Picrights

If you are worried about infringement or your work has been copied and you want to take action.
Post Reply
Gmo
New Member
New  Member
Posts: 4
Joined: Wed May 24, 2023 1:31 pm

Picrights

Post by Gmo »

My husband had been contacted by Picrights demanding £740 for two images used on his blog.
He is a writer and offers writing services on his website but no form of e-commerce.
His blog was not for profit and was a series of satires unrelated to his work. He wrote them to make people laugh and had no intention of monetising them.
He had legal advice and was told to offer the Alamy price for the images which was approx £60.
Picrights are saying that his blog is a commercial blog and are threatening court action if he doesn’t pay the £740.
What constitutes a commercial blog? And how should he proceed?
Thank you.
User avatar
AndyJ
Oracle
Oracle
Posts: 2912
Joined: Fri Jan 29, 2010 12:43 am

Re: Picrights

Post by AndyJ »

Hi and welcome.

Whether or not his website is commercial is only relevant if the licence from Alamy to use the image was dependent on the type of use. If you are satisfied that the licence you found - and which formed the basis of your counter-offer - was suitable, then Alamy would have to prove that the wrong licence was being used as the yardstick. PicRights' opinion is really not material. 'Commercial' has no legal meaning per se in this context beyond the normal everyday use of the word, that is to say in the course of the routine exchange of goods or services for money. If, as you indicate, his blog does not offer either his writing skills or the product of those skills for money, I don't see how they can claim it is commercail in nature. Even if the blog was financed through advertising, it would need to be proved that the use of the image directly related to the value of the advertising. In other words the test would be, if the images were removed would the value of the advertising reduce? Since you didn't mention advertising I assume that this is not relevant in this case.

As an aside, you nention that your husband's writing is satire. If the images concerned were the object of the satire or substantially formed part of the actual expression of the satire, then he may have a defence under section 30A of the Copyright Designs and Patents Act:
30A Caricature, parody or pastiche

(1) Fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work.

(2) To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this section, would not infringe copyright, that term is unenforceable.
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
Gmo
New Member
New  Member
Posts: 4
Joined: Wed May 24, 2023 1:31 pm

Re: Picrights

Post by Gmo »

Hi Andy,
Thank you so much. This is incredibly helpful.
The images in question were used in spoof celebrity blogs written by my husband. They were not used to advertise his writing in any way but written to entertain. The pictures used were used to illustrate the person that my husband was lampooning.
The images were apparently Reuters images but can be found on Alamy hence offering Picrights the Alamy price.
Picrights have said his website and blog are both commercial and have rejected the Alamy photos as being for editorial use.
The same images are on Reuters and if used on digital blogs they cost £101.50 plus vat.
Picrights are saying as they consider the blog to be commercial they will not reduce the cost of £740 for commercial images.
I don’t know how they can say the blog was commercial. My husband does advertise his writing services on his website but doesn’t take payments on his website. The blog is attached to his website but was very much not for profit.
Understandably we are both very stressed as Picrights are being very aggressive.
We are both self employed and don’t have £740 to give to Picrights.
The blog has since been removed in its entirety so doesn't exist at all anymore.
User avatar
AndyJ
Oracle
Oracle
Posts: 2912
Joined: Fri Jan 29, 2010 12:43 am

Re: Picrights

Post by AndyJ »

Hi gmo,

If the images were of the celebrities being lampooned then that is most definitely editorial use. It probably doesn't come within the parody/caricature exception that I linked to previously but it does mean that if PicRights* carry out their threat of legal action, which I strongly believe is unlikely, then they will have to convince a court that they are right about the commercial use claim. Assuming Alamy's editorial use licence is in the tens of pounds per image, you are right to base your counter offer on those figures.

The reason that PicRights put up a hard fight is that if the copyright owner only gets back in damages what he is entitled to based on the market rate for the appropriate licence, PicRights don't make enough to justify their efforts. Their whole rather unsavoury business model is based on the fear and ignorance of the law on the part of their victims.

* In fact PicRights has no legal right to bring a claim in court; it has to be the copyright owner or the exclusive licensee (see Section 96.)
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
Gmo
New Member
New  Member
Posts: 4
Joined: Wed May 24, 2023 1:31 pm

Re: Picrights

Post by Gmo »

Hi Andy,
Thank you so much.
They have said that if they don’t get the full £740 they will forward it to their legal team.
They are adamant that the blog is commercial.
Do we just stand firm and not respond further?
They have the offer of the Alamy pricing that my husband emailed to them.
Best,
Gail
Gmo
New Member
New  Member
Posts: 4
Joined: Wed May 24, 2023 1:31 pm

Re: Picrights

Post by Gmo »

Picrights have just said they are forwarding the case to their legal team.
Should we respond to them?
User avatar
AndyJ
Oracle
Oracle
Posts: 2912
Joined: Fri Jan 29, 2010 12:43 am

Re: Picrights

Post by AndyJ »

Hi Gail,

Now that PicRights have said that they will pass the claim to their lawyers the claim has formally started the process of litigation. For legal reasons (because I am not your solicitor or legal advisor) we cannot provide any specific advice on how you conduct your litigation from here on. This is as much to protect you as it is to abide by the law.

That said, the next step should be that their solicitiors will contact you, and so you can respond to them in much the same way as you did with PicRights. In case the matter goes to court at some later stage, it is important that you continue to engage in the pre-action stages. This will demonstrate that you are not being obstructive or behaving unreasonably. However, you are perfectly entitled to stick to your guns. You should read the Government's guidance notes on the Small Claims Track of the Intellectual Property Enterprise Court (IPEC), as knowing how the court operates helps when you have to deal with the solicitors appointed by PicRights, since ultimately that is what they will be threatening you with. But to be honest involving their legal team only makes sense if they can get a quick settlement for the amount first demanded, otherwise their legal costs will soon outpace even the frankly unreasonable sum of £740, and those legal costs are not recoveable from your husband if the matter goes to court.

You said in your opening posting that your husband had obtained some legal advice at an early stage. You may wish to consider if you need further advice from a solicitor but this is by no means essential since the IPEC small claims system (assuming it goes that far) is designed to be used without professional legal assistance. Obviously there is no point in you paying large legal fees which might well exceed the amount of the PicRights claim. However you husband may be able to get a free 20 minute consultation. If that is what you decide, please make sure you consult a solicitor who has experience in intellectual property law - you can find someone suitable through the Law Society's website.

Good luck.
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
Post Reply