More PίcRίghtș nonsense.

[Cosmicity]

Hello everyone!

This concerns a nonprofit community-style blog that someone asked me to design and create content for several years ago - I was a freelance web designer, working part time to make ends meet, but not really making a good job of it as a business.

He owns the domain, but he was never really involved and trusted me and sometimes others to create content for him. Since I stopped doing it, the site has pretty much sat there stagnant with nothing much happening.

However, he's just had a nasty letter demanding money from Pίcrghtș, claim money over an alleged copyright image used several years ago.

Personally, I would ignore them - but he got scared and so he sent them my details.

I no longer work in this area

I retired from website design because of health problems and cannot prove much to anyone anymore - most of my domains are gone, as are any accounts I held. It was a few years ago, and as much as I tried to operate with integrity, there is a good chance the article was shared from another blog or a social media poster who wrongly implied permission. It could literally be any one of a number of sources where we got the picture.

I'm pre-empting what to do and wondering if the following is a good strategy?

I plan to contact PR, denying responsibility for the content even though I was in charge of the site - putting the burden of proof onto them to demonstrate a misdemeanour has occurred - hopefully without sending them back to harass the owner.
I have not logged in via their reference number, as this will probably be tracked.

I'm planning to demand the following:

1. Proof that the image belongs to their client - I will ask for access to image creation files (photoshop files etc.) with metadata that links the image to the alleged creator. I will even offer to visit their office to view the files.

As far as I understand, that although copyright exists, it's still up to the creator to prove it and prove who violated it.

2. Proof that the image is unique and has not been remixed from other sources - it contains some branding from another organisation which I believe is above board, but there are many similar images out there presenting a similar idea.

3. Proof that the image was not distributed or made available on any other platform apart from the one they claim to represent, and I will request a notarised statement or statutory declaration to verify this.

4. Proof that the alleged image creator is really their client and aware of their procedures.

5. A breakdown of their charges; the demand is 7 times the cost of a lifetime licence for the image on a stock photography site. It's like being given a fine, although I know they cannot call it a fine.

I'm also suggesting that, if they fail to produce any of the above, that they should consider the matter closed and to not contact me or the site owner again.

I have also submitted a takedown request to Wayback machine - no idea how long that takes.

Is there anything else I should add to my letter or anything else I need to be aware of?

Thank you

[AndyJ]

Hi Cosmicity and welcome to the forum,

I think it is important to say from the outset that the image concerned is almost certainly protected by copyright and if it has been used without a proper licence then infringement is likely to have occurred. From your description it also sounds as if you, as the one who created the site, are the person who would be liable for that infringement if it has occurred, and not the client who commissioned the site. You certainly seem to accept both of these points.

However that being said, all the steps you have suggested are pefectly sensible ones. I assume that you know which image is the subject of the PicRights demand. You need to try and find out where it is currently available under licence, in order to establish the current market value of that licence. In the course of your research you may discover that the image is or was being made available with a free licence, in which case you can provide this information to PicRights to end the matter. But assumingly that is not the case, you may know from the other threads here on the same issue, the copyright owner is only entitled to damages which represent his actual financial loss due to a licence not having been obtained at the relevant time. That licence fee then represents the basis of any counter-offer you should make in the event that PicRights manage to satisfy you that they are acting on behalf of the bona fide copyright owner.

You don't sound like someone who is going to be bullied and that is exactly the attitude you should take in your dealings with PicRights. They are bullies and their operation doesn't work unless they can pressurise their targets into paying the full, disproportionate amount which they have demanded.

[Cosmicity]

Hi Cosmicity and welcome to the forum,

Thank you

I think it is important to say from the outset that the image concerned is almost certainly protected by copyright and if it has been used without a proper licence then infringement is likely to have occurred. From your description it also sounds as if you, as the one who created the site, are the person who would be liable for that infringement if it has occurred, and not the client who commissioned the site. You certainly seem to accept both of these points.

I don't want to comment too much on this at the moment, because PR have probably got people scanning this website.

Memory tells me that the site was running in 2008 and I redesigned it in about 2012 - but the article in question was posted around 2018. Later on someone edited the date to make it look newer (a wordpress thing you can do).

However that being said, all the steps you have suggested are pefectly sensible ones. I assume that you know which image is the subject of the PicRights demand. You need to try and find out where it is currently available under licence, in order to establish the current market value of that licence. In the course of your research you may discover that the image is or was being made available with a free licence, in which case you can provide this information to PicRights to end the matter. But assumingly that is not the case, you may know from the other threads here on the same issue, the copyright owner is only entitled to damages which represent his actual financial loss due to a licence not having been obtained at the relevant time. That licence fee then represents the basis of any counter-offer you should make in the event that PicRights manage to satisfy you that they are acting on behalf of the bona fide copyright owner.

I found the image on Alamy with a licence fee of £30 - which seems reasonable. Using a reverse image search, I also found a link to it on Shutterstock, but the link is now dead, which suggests it was shared to other sites and later removed.

You don't sound like someone who is going to be bullied and that is exactly the attitude you should take in your dealings with PicRights. They are bullies and their operation doesn't work unless they can pressurise their targets into paying the full, disproportionate amount which they have demanded.

No, I won't be, I have a vague memory of ignoring them before, many years ago - However, if the domain owner gets rough treatment, it'll be my responsibility to reimburse him. How I respond is my business, but it isn't fair to put this onto someone else who had no reason to know better.

I need to convince him to stand firm.

[Cosmicity]

So, just to update, I have not sent the above, as yet. Instead, I've been waiting to see what happens with the website owner first, and this was the last paragraph of their last email, just under three weeks ago...

To the extent that you are disputing our client's right to claim damages for unauthorized use of such content, the possibilities of my team to settle this matter have been exhausted and this matter will be escalated to our outside legal department. The offer has now been rescinded and you will be held liable for any possible additional fees incurred.

I'm guessing that the next letter either, 1. won't come, or 2. will be another generic demand.

Based on the posts in this forum, I don't expect them to be forking out the legal fees for any claim - especially that the image has now been removed, including from Wayback Machine.