PicRights (Again), Blogs and Digital Archiving

[PixlBunny]

Dear Copyrights Aid,
I hope you might be able to help with yet another PicRights issue:
Two weeks ago we too received an email from Picrights claiming breach of copyright licensing regarding an image from Reuters on our blog. The blog article was published in late 2020 for educational purposes only.

We have since found the image on Reuters' picture archive valued at today’s price of USD 175.00 for “a single website, one language, one year + 5 years digital archiving”, whereas Picrights demanded a price of close to £500.00. They are likely trying to justify their pricing on the time duration the image has been online, however, it says “one year + 5 YEARS DIGITAL ARCHIVING”. Please would you be able to clarify if a blog article – in legal terms – can be included under the many types of “digital archiving”? We only found one website that listed “blog” as part of what is defined as such: https://www.lisedunetwork.com/digital-a ... s-meaning/. It would give us, however, peace of mind knowing the legalities behind blogs and Digital Archives are argued in our favour (especially since the article is listed under “older blog posts” and had virtually no traffic since publishing in 2020), so that we can show PicRights that we know what they demand could constitute unlawful extortion and that the courts would only award the actual license value to the claimant.


As a few sidenotes:
• We also found a similar (not the same) image on Alamy, priced at USD 20.00, however, I feel this may unfortunately be immaterial to our case.
• We also think it to be immaterial in our case that the image we used was lower resolution to the “for-print-purpose” image that Reuters are selling because we are unable to show the exact same copy of the image where the file date would match the date of when the blog article was published. As instructed by PicRights we took the image down, so we no longer can prove that the image we have in archive is indeed the image previously displayed in our blog and copied from another website. So, we are prepared to pay the dues as valued at Reuters price, however, not their quoted fee.

Thank you very much in advance.

[AndyJ]

Hi PixlBunny, and welcome to the forum.

I am not aware of any specific court case in which a definition of 'digital archive' has been either advanced or approved by a court. Therefore I think that the commonsense interpretation of the words would prevail, that is to say something which has been preserved in digital format (whether on or offline). I don't think it would automatically apply to older blog posts, but equally it doesn't exclude them. Unfortunately, in this context the words probably have a specific meaning which is defined somewhere within Reuters' licence terms and conditions. Even more unfortunately these terms and conditions do not appear to be available on their website. Since Reuters' main market is the publishing industry, it could mean publication on a newspaper or magazine website for up to a year and thereafter held in their archive which is not necessarily directly available to the public online without, for instance, signing up separately (and possibly paying an additional fee) to access to the newspaper's archive.

Yes, you are right that finding a similar image on Alamy doesn't help you. That would only be of assistance in indicating the fair markert price for a licence if the actual image was not available anywhere, and where using a comparitor is the next best option.

The issue over a lower resolution would only be relevant if you could show that another picture agency was making the lower resolution image available at a lower fee. Unless the Reuters' site offers several quality options (at different prices) I don't see this factor assisting you. It may just indicate that the site where you acquired the image originally had already reduced the quality of the image for some reason, perhaps to ensure the image loaded quickly.

Just a final point. I don't think you would be justified in calling this claim unlawful extortion. It is neither unlawful nor does it meet the legal definition of extortion (see section 21 of the Theft Act 1968 and section 29 of the Larceny Act 1916). It may be unreasonable, because in a civil claim, you would only be liable for damages equal to the true loss sustained by the copyright owner due to your failure to obtain a licence at the relevant time. Clearly the amount demanded by Picrights includes an element of profit for PicRights which would be inadmissible when arriving at the correct figure for damages in court. If the matter went to court, and you lost, you would also be liable for the court fees and certain expenditure incurred by the claimant (travel and loss of earnings) to attend the hearing. So while the level of damages might be £175 (for example only), you might also have to pay a similar amount to cover the fees and the claimant's expenses. As you can appreciate this would begin to approach the amount being demanded by PicRights. However there is no certainty that the matter would ever reach court because the claimant would only stand to gain the damages, as he would already have paid out on the other items. On that basis, a reasonable claimant is more likely to agree to a counter-offer to settle which is based on the actual assessed damages figure.

[PixlBunny]

Hi AndyJ,

thank you for the time responding to us and apologies for the delayed response. I very much appreciate the clarification on the matter; it's a shame that the lack of legal footing on whether or not a blog can be included in the wider definition of digital archiving means this could go either way.

Regarding your last sentence "On that basis, a reasonable claimant is more likely to agree to a counter-offer to settle which is based on the actual assessed damages figure.":

I have read some of the posts on here that other people approached PicRights making a counter-offer based on the assessed value of damages, and that PicRights responded with an even higher figure (including threats of taking up legal measures). As such, they do not strike me as "reasonable claimants", and we might have to concede and pay the full asking price. However, we are also very concerned that they might try to follow up with further demands. Unfortunately, there is nothing in their emails that would instil any confidence in me that these people aren't going to come back, because we did not "put up a fight". Is there any way to prevent this from happening, other than just putting in a letter a statement that us paying the full amount concludes any dealings with PicRights and that we will not respond to any further correspondences from them?

[AndyJ]

Hi again PixBunny,

If the matter went to court (which is highly unlikely) the claimant who made that choice would be the copyright owner and not PicRights. PicRights have no standing to bring a claim to court. That is what I meant about a reasonable claimant.

As for the current situation, if you decided to settle the matter by paying the full amount being demanded by PicRights, then that would be the end of their right to make a demand over this particular alleged infringement. However by demonstrating that you were a willing victim they might well check to see if there were any other infringing images on your blog that they could chase your for. So it would be sensible to make sure all the remaining content on the blog is properly licensed, if you haven't already done so.

[PixlBunny]

Dear AndyJ,

thank you again so much, especially since you responded on a public holiday!
You have certainly given us some food for thought on what our next step should be. Thank you!

[AndyJ]

You are welcome. The British Mayday Holiday is not until Monday 6th May.

[PixlBunny]

Dear AndyJ,

Again thank you very much for all the advise you have given me.

After some deliberation following your guidance and also an exchange with a relative who is a retired barrister we decided to pay only about half of what PicRights demanded and put together a letter to them with a number of reasons as to why we think this is more than a fair amount to the copyrights holders.

Our relative also suggested that we should add to our letter that the payment is made subject to the provisions of Part 36 of the Civil Procedure Rules PART 36 - OFFERS TO SETTLE - Civil Procedure Rules (justice.gov.uk). However, my gut feeling is that PicRights could see this as us forcing their hand. To note, our relative advised us that he is not an expert in copyright law, that he only could give us general guidance and is in no way intending to undermine your expertise. Therefore, we would very much appreciate your take on his suggestion.

Thank you.

[AndyJ]

Hi PixBunny,

I agree that including the reference to Part 36 does no harm and might make PicRights think about settling now. However, in fact, because a claim of this sort would be allocated to the small claims track of the IPEC, Part 36 does not apply (see Part 27 (rule 27.2 (g)).

[PixlBunny]

Hi AndyJ,

brilliant - thank you very much for al your advice.

Hopefully, we will see the end of this soon.