Have read over some of previous posts, but we have slight twist.
Unsigned music artist sends us an image to use to illustrate single he was releasing in 2016. Image is a collage of about a dozen photos, so the 'offending' image is already very small within the small space the whole image appeared. I'd say artist (although normally, the label) should have clearance for promotional shots. We've never had this issue in our 20 years of online only publishing. Been asked for £79. Image was theoretically available to view since 2016, but I sincerely doubt anyone saw it a week after we featured. I feel artist should pay. PR says it "cannot pursue or initiate contact with a third party", but we can ask the artist to pay. I doubt they would.
With thanks
PicRights again
Re: PicRights again
Hi and welcome.
Have you actually asked the artist if he/she was licensed to use the image? Chances are that they weren't, but if they were, it may just be the the licence allowed them to use the image for self-promotional purposes, and so your use might well be covered. Don't trust PicRights to have a clue about that sort of issue. They are lazy and greedy.
Technically you could argue that you are only liable for secondary infringement (section 23 Copyright Designs and Patents Act 1988) because you acted on the good faith belief that you had been authorised to use the image by the artist (see second part of section 16(2) CPDA). Unfortunately this would only be an argument you could run in court, which I'm guessing you want to avoid, and it's certainly too sophisticated an argument for the staff at PicRights who have zero legal knowledge. Hence their unwillingness to go after a third party who is the obvious source of the infringement.
You should still try and determine the true cost of a licence for the particular image, which is almost certainly going to be less than the £79 being asked for by PicRights. Any damages should be based on the loss suffered by the copyright owner because of not selling the correct licence in 2016, therefore the true market value of a licence would be a suitable amount to use to make a counter-offer.
Have you actually asked the artist if he/she was licensed to use the image? Chances are that they weren't, but if they were, it may just be the the licence allowed them to use the image for self-promotional purposes, and so your use might well be covered. Don't trust PicRights to have a clue about that sort of issue. They are lazy and greedy.
Technically you could argue that you are only liable for secondary infringement (section 23 Copyright Designs and Patents Act 1988) because you acted on the good faith belief that you had been authorised to use the image by the artist (see second part of section 16(2) CPDA). Unfortunately this would only be an argument you could run in court, which I'm guessing you want to avoid, and it's certainly too sophisticated an argument for the staff at PicRights who have zero legal knowledge. Hence their unwillingness to go after a third party who is the obvious source of the infringement.
You should still try and determine the true cost of a licence for the particular image, which is almost certainly going to be less than the £79 being asked for by PicRights. Any damages should be based on the loss suffered by the copyright owner because of not selling the correct licence in 2016, therefore the true market value of a licence would be a suitable amount to use to make a counter-offer.
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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justaninnocentman
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Re: PicRights again
Thank you, much appreciated