I got an email a few months ago from a company claiming a clipart image I used as part of a logo violated the copyright of another. I deleted all instances of the image after getting the communication. A few months later I got another email from a law firm with the usual threats. I always went to sites that had no restrictions on images to use online (this one was obtained from a clipart site that made no mention that images were restricted in their use). When I go to archive.org I can see the image from ~2016 or so with no mention of restrictions on use, so I have evidence that this wasn't willful. Today the URL for the image still exists on the site, but the image itself was replaced with a different but similar image in the same category. Both the image I used and the author's image have no copyright symbol or other identifying mark.
The evidence report shows the image, author's info, date of creation, and part of a USCO registration number. From that information I was able to find that the image was copyrighted in 2020 (my use of it likely began in 2016), the image was claimed to have been created ~10 years earlier.
The letter makes all sorts of threats, including that I could be responsible for legal fees and statutory damages (I am in the US, the author is not), but it is my understanding that because the author waited so long to copyright the clipart image, and because my infringement occured before the image was registered, that they would actually have to take me to court, and would have to pay their own legal fees now (I imagine this is less attractive to the law firm if I'm not paying). Additionally, they are no longer entitled to statutory damages, but rather actual lost revenue (which is likely none, or the fee for licensing a similar image), and/or a share of the profits I gained from the sale of using the image (which are none - I created this as a hobby, but they likely think I'm a business).
I am guessing at this point all of this is a form letter generated by a computer, but am I better off continuing to ignore all of this, or should I respond back with this information?
Pixsy escalated to law firm question
Pixsy escalated to law firm question
Last edited by tomkl on Tue Oct 22, 2024 10:23 pm, edited 1 time in total.
Re: Pixsy escalated to law firm question
Hi tomkl and welcome to the forum.
I think the first thing I need to say is that an author doesn't need to put a copyright notice on his work or indicate in any other way that copyright applies to his/her work. Copyright comes about automatically when the work is created, assuming that it is sufficiently original and not itself copied from elsewhere. US law used to (prior to 1976) require a copyright notice but this was discarded nearly 50 years ago.
Therefore you need to be particularly careful when copying an image (or any other copyright work) which you find on the internet. If you found the image on a genuine clip art site (and can prove this) and that site gave every impression that the images were free to use, then you may be able to rely on an implied licence. It would certainly be evidence of a lack of willfulness.
The detail that you have included about when the image was registered with the USCO and when you first found it is interesting. No author is required to register their work just to obtain copyright (this is an international rule derived from the Berne Convention which the USA joined in 1988). However in order to file a claim in a US federal court, the work needs to have been registered (see section 411 of the Copyright Act 1976). Registration is also necessary to be eligible for statutory damages. The fact that a person outside the USA chose to do this so long after the image was first made available makes me suspicious about whether this was a valid registration or if it was done purely to set a trap for the unwary. There is nothing to stop anyone claiming to be the author of a work and filing the registration for a work they didn't create themselves, apart from the threat of prosecution for making a false statutory declaration. The USCO don't verify the validity of the registrations they receive.
The fact that Pixsy is pursuing the claim on behalf of the so-called copyright owner neither supports nor detracts from the genuineness of the copyright claim, but it does raise the possibility that this is just a case of speculative invoicing which can be a real money-maker in the USA because of the statutory damages. On balance though I think you would be advised to speak to an attorney in your state about your next step, because there may be others factors which need to be considered, and I am not an expert on US law. As you are probably aware the level of statutory damages can range from $750 upto $30,000 per instance of infringement. However if you are able to show, as I think you can, that the infringement was inadvertent and not willful, any damages would be at the lower end of the scale. However this could still be a significant amount.
I think the first thing I need to say is that an author doesn't need to put a copyright notice on his work or indicate in any other way that copyright applies to his/her work. Copyright comes about automatically when the work is created, assuming that it is sufficiently original and not itself copied from elsewhere. US law used to (prior to 1976) require a copyright notice but this was discarded nearly 50 years ago.
Therefore you need to be particularly careful when copying an image (or any other copyright work) which you find on the internet. If you found the image on a genuine clip art site (and can prove this) and that site gave every impression that the images were free to use, then you may be able to rely on an implied licence. It would certainly be evidence of a lack of willfulness.
The detail that you have included about when the image was registered with the USCO and when you first found it is interesting. No author is required to register their work just to obtain copyright (this is an international rule derived from the Berne Convention which the USA joined in 1988). However in order to file a claim in a US federal court, the work needs to have been registered (see section 411 of the Copyright Act 1976). Registration is also necessary to be eligible for statutory damages. The fact that a person outside the USA chose to do this so long after the image was first made available makes me suspicious about whether this was a valid registration or if it was done purely to set a trap for the unwary. There is nothing to stop anyone claiming to be the author of a work and filing the registration for a work they didn't create themselves, apart from the threat of prosecution for making a false statutory declaration. The USCO don't verify the validity of the registrations they receive.
The fact that Pixsy is pursuing the claim on behalf of the so-called copyright owner neither supports nor detracts from the genuineness of the copyright claim, but it does raise the possibility that this is just a case of speculative invoicing which can be a real money-maker in the USA because of the statutory damages. On balance though I think you would be advised to speak to an attorney in your state about your next step, because there may be others factors which need to be considered, and I am not an expert on US law. As you are probably aware the level of statutory damages can range from $750 upto $30,000 per instance of infringement. However if you are able to show, as I think you can, that the infringement was inadvertent and not willful, any damages would be at the lower end of the scale. However this could still be a significant amount.
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
Re: Pixsy escalated to law firm question
Thank you for the reply and the link to the document on speculative invoicing. I realize that the example it covers is a bit different, but the theme is the same, and generally it suggests a reply to the letter.
I wondered the same as you about the author setting a trap, or orginally publishing the image on the clipart site for others to use and then changing his mind and/or discovering Pixsy as a potential source of revenue. I have no reason to doubt that the person who created the image filed for the copyright, but I also have no way to prove this. It is quite possible the person took an image he found online, registered it with Pixsy, and is attempting to get money from others. It would certainly be a gutsy move, but since these things appear to never go to court, likely one with no consequences.
While I understand a copyright is automatically granted, in the US (where the law firm is contacting me from), in any judicial proceedings, the certificate of registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. Since this is well over five years the burden of proof of the validity of the copyright is on the author, and that would be provable in court.
Then in 17 U.S. Code § 412, no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for ... any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work (perhaps they could get technical and say the infringement was continuous or also occured after the registration, but it began before the registration.
Since the author would have to prove his claims in court, his legal fees wouldn't be paid for by me, and the author wouldn't be entitled to statutory damages, I am guessing the matter would be dropped. I just wasn't sure if it was wise to reach out and paint a target on my back.
I wondered the same as you about the author setting a trap, or orginally publishing the image on the clipart site for others to use and then changing his mind and/or discovering Pixsy as a potential source of revenue. I have no reason to doubt that the person who created the image filed for the copyright, but I also have no way to prove this. It is quite possible the person took an image he found online, registered it with Pixsy, and is attempting to get money from others. It would certainly be a gutsy move, but since these things appear to never go to court, likely one with no consequences.
While I understand a copyright is automatically granted, in the US (where the law firm is contacting me from), in any judicial proceedings, the certificate of registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. Since this is well over five years the burden of proof of the validity of the copyright is on the author, and that would be provable in court.
Then in 17 U.S. Code § 412, no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for ... any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work (perhaps they could get technical and say the infringement was continuous or also occured after the registration, but it began before the registration.
Since the author would have to prove his claims in court, his legal fees wouldn't be paid for by me, and the author wouldn't be entitled to statutory damages, I am guessing the matter would be dropped. I just wasn't sure if it was wise to reach out and paint a target on my back.