you are in a regulated profession, check to see if your professional liability insurance covers you for claims of this sort or offers a gateway to free legal advice.


*You can do this by using the central search facility on the BAPLA website, or doing a reverse image search on Google Image or TinEye etc.
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scamp210
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Re: PicRights Solicitor Letter Demanding Fee For Alleged Image Use

Post by scamp210 »

AndyJ

Thank you so much for that detailed response.

You are right- the picture was used above a quote/testimonial from the athlete about my work with him- so that should be editorial as you mentioned?

I will look to see if I can find any other versions of the pictures in case there are cheaper options available. Would I be best to call Reuters to get a quote for using it for a year or would the automatic website quote of 101 cover that- (it doesn’t specify I time period you see)

I will also contact legal advice through my governing body so that’s very useful advice thank you. A big relief to think I shouldn’t have to go forking out £750 to these guys!!
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Re: PicRights Solicitor Letter Demanding Fee For Alleged Image Use

Post by AndyJ »

Hi scamp,

As you are thinking of getting legal advice on this it would be best if I don't comment on the specifics of how you should proceed - that's a job for your legal adviser. However I would suggest not contacting Reuters for a quote at this stage, although it might be sensible to get clarification over what time period the £101 editorial licence actually covers - this should be available in their terms and conditions. My assumption is that it would be for 12 months as a minimum. I seem to recall from an earlier question elsewhere, that the Reuters site is not particularly helpful unless you register with them first.
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Re: PicRights Solicitor Letter Demanding Fee For Alleged Image Use

Post by scamp210 »

Hi Andy J

Apologies but i am back again. I did get a phonecall for free legal advice but im afraid the person i spoke to sounded like they had never dealt with this kind of issue - i dont know if perhaps copyright want this persons area. She mentioned i could be liable for all court costs and i could possibly try and negotiate... so all in all not much help unfortunately.

Therefore i would be grateful if you would have any pointers on how to proceed... so far based on your advice and other posts (and i will try to read more) - i am thinking of replying within the 14 day period, stating the current cost of what reuters are asking for the photo in question - (101) - and perhaps adding on 20% or so for inconvenience?

You have mentioned in other post that its very important to sound like i know what im talking about though to make them less confident of scaring me - so any tips or advice on how best to explain my position and what i should really be paying would be really appreciated.

Thanks and appreciate your time.
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Re: PicRights Solicitor Letter Demanding Fee For Alleged Image Use

Post by AndyJ »

Hi again scamp210,

I'm sorry that your consultation with the solicitor was not as useful as it might have been. Unfortunately intellectual property law is something of a niche specialisation and so a generalist solicitor won't always have the detailed knowledge required to advise on the matter other than in the broadest terms. Thus your solicitor appears to be unaware that the small claims track of the Intellectual Property Enterprise Court (IPEC) which is where a claim like this one would be heard, has its own set of Practice Directions and the default rule is that the losing party does not have to pay the other side's legal costs. The only additional costs for which the losing party becomes liable are the claim fee and the hearing fee (court costs) and the travel costs/loss of earnings for the day that the winning party has incurred to attend court. However at present hearings are being conducted remotely or on paper, and so the latter costs will be much less or non-existent.

Put simply these claims management companies such as PicRights rely on the people they target not having a good grasp of copyright law or how the civil courts work. The sort of damages that a court would be seeking to award in the case of copyright infringement is the amount the photographer has lost by not having obtained a licence fee in the first place. The licence fee is based on the fair market rate. Therefore for the copyright owner to claim a higher amount they would need to convince the court why this was justified. In your case I suspect they might argue that the use was not editorial and thus the higher commercial fee was the one the court should accept. The court would then need to decide which kind of licence was in fact applicable in this case. Therefore when looking to settle this without going to court it is important to impress on PicRights that since the use of the photograph was editorial the lower Reuters figure is the correct one in the circumstances, and that is why it forms the basis of the counter-offer. This is both fair and reasonable because you know that the court would only award damages based on the current market rate. PicRights may then try to assert that they* would seek additional damages due to some flagrancy on your part. However from what you have told us there is absolutely nothing in the way you have conducted yourself which amounts to flagrancy, so you need not worry about that if it comes up.

Because I am not your solicitor I am limited in the advice I can give you here: I can't advise you on how to conduct your litigation but I can explain the law and the court processes, as well as provide some general advice about how these matters are usually handled. Hopefully with that information you can give the impression that you know your position legally speaking.

* Or more accurately, their client the copyright owner, because PicRights has no standing to bring a claim to court in its own name.
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