Pixsy alleged image copyright infringement

[howdidwegethere74]

Hi Andy
Hope you can help - I have looked through your other articles but my issue differs slightly.
Pixsy have been sending me demands since just before Christmas (bless) saying I have used an image without a license. I did use an image, on a blog when I started my website (no visitors) as I thought and attributed (as a few others did and had also attributed) to who I believed to be the owner of the image. Years later I have been contacted and it seems that was not correct. I apologised, removed the image immediately but they want a large amount of money now as a retrospect licence. I am a tiny one person band biz that i run out of my garden and can’t afford this large amount for a genuine error. I do realise photographers need to protect their work, but this seems a really dodgy business model and I can’t seem to deal with the agency client direct (surprise). I have had my own photographs used without permission and I asked for it to be removed - end of.

I have responded with a counter offer of half the amount showing very similar images can be purchased for way less than even half. The only difference being their client is not a stock photographer but more of an art editorial one.

They are threatening court imminently now (after not contacting for the last few months they’re back on it).

Any advice would be great appreciated. If it does go to court in the UK would I be responsible for lots more in damages etc as they suggest?

Thanks!!

[AndyJ]

Hi,

Welcome to the forum. When you say that Pixsy contacted you 'years later', how many years was the image available on your website? Obviously your counter offer needs to take into account the amount of time the image was being displayed, if for instance a normal licence would have had to be renewed annually etc.

You don't say if you have discovered the actual market rate for a licence. You mention that the photographer specialises in art editorial work, so I assume his/her work is available to licence. Ideally, you need to try establish what the standard licence fee is. As you will have seen from the other threads here, Pixsy are free to make up any figure they like for their demand, but if they (or more accurately, the photographer) take you to court, you would only be liable for damages which reflected to the market value of the licence assuming that you had obtained one at the start.

The matter of the misattribution could lead to a separate claim under sections 77-79 of the Copyright Designs and Patents Act 1988, but since you had no means of knowing that the photographer had asserted his/her right for a credit, and in any case you mistakenly credited the wrong person, thus demonstrating goodwill, I don't think it would be too difficult to rebut that part of the claim.

On top of any damages which were awarded, you would be liable for the court fees paid by the claimant (around £105-150 based on the amount of the claim) but not his legal or administrative costs. I would be surprised if the whole amount you would be liable for, if the matter went to court, was much more than £250-300, assuming that you defended yourself. If that were to happen, all that the photographer would actually get would be the damages element, since he would have already had to pay the court fees upfront. Once the damages were split between the photographer, his agent and Pixsy, this means the whole process is unlikely to be economic. Just bear this in mind when Pixsy try to scare you by threatening the court route: they have more to lose than you do if that happens.

You can read all about how claims on the Intellectual Property Enterprise Court Small Claims Track work here: https://assets.publishing.service.gov.u ... y-2018.pdf

[howdidwegethere74]

Thanks so much Andy So helpful! I can’t find out the licence price - it’s ‘on application’ so insert your own figure. They say it was previously bought (2 examples) on a simple spreadsheet for 1000 dollars let’s say for rights managed single use on a website.

It’s been there (buried where only my mother had previously viewed it) for 5 years.

Any more thoughts greatly appreciated.

[howdidwegethere74]

Andy I just thought to add that the image is either owned or photographer is represented by another large agency who seem pretty happy in court (US) from research, although probably over bigger issues than this.

[AndyJ]

Hi again,

Without a comparator it's hard to say what your counter offer should be. The best I can suggest is to find a similar image which would have done just as well on your website, and see what the fee is for that. Not a great substitute method, but the argument you would then present in court would be that, hypothetically, if you had been been shopping for a particular image at the time, you would have chosen the one at £30 not the one at $1000.

Don't worry about the fact that the agency may be prone to litigation in the USA. The American legal system is utterly different, in that infringement can lead to statutory damages in the thousands of dollars and the winning party will usually get their legal expenses paid by the losing party. None of that happens on the small claims track of the UK's Intellectual Property Enterprise Court which deals with copyright claims valued at under £10,000.

I'm afraid that the fact that no-one has visited your site doesn't really help mitigate the infringement. The liability arises from the fact that the image was copied without authorisation (section 17 CDPA). The second part of a claim of infringement is usually that the image was being made available to the public (section 20 (2)(b) CDPA); the fact that the public didn't take advantage of this availability is not relevant.

Good luck

[howdidwegethere74]

Thanks so much Andy! Thank goodness there’s still some good humans in the world