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

Post by Akanaten »

Hi everyone.
New to the site, so I hope I’m in the right place for my question?

As I’ve noticed already, Picrights is all over the place, and must admit, till one hour ago, I had never heard of them. Till an email arrived. I thought it was spam till I did some checking.
The picture they say I’m in breech of copyright over, hasn’t been on my web site for over 15 years! I have’nt used my web site or updated it since 2008, and only did a quick check in 2014. That picture is no longer on my site and hasn’t been since before 2008. So how do I stand?
Have they found a previous page from my old web site? I can’t see how though.

I appreciate any help indeed.

Thank you.

Ray
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AndyJ
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Re: PicRights Solicitor Letter Demanding Fee For Alleged Image Use

Post by AndyJ »

Hi Ray,

It will depend on where PicRights found the image. If, for instance, it was on an archived copy of your website, say on the WayBack machine then it is highly probable that they will be time barred from making a claim due the statutory claim period of six years having elapsed. Put in simple terms, this scenario would mean that your alleged infringement ceased more than six years ago, and the only existing evidence today resides in a place for which you are not legally responsible, then you are not liable. Since the claimant failed to bring a claim within the 6 year period set by section 2 of the Limitation Act 1980, he is now barred from doing so. The only way that a late claim would be possible is if you had concealed the original alleged infringement in a way that meant the claimant could only now discover it. Obviously if the alleged infringing image was on your website at certain point in time, it would not have been concealed, and so the claimant cannot avail himself of that exception. He cannot make a late claim just because he wasn't aware of the alleged tort at the time.

The only other scenario which I think may be applicable here is if a copy of the alleged infringing image was recently found still on the server hosting your site, even though you had deleted* the link which caused it to be shown on the website. This is somewhat analogous to deleting a document on your home computer, but a copy of it remains in your trash folder. Such an image would theoretically be discoverable by a third party bot provided that the exact name of and path to the image file was known, which seems to be highly unlikely. And even if this was the correct scenario which led to this claim, I think you would have a reasonably strong defence that you ceased making the image available to the public in 2008 and that any remaining copy of it existed purely on technical grounds, which if that was accepted by a court, would be lawful under section 28A of the Copyright Designs and Patents Act 1988. I am not aware of a court case in which this particular argument has been used successfully, but something similar was at issue in an important case heard by the UK Supreme Court in 2013, known as Public Relations Consultants Association Limited v The Newspaper Licensing Agency Limited where it was held that temporary copies made for technical reasons were not infringing, following a referral to the Court of Justice of the European Union (Case C-360/13). Not only would this scenario seem much less likely, the defence to it is also more doubtful. The reason for my doubt is that the period of limitation (the 6 years) only begins to run from the point at which the alleged harm (the infringement) ends. If the copy of the image is still on the server today, then technically the alleged infringement is still occurring, hence the limitation period has not yet started. You would only be off the hook if a court decided that the fact that the image was not ordinarily accessible by the public meant that the copy was not an infringing one. Section 28A would seem the best reason for such a decision.

I assume that PicRights have not said exactly what evidence they have to support this claim. It seems that the first scenario seems the more likely one, in which case you could effectively ignore the claim on the basis that it is time-barred. However that might be unwise if there is some other basis for their claim of which you (and I) are not aware. It is important that if you do decide to correspond with PicRights, that you do not make any admission about liability. At present they face the formidable task of not only proving that the alleged tort occurred within the last 6 years, but also that you were liable by virtue of not having a legal defence due to a fair dealing exception. You should not say anything which assists them! Use terms like 'the alleged infringement of copyright in the image on my website' or 'my alleged infringing use of the image' etc.

Good luck, and please let us know how you get on.

* Without getting too technical, when a web crawler or bot looks at a website, it examines the HTML code for instances of the type of content it is looking for. So for instance if the code for your website once contained a link to fetch the image from a particular storage location, and when you updated the website, that code remained on the server, but de-activated, it is perhaps possible that this would be sufficient for a bot to discover the old image.
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
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altruistic_ranger
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Re: PicRights Solicitor Letter Demanding Fee For Alleged Image Use

Post by altruistic_ranger »

PicRights are not solicitors. They are a predatory rights management agency (see 'copyright trolls') who operate through fear and intimidation. They will need to prove what material damage their 'client' has suffered. Invite them to file a claim against you through the UK's Intellectual Property Enterprise Court. The Small Claims track should cost you about £25 to defend. If it comes to it, go tell your story. UK Courts take a very dim view of this type of trawling.

Operating in good faith would mean that you might be served with a takedown notice assuming it was still live, and that would be that. Good faith is a key principle here.

Many infractions I've seen discussed here are so marginal as to be tantamount to cyber bullying. Action Fraud UK describes fraud as follows: "Fraud is when trickery is used to gain a dishonest advantage, which is often financial, over another person." If the demands seem disproportionate or harassing, please report them to Action Fraud.
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Re: PicRights Solicitor Letter Demanding Fee For Alleged Image Use

Post by MelanieJ »

Hi,
I'm a new user with the same issue as many in this thread.

I have a business website and am very careful about the images used, making sure they are licensed (I have subscriptions to do this).

I recently received an email from PicRights saying we had used a Reuters image without permission. I checked and found the image they referred to and immediately removed it completely from our website.

The image was included in a brochure from 1 of our suppliers for a product that we sell for them. The same image was also used in a video (made by our supplier also). We published the images from the brochure and the video, in good faith to our website.

Now I realise that was a stupid thing to do as the supplier is in China and in all probability didn't own the rights. Lesson learned!

My question is this - I explained to PicRights how this had occurred and over a few emails offered to pay £100 (they wanted £435). We are a small family company, not a large corporate and we don't have money to spare to pay this.

I agree that all images should be licenced and expect to pay something.

The image was used as an example of what the machine we were offering could produce.

From your experience, am I likely to have to pay more than I have offered and would a court accept that we used this image without licence unintentionally and had offered to pay for the use?

I'm more than a little worried by their threats and would appreciate any advice.

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

Post by AndyJ »

Hi Mel,

Using an image (ie copying it) without permission is a matter of strict liability where of primary infringement is alleged. This means that unintentional or innocent use does not absolve you from liability. However that liability only extends to putting the copyright owner in the position he/she would have been in if the correct licence had been obtained in the first place. In other words you are only liable for the normal market value of the licence. If Reuters' standard licence for this image was £435 (which I very doubt it was) then that is what you would be liable for under a civil claim. However if you can find the same image being offered at a much lower rate on another picture agency site as seems to be common with Reuters' images, then that rate becomes the market rate, on the basis that if you had sought a licence you would naturally have gone for the cheaper option.

Sadly PicRights don't recognise this approach as it would mean that they can't make any money from such a scheme and still be able to reimburse their clients. Hence they will hold out for the full amount of their demand for as long as possible, until such time as they see it is no longer worth pursuing the claim. Yes, there will be plenty of threats along the way, but provided that you understand your rights legally if this went to court, you may be able to get them to come down to your offer.

It is arguable that the type of infringement involved here is actually so-called secondary infringement, namely possessing a copyright work in the course of business (see section 23 of the Copyright Designs and Patents Act 1988) because you were effectively provided with the image by your suppliers, and since you had no reason to suspect that it was an infringing image you would not be liable for any damages. However I think you would need to obtain legal advice before pursuing that type of defence in court.
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Re: PicRights Solicitor Letter Demanding Fee For Alleged Image Use

Post by TWLEthiopia »

Hi everyone,

Very similar situation to everyone else here. We are a charity and PicRights have contacted about a photo that was used on one of our blogs in 2012. I can see the pattern of advice here - thank you very much Andyj - which is already very helpful.

What I'm wondering is how I find out what the photograph is actually worth, in order to start the negotiation process. It is apparently an Associated Press photo. I have tried a google reverse image search but online 3 links came up, one of which was our blog (the photo has now been removed), the other two are a local.gov.uk pdf which I can't see the photo in and lawinsider.com which isn't responding.

Where can I go to find the original photo and it's copyright principles? Or can I throw this back to PicRights to ask them to prove to me that it's an Associated Press photo?

Thanks in advance! Caroline
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AndyJ
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Re: PicRights Solicitor Letter Demanding Fee For Alleged Image Use

Post by AndyJ »

Hi Caroline,

If you can't find the image on the AP site or an associated stock agency like Alamy, Getty or Shutterstock*, try looking for another similar image of the same subject. This may give you a guide as to the likely market value. However, if this started out life as a news picture, it may have initially had an inflated value when it first appeared (due to its news worthiness or topicality) but that will now have evaporated after10 years. By all means quiz PicRights on the provenance of the image but I doubt if that will help you much with establishing the current market value for a licence.


*You can find a longer list of picture agencies here
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TWLEthiopia
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Re: PicRights Solicitor Letter Demanding Fee For Alleged Image Use

Post by TWLEthiopia »

Hi everyone, just to follow up on this, in case it is helpful to others - we went back to Picrights, firstly for evidence that the photo was an Associated Press photo, which they did (a signed letter from the AP's VP of Global Business Development). Then we went back and asked them to tell us what "Associated Press licence fee and running licence cost for this photo" was. At that point they came back and said they'd made an error in the fee calculation. Suddenly the fee they were asking for went down from £553 to £124.

Their wording was "After further review of your case, I can see the valuation is incorrect, your case was valued as NPO/Marketing/Promotional Collateral - Website’ licence. Up to 5-year use – for your usage would have cost £ 553. I have corrected the valuation, please see below for valuation explanation. For your use, you should have purchased ‘NPO/Digital and online – Editorial Website’ licence. Up to 5-year use – for your usage would have cost £ 124. After careful review, The Associated Press (AP) is willing to settle the matter for £ 124. This offer is based on the licencing fee for the use of the imagery on your website."

So I would reccomend to anyone that can't find the fee for the photo themselves to throw it back to Picrights. Good luck!
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Re: PicRights Solicitor Letter Demanding Fee For Alleged Image Use

Post by AndyJ »

Hi Caroline,

Thanks for coming back to the forum with the update. And well done with getting the amount reduced.
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