Pixsy demanding I pay a fee for unauthorised use of an image. Urgently need help.

[wikicomm679]

please provide update. did you go to court? Did you pay anything?

[Terrar56]

He blocked them so he wouldn't know if they have continued to contact him or not. He has not paid anything or gone to court. Pixsy are a bunch of chancers, they won't take you to court or even engage with a lawyer for such a small amount. And in the unlikely event they did engage with a lawyer (no reputable lawyer would go near a pixsy case), they wont be able to validate the stupid amount theyre asking for when the image has no paid license. All pixsy can do is threaten you - say they will escalate it to their legal department in the hopes that you'll cave. Life is too short and these guys are a bunch of time wasters. Block and delete them.

Since my last email I never heard from them again.

[stevedavies]

I've lifted the block temporarily as of today to see if they are contacting me.

This is also the thing. If it was to go to court, it would be from a partner lawyer so by blocking Pixsy, you're not blocking any potential court proceedings. Remember, their "legal team" has no legal powers at all. An actual lawyer has to contact you as the client has requested it.

It's unlikely and the idea of a court ever agreeing to someone getting sued over a free image is so utterly inconceivable, I'm barely able to utter the words.

I'll keep the forum aware of any updates. I may let it stay unblocked for a month if I hear nothing next week.

[TheGeezer]

Hey everyone - checking in from the USA here. Though I understand this is primary a UK forum, I thought some things I am dealing with might be of service to others here, so I'm throwing another datapoint in to help anyone struggling with a Pixsy issue, and to anyone from the USA that might find this via search as I did.

Mods - my sincere apologies if, as a UK forum, you find this off topic or otherwise irrelevant.

Several months ago my wife received a note from Pixsy largely akin to what stevedavies (alleged CC2.0 violation, Flickr-sourced, very limited usage etc.) has been dealing with, with almost the exact same progression, however they asked for several thousand USD as their "licensing fee"!!! Needless to say, my wife was pretty upset by this. I am, by trade, a professional photographer with numerous publication credits and awards on my resume, so I'm familiar with licensing and usage rates, and I knew right away that this was, essentially, extortion, so I offered to take this on for her.

I've been exchanging emails with Pixsy for the better part of 4 months now, most almost identical to the ones that stevedavies has excerpted here. Also, in a former life I was the CEO of a small but successful media company, so I'm familiar with the process from that side as well, and, unfortunately, litigation and numerous legal resources, so I have a bit of a background with US copyright case law, and some access to litigation records that might not be accessible (or known) to the general public.

Here's the thing. *Generally speaking* I'm convinced that Pixsy is a disingenuous, "threaten first" extortionist firm that relies on uninformed victims and scary language. I'll get to that in a second, but for a little more background, my research does show that the *client* they claim to be representing HAS in fact, filed actual suits against alleged infringers in US courts. I also know that the cases I found have apparently settled quickly, so at least in my case, the Pixsy client does sometimes follow through. So that's where we are.

DISCLAIMER: I AM NOT A LAWYER - THIS IS JUST MY OPINION AND IS NOT LEGAL ADVICE. OK - that's out of the way..

Now, back to my issues with Pixsy. As I said, I am a photographer. I understand and respect copyright. I believe that photographers should be compensated fairly. That said, there are laws that govern how this is done in the event that there is a misunderstanding or, in the case I am dealing with, an inadvertent possible goof on attribution. I also believe my wife has a fairly solid "fair use" argument/defense (USA law - https://fairuse.stanford.edu/overview/f ... r-factors/), and, as the image in issue was free under a CCBYSA license, there are no actual damages. This is important because, also per US law in her particular case, any award arising from improper use would generally be (I guess there are always exceptions - as I said, not. a. lawyer. (but I have confirmed with 2)) limited to ACTUAL damages - i.e. the real monetary loss the copyright holder has sustained as a result of any proven infringement and would NOT be eligible for attorney's fees. (This is due in part to the clear fact that the copyright holder registered the US copyright YEARS after her alleged infringement commenced- relevant law here: ( https://www.law.cornell.edu/uscode/text/17/412 )

And here's the thing - Pixsy, if they have even a shred of knowledge, KNOWS THESE THINGS. Yet, month after month, they continue to threaten massive statutory damages and fees despite knowing that a) there's almost no way they can get them, and that in fact they are precluded by law from getting them, and b) that even in the event that my wife were found to have infringed, the actual damages award would be comparatively miniscule.

So that leaves me with the idea that the Pixsy employee doing this is either incomprehensibly silly, or that PIxsy as a company is completely disingenuous and ethically challenged. Pixsy probably thinks we would rather settle for 3K USD than spend 5-10K in an initial response and request for dismissal.

In fact, we would not, and we have decided that we are willing to spend to litigate, as we both find Pixsy's ethics in this case to be abhorrent.

So that's where we are.

Other things -

1) We did offer an amount that would be commensurate with the ACTUAL license fee if this were a commercial image, even though it's free - about 10% of their ask - just to not deal with it. They claim that would somehow devalue their client's FREE image. What it would actually devalue is Pixsy's extortion record.

2) The Pixsy client in question has an unfortunate habit of undercutting their own argument in their own personal blog. They admit in one place that the the Flickr CC licensing terms are hard to understand, and also that they are not happy with Flickr because they (flickr) essentially force users to comply with CC 4.0 standards - meaning they know by pursuing outrageous (or any) payment they are violating the terms they already agreed to via flickr (I believe stevedavies dealt with this above as well). These things may be useful if they actually want to go to court.

3) Pixsy seems unmoved by all of these facts, and seems to delight in sending form responses that do not address any of the issues raised, even though they pertain directly to the actual value of the settlement - sorry - "Licensing fee" they are seeking.

[AndyJ]

Hi TheGeezer and welcome to the forum.

While yes this is primarily a forum dealing with UK copyright law we very much welcome your perpective from the USA.

There are three aspects about US copyright which make your experience different than ours. Firstly if a photographer in the US has registered his images with the Copyright Office prior to starting litigation he can ask for statutory damages (per 17 U.S.C. § 504 of the U.S. Code). The range for these damages is between $750 and $30,000 per work, at the discretion of the court. In addition, a losing defendant can expect to have to pay the claimant's legal fees. Now it is highly unlikely that a photographer who is releasing his images under CC licences is going to incur the cost of registering his work if he doesn't intend to gain financially through conventional licensing. And the point you raise about his actual loss due to an oversight of a term in the CC licennse is a good one.

Secondly, while there is a small claims route in the USA for such claims, with similar procedures to the UK's IPEC, it is entirely voluntary, so a claimant seeking statutory damages is unlikely to opt to use it.

And third, in this particular issue, where the alleged infringement concerns the omission of a credit for the photographer in contravention of the CC license, this could only be argued as a breach of contract, This is because US Copyright law in general does not recognise the moral rights of authors, outside of a very narrow band of works covered by the Visual Artists Rights Act (17 U.S.C. §106A). Specifically the VARA does not apply to photographs in general and is limited to "a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author" (see 17 U.S.C. §101). On that basis I think it is quite likely that a federal court would uphold a motion to dismiss any claim of the type envisaged here.