PicRights what else?

[mynameisnotdonald]

It is obviously not possible to do a reverse image search on every image in a blog so inevitably one falls foul of PicRights.

Yesterday I received two notices of infringement. Both images appeared in blog articles. The first a 1200 x 500 image from AFP which was posted on 9/8/2019. PicRIghts wanted £79 for this which seems entirely reasonable.

The second image which was a 200 x 200 image posted on 3/3/2018 and the copyright holder is supposedly Reuters. The image does however appear on Flickr but with an ARR license. I'm sure I downloaded it with a CC licence but cannot prove it. I have contacted the image owner but not sure if they are still active on Flickr. PicRights want £840 for this one, which seems extremely unreasonable.

The site in question is very low in traffic so any losses for the copyright holder are minimal in both cases. Also the images should be considered as being for editorial/informative use, they are not being used to market or sell anything.

First of all does the Pirelli case apply in this case, could the infringement have been detected previously? Also would PicRights be amenable to a suggestion of a similar payment for the second image given its small size?

What should any compensation cover given that any fee paid is not for a licence as the images must be taken down.

In this case I feel that I should negotiate as low a fee as possible and bring an end to the matter quickly.

Does this seem a reasonable approach?

[mynameisnotdonald]

Just an update.

The smaller claim has been settled but the other claim is being haggled over. PicRights revealed how the Reuters compensation was calculated so I logged in to Reuters and found that the licence should be £164 not £420.

I still need to get to grips with the admin fee. Originally, they simply doubled the licence fee, which is far too high (£840 in total).

As I understand it, if the whole thing went to court, then the total they would get would probably be the licence fee, court costs and loss of earnings.

As we are still in the initial 'pay in 14 days period' then I feel that a significantly smaller fee is better for everyone. No court costs and the fee does go into someone's pocket.

[AndyJ]

Hi,

Sorry to have missed your earlier posting, I've been away from the forum for a while due to technical issues.

On the subject of admin fees, there is no real guideline. PicRights are being paid by Reuters for their work and so realistically speaking you don't need to also pay them to do the job they were hired for. You are right that if the claim went to court, the question of an admin fee would be irrelevant since PicRights would not be involved and in any case such fees aren't an admissible expense which could be added to damages, unless perhaps the claimant was eligible for additional damages - that doesn't seem to be the case here.

So really an admin fee would just be a sweetner. I have no idea if RicRights would just keep it, or pass it on to the copyright owner. We usually suggest around 10% in order to show goodwill. But you are free to pay more or none at all. As you appreciate, these pre-litigation negotiations really have no set rules, but they should be conducted in the knowledge (by both sides) of the reality of how things would play out in court if matters were to go that far.

[mynameisnotdonald]

Thanks for this.

PicRights are still trying to claim that the licence should be for commercial not editorial use. My response has been to point out that the blog section of the website is not "Used for advertising, marketing, merchandising, or product endorsement".

The image used was 200 x 200 and was placed on a low traffic page, 12 hits in the last 12 months. It seems to be that the Reuters fee did not take into account placement etc. I cannot verify what the actual amount would be as I would have to get a quote from Reuters themselves!

I shall see what they come back with now that I have given them two options of applying the editorial licence plus a small fee or using the appropriate commercial fee adding a bigger admin fee and applying the rather large discount offered.

[mynameisnotdonald]

After a flurry of emails I received one with the following line:

This is our final offer of reduction. This offer is not negotiable.

Does this mean that if i do not accept then it will almost certainly be referred to PicRights thugs (sorry legal team)?

The fee is more than I would wish to pay but is significantly less than the original ask and is in line with a standard licence. This would be a good way to end the hassle. If I had plenty of time I would go to court but if the licence fee is the same then it would cost me more.

[AndyJ]

Given some of the 'negotiating' tactics employed by PicRights we have heard about, the next step might well be the threat to hand the matter over their legal advisors, but in essence that does not inevitably mean that court proceedings will ensue. You need to bear in mind that the decision to begin court action is not one which PicRights can make. Only the copyright owner can bring proceedings for copyright infringement. Depending on the circumstances, this may not even refer to Reuters. The original photographer may possibly still be the copyright owner, and Reuters is just an agent of the owner. Whoever its is, it is not PicRights.

So at best PicRights can suggest to Reuters (or whoever) that the next step should be litigation, but they (PicRights) can't make the decision. What is more, since PicRights are forced to withdraw from the litigation process then potentially they may not be entitled to their share of any damages which might ultimately be awarded. In these circumstances, there is a great incentive for them to just drop your case altogether (without, of course, telling you this) and go after an easier one.

[mynameisnotdonald]

Not sure exactly who the copyright holder is. The image listing does not say 'copyright Reuters' or similar.

I would love to win this battle but my time is valuable so if Reuters are the copyright holder I may settle as it is only for the licence fee. If they are not then I might just see what happens.