Pixsy Email Help

If you are worried about infringement or your work has been copied and you want to take action.
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FowlChr
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Pixsy Email Help

Post by FowlChr » Tue Dec 18, 2018 4:59 pm

I really need some advice on how to deal with Pixsy.

I've received their standard threat email regarding an alleged infringement of copyright as well as a request to pay £425. The post was made on Twitter but has since been deleted, alongside the Twitter account and all other social media pages.

I waited a week to respond as I had been advised to put nothing in writing to Pixsy, but they have since emailed me again today as a former colleague wanted to exempt himself from any liability (which is fair as he had nothing to do with the image). Pixsy claimed I obtained the image from a Flickr account, whereas I actually obtained it from the official website of a football club (it was a football-related social media channel).

I have since replied to the email requesting an email address for the photographer (whom I have also tried to contact via other means but to no avail). Pixsy replied by saying that the photographer 'has instructed Pixsy to act as his licensing agent. As such, all communication regarding the claim should come through Pixsy.' This was the sort of reply I was expecting from Pixsy and suggests to me that they don't want me to talk to the actual copyright holder as this will diminish their profits.

Could I please get some help with regards to what I should do next?

Thanks.

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Re: Pixsy Email Help

Post by AndyJ » Tue Dec 18, 2018 9:09 pm

Hi FowlChr,

As you may be aware from another thread on these forums, Pixsy is not operating a scam or doing anything illegal. They provide a service to photographers by attempting to obtain payments from those they deem to have in some way infringed their clients' copyright. For this they charge the client a 'success' fee which inevitably means that the overall sum demanded is larger than it would have been had the photographer set a fee from the outset. Thus it seems likely that the £425 you have been asked to pay represents some multiple of what would have been the standard fee. This you already know, since you are aware of why Pixsy are reluctant to let you contact the copyright owner directly.

However the standard protocol to be applied in such cases means that they should not only identify the copyright owner, but also offer some basic proof that the image you are said to have used is indeed the work of their client. A failure to provide even this basic information may be taken as an indication of bad faith and be reason enough not to continue dealings with Pixsy. It is also something which, should the matter get as far as the courts, the courts would take a dim view of, possibly even affecting the amount of damages which might be awarded.

I have no idea of Pixsy's success rate on behalf of its clients, but I can tell you its success rate in bringing claims to court will be zero, since they have no right under UK law to commence proceedings and they aren't a law firm.

That having been said, there remains the possibility that there may will be a valid claim for infringement in all this, and if that is so, you need to consider what is the best way to approach this. The fact this may have been unwitting infringement on your part doesn't affect the issue of liability. And the law says that copyright owner is entitled to recover what is due to him or her, but makes no provision for entities such as Pixsy. If you are able to negotiate directly with the copyright owner (presumably the photographer, but quite possibly his/her employer if he/she works for a sports picture agency) then a lower fee may agreed. I suggest you contact the football club where you found the image and ask if they have details of where they sourced the image which, if this information is forthcoming, might allow you to establish the actual market rate for this image, as well as the identity of the copyright owner. If you lucky enough to get that far, I think that market rate fee plus a small uplift (say 10%) for administrative expenses, could form the basis of your counter-offer to the photographer. I suspect that such a figure will be substantially less than Pixsy are demanding. A second method is to use Google image search or TinEye to search for other instances of the photograph and see if they lead you to the identity of the photographer.

But even if you are unable to contact the photographer/copyright owner, and are forced to deal with Pixsy, remain resolute in not accepting the first figure which has been demanded because it assuredly does not represent the true value which has been lost by the copyright owner, for the reasons I gave in my first paragraph. And secondly, do not admit liability. To do so would inevitably remove your room for manoeuvre if matters did go to court at a later stage. If you can negotiate an acceptable fee in settlement, this will be in order to provide a retrospective licence for your past use of the image, and therefore no admission as to liability will be necessary.
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FowlChr
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Re: Pixsy Email Help

Post by FowlChr » Tue Dec 18, 2018 9:32 pm

Hi Andy,

Thank you for your reply. Pixsy did provide the name of the photographer and I was able to find their Flickr page, where I attempted to contact them. It is definitely their photo. However, they are based in Germany and so I'm not sure as to whether or not they even speak English. I have got in contact with the football club asking about where they sourced the photo and if they have any contact details for the photographer, since Pixsy have refused to provide them to me, although this may be difficult in itself as the club is an English club and have not used a local photographer - they have used a photo taken by a photographer while the player was at his previous club in Germany.

In their original PDF they failed to provide any proof that they represented the photographer in question. Is this something that I should ask them to provide? And if they don't provide it, what should I do?

Also, it may be worth noting that I had edited the original photo in a way that I would consider to be transformative. I've heard this case used in defence of fair use before but I'm not sure how applicable it would be in such a case.

Thanks again for your help!

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Re: Pixsy Email Help

Post by AndyJ » Tue Dec 18, 2018 11:04 pm

Hi FowlChr,

If you have the name of the photographer, it is definitely worth trying to track him down and do a deal directly. As I have mentioned, only the copyright owner can bring a claim in the UK courts, and this would be administratively more difficult for a photographer based in Germany, and so a direct deal might appeal to him. Pixsy is relatively powerless in the circumstances*.

And yes, Pixsy should provide evidence that it has the authority to act on behalf of the photographer. If they cannot, this could amount to fraud. However I feel relatively sure that Pixsy will have the relevant paperwork in place.

Unfortunately the transformation aspect does not help. In order to make an adaptation (the word used in UK law) of a copyright work, you first need to permission of the copyright owner (see section 21 CDPA). However a photograph is classed as an artistic work, and artistic works are not included within the scope of section 21. This means that the nearest exception which might apply to altered images is that found in section 30A, where the purpose is for parody or caricature, which doesn't sound to be applicable in your case. I suspect the advice you received was based on the US doctrine of Fair Use which does permit a copy of a work to be made without permission, provided that (amongst other factors) the transformation is sufficiently radical so as to not economically threaten the original work in its conventional market. Nothing like that exists under UK or EU copyright law though.

* The reason Pixsy is powerless is because in order to carry out their threat, the matter needs to proceed to a claim before the courts; Pixsy can't do this since they don't have standing. Thus they would need to persuade the copyright holder to start proceedings. It appears that the copyright holder lives in Germany, which makes it awkward for him to start proceedings in the UK court, so he will need to engage British lawyers. This will cost him several times the amount Pixsy are claiming and his legal costs will not be recoverable if the case goes through the IPEC small claims track, which is the appropriate course for an action of this type. Of course the photographer could take his claim to the German courts, but they don't have a small claims system such as the IPEC, and so he will still need lawyers (and thus still incur additional expense) and even if he gets a favourable judgment in the German courts, he faces additional expense in getting that judgment enforced in the UK. All in all it is not economic to bring a claim, and it is certainly not in Pixsy's interests since they would be forced to invoice their client (the photographer) if they wanted to make any money out of the deal.
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Re: Pixsy Email Help

Post by ATMOSBOB » Wed Dec 19, 2018 11:10 am

I disagree. There is nothing which says that a German photographer cannot bring a case to IPEC without using a lawyer. As we have seen from the recent case shown on this forum the court can be very generous in awarding costs to pay for a photographer's travel and accomodation expenses. The infringer could easily end up paying for a photographer to fly from Germany.

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Re: Pixsy Email Help

Post by AndyJ » Wed Dec 19, 2018 1:50 pm

Hi ATMOSBOB,

Yes I fully agree that there's nothing to stop a German photographer from launching his own case in the IPEC. My point was that such a course of action is not in Pixsy's interests since they stand to make nothing directly from it. And one imagines that the reason the German photographer engaged Pixsy in the first place was to free him to get on with taking photographs and not have the deal with the admin side of chasing alleged infringers.

If you have read this thread carefully I have been at pains to suggest that the OP should try and deal with the photographer directly because this would ultimately benefit both parties, since the photographer would receive 100% of the fee paid, while the OP may end up paying a more realistic amount for using the photograph. No-one, least of all the OP, is denying that the German photographer should be treated fairly in all this.
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Re: Pixsy Email Help

Post by FowlChr » Wed Dec 19, 2018 3:39 pm

Hi all,

This is an update to explain that the case has been settled.

Because the image was removed they lowered their price to £350 - a much more reasonable offer that I was happy to pay.

Since I had a difficult week personally - my father's funeral was last Friday - and with university essays to write, I simply wanted to resolve the issue as soon as possible, so I have paid their newly revised amount and all seems to have been resolved.

Thanks for all your help!

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Re: Pixsy Email Help

Post by stc74 » Wed Dec 19, 2018 6:26 pm

Jumping in here because Andy's post is misguided (I'm a photographer and I've used Pixsy to successfully defend claims in the UK, including in the IPEC). Pixsy is not a legal service provider - they work to put licenses in place for unauthorized use of work. In the event that you do not pay a license fee, they work with law firms around the world to escalate cases - so yes they do have a stake in initiating court proceedings on behalf of their photographers, and I'd be very cautious about heeding general advice on forums when legal matters are at stake.

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Re: Pixsy Email Help

Post by AndyJ » Wed Dec 19, 2018 8:37 pm

Hi stc,

Thanks for your contribution. Because many of my responses here tend to cover the same ground, at times I fail to fully explain all the legal realities which lie behind my comments.

I fully recognise Pixsy's role in acting as an agent and claims manager on behalf of busy photographers. The ultimate threat behind the letters which they send out is that legal proceedings are the next step. However under UK law an agent cannot institute proceedings in copyright cases. There are only only two types of person who can: copyright owners, and exclusive licensees. This means that in most cases the photographer has to initiate the claim process with the court, or he can instruct a solicitor to do this on his behalf. He then becomes liable for paying the solicitor for his services. Since legal costs cannot be recovered from the losing party using the small claims track, the amount of damages the photographer is awarded has to exceed the solicitor's fees, plus the commission payable to Pixsy, before this option makes any economic sense. Only in the more egregious cases of infringement, is the photographer likely to leave court with a small 'profit' after paying his legal bill, which is probably going to exceed £1200 for the simplest of cases.

Thus I should be very happy to hear more details about the cases that you have been involved in because I suggest they are not in same league as the one which FowlChr has just settled for £350.

I entirely endorse your final remarks. Advice on this or any other forum is no substitute for the legal advice you will receive from your own solicitor, and we usually advise people to get their own solicitor when either the issue is a complicated one or where the stakes are high. The essential thing is to use a solicitor with experience in IP litigation. Regretably not everyone can afford a solicitor, especially when there is no prospect of recovering legal costs through the court.
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Re: Pixsy Email Help

Post by ATMOSBOB » Thu Dec 20, 2018 12:40 pm

Dear Andy

We have a problem in that not all IPEC cases are published and many infringers settle after papers are sealed and delivered so never come to court.

Photographers are generally friendly people and network effectively to help each other. I am not 100% certain of the way Pixsy works but AFAIK if they fail to get a settlement the photographer is free to take back the case and pursue the infringer himself. Many photographers have taken action against infringers without employing lawyers.

It is not impossible for a German to attend an IPEC hearing and claim costs. The airfares from Germany to London for the day are probably less than my train fare from Cornwall.

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Re: Pixsy Email Help

Post by maninthemirror01a » Tue Feb 05, 2019 2:17 pm

Thanks for creating this thread, very useful indeed. I am in a similar position as well. Basically one of our team used a very standard type image from Flickr (marked with Creative Commons license) but forgot to credit the image accordingly when the article went live. I then get an email from Pixsy, pretty much stating what is above, basically saying if I don't pay the fee then they will start legal proceedings against me. The image has been taken down and I have not as yet replied to Pixsy. I have now received a third email from them, demanding the money or they will pass it on to the legal people. What should I do? Reply or just remain silent? I'm assuming their business model is built around scaring people into paying the full amount or at least 75% or so of the fee? Surely it will cost them or the actual photographer I;m guessing over £1k to take legal action, so not worth their while? The fee seems very unreasonable as well, if it was £50 then I would simply pay it so they would go away but it's not this little and I don't like the bullying nature of their tone. Any help would be much appreciated.

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Re: Pixsy Email Help

Post by AndyJ » Tue Feb 05, 2019 6:28 pm

Hi maninthemirror,

What kind of Creative Commons licence was attached to the image when it appeared on Flickr? And secondly, what kind of use has your team made of the image? For instance is it on a commercial website or advertising a product etc? The latter would probably breach a non-commercial (NC) Image Creative Commons licence. However if the NC tag was not present then using the image in a commercial setting would not invalidate the licence.

The attribution aspect is more difficult as all modern (ie version 4 CC) licences automatically require attribution, and unlike the UK law covering the moral right to a credit (see below) which allows a credit to be omitted in certain circumstances, the Creative Commons licence conditions provide no such waiver.

Either breach would render the licence void and so Pixsy may be dealing with a valid claim for infringement. But if the image had been released under a much older version of the Creative Commons licence such as the Share-Alike (CC-SA) licence, you may be alright to use it and can ignore Pixsy. However I feel sure that they would not waste their time if that was indeed the case, and so the rest of my reply assumes there was, at the very least, an attribution tag (the little man symbol with the word 'by' underneath).

As you have surmised, Pixsy generally inflate the amount claimed to settle the matter in order to cover their fee. However as you suggest they are usually keen to avoid going to court because of the extra legal costs which they can't recover through the IPEC Small Claims system. You should certainly make a counter-offer under the circumstances. Very few cases involving creative commons licences ever get to court, and for those that do, there is the added problem of arriving at the true monetary loss which has been suffered by the photographer, given that he/she is otherwise content to release his/her work for free provided that the licence conditions are complied with. This means that the court would most likely treat the matter as if it was just a moral rights* issue (see section 77 of the Copyright Designs and Patents Act 1988) where the tort is one of a breach of statutory duty (see section 103). But again, cases involving just a breach of moral rights are also rare and so it is hard to give any examples** of the sort of typical awards of damages, when there are not parallel damages arising from a claim for infringement.

This doesn't really help you to establish a sensible figure for your counter-offer. However, I think it is fair to say Pixsy's client has a very weak basis for a claim for infringement, and a slightly better one for breach of moral rights. Thus, this is not a claim I would advise any client to take to court as the probable financial award is likely to fairly low and almost certainly insufficient to cover any legal costs. It is certainly not a case, I suggest, that a litigant in person should try to pursue in court.


*Moral rights arise from the UK's obligations under the Berne Convention; they are not an area of copyright law over which the EU has any authority to make the law, and so we have no caselaw from the Court of Justice of the European Union on this subject.

** Here's one from an Israeli Rabbinical court in which the claimant was awarded 3500 Sheqel (about £735) in damages.
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Re: Pixsy Email Help

Post by maninthemirror01a » Tue Feb 05, 2019 6:50 pm

Thanks for the quick reply. We are a magazine website, so it was used in an editoral piece.

I notice on the image in question (taken in October 2017) it links here - https://creativecommons.org/licenses/by/2.0/ - just above says Some rights reserved with an icon of a person.

I could private message the link to the image if this helps.

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Re: Pixsy Email Help

Post by AndyJ » Tue Feb 05, 2019 7:03 pm

Hi maninthemirror,

Thanks for the additional information. That licence does require attribution, but there is no conditionality about commerical use. No need to send me a link to the image as it isn't really relevant. I think we can assume that the photographer has a valid claim to copyright in the photograph. But as I mentioned in the earlier reply, in essence, any claim would be based on a breach of the moral right to attribution, per section 77.

It might be argued (as it has in a number of cases in the USA involving CC licences) that this is more a matter of breach of contract, than copyright infringement. Personally I would say the section 77 grounds, weak though they are, are still better than arguing a breach of contract in this instance.

So to repeat, I think Pixsy will be aware that they are not in a strong position to make good their threat of legal action and so may settle for a fraction of their initial amount. I assume you don't have litigation insurance for your magazine site.
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Re: Pixsy Email Help

Post by maninthemirror01a » Tue Feb 05, 2019 7:09 pm

No I don't have insurance to cover this.

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