Pixsy.com email re use of photo on website demanding fee

[Fatty]

Andy J , yes there are some historical exceptions to the general rule that copyright extends to 70 years from the authors death, however I don't think this will help much here. Unless I am searching specifically for a historic image, almost all the images I see in online searches are digital images taken in the last 20 years since digital cameras became popular and we entered a digital age. Older , scanned negative images, are comparatively rare unless you are searching for something historic. Paintings are an altogether different matter and have complexities of their own which wont help hier to go into. Automated images with no creative input are also a special case but also something rather rare among typical image search results. In most common searches almost all the results are modern works protected by copyright Law and google even says this in its German image search page. For example I have just put the word "London" in a google image search and in the whole first page, every image I see has the look and feel of a modern digital image. I see non that have even a chance of being copyright expired. In fact most contain well known buildings constructed in recent years and are therefore obviously copyright protected.

You mention photographs that are free to use under a creative copyright licence. I am sure there are many such images, however they are still protected by copyright law and it is the Copyright Holders choice to allow them to be used free of charge. Users for such images must still verify for themselves that they have a licence , that they comply with any terms of that licence ( many require attribution and some are for non commercial use only ) and most important they must verify that any creative commons license is genuine. The internet is full of photographs which somebody who is not the copyright holder, has uploaded somewhere with a creative commons licence for which they have no rights to give. In these circumstances, the user is still liable and thus I would advise great caution for anyone using creative commons images.

Going back to the original post, I can see that the poster is not at all happy with the idea of paying for the image in this question. My advice is the same for most claims. If you have not done the tortious act then defend yourself. Write to the claimant and explain your reasons for believing you have not infringed copyright, for example if the image you used is not the same one as the claimant is claiming. If on the other hand you have infringed copyright, then attempting to reach an out of court settlement is likely to be the cheapest option. Also form a moral perspective, if you have used a professional photographers photograph then you should really pay him or her for it, that's how they earn their living.

With regards to Pixy being a scam, while I have not made a full investigation to check that the firm is bona fide, I have seen no evidence at all that it is. They have a website and they publish their full name and addresses. If it was a scam, I am sure it would have been taken down by now. I do know that they are well now and popular amongst the creative community. Rather than being a scam, perhaps its the case that you don't mean that they are attempting an unlawful criminal extortion but that you just do not agree with their claim. If the later is the case, then its easy to clear up as all the relevant legislation and quite a bit of case law is online. For starters, if you are facing such a claim then reading the Copyright, Designs and Patents Act 1988 is pretty much an essential starting point. The act is online and you can read it here :- https://www.legislation.gov.uk/ukpga/1988/48/contents

To see how that works out in court, I would recommend reading some case law. One of the well known cases is Absolute Lofts South West London Ltd vs Artisan Home Improvements Ltd & Darren Mark Ludbrook [2015] EWHC 2608 (IPEC)

http://www.bailii.org/ew/cases/EWHC/IPE ... 2608.html

That case revolved around two building companies with one building company copying the photographs from another building company and adding them to its own website via a third party web designer. In the end the court awarded £6300 for images valued at £300. There may well have been some significant costs as well.

[AndyJ]

Hi Fatty,

Thanks for your comments here and elsewhere on the forums today. Just a couple of clarifications.

With regards to Pixy being a scam, while I have not made a full investigation to check that the firm is bona fide, I have seen no evidence at all that it is. They have a website and they publish their full name and addresses. If it was a scam, I am sure it would have been taken down by now. I do know that they are well now and popular amongst the creative community. Rather than being a scam, perhaps its the case that you don't mean that they are attempting an unlawful criminal extortion but that you just do not agree with their claim.

It is worth emphasising that I agree with you that Pixsy's business model is not a scam, and I said so in an earlier posting. However I reiterate that a company such as Pixsy which is merely acting as an agent for their photographer clients has no legal standing to commence legal proceedings and it is disingenuous for their letters to imply that they do, when they demand the payment of fees. Furthermore, any fee which is wholly disproportionate should not go unchallenged, however valid the underlying claim of infringement may be. The problem with copyright management companies like Pixsy is that they tend to inflate the fees demanded in order to maximise their own fees which are based on a percentage of the amount recovered.

To see how that works out in court, I would recommend reading some case law. One of the well known cases is Absolute Lofts South West London Ltd vs Artisan Home Improvements Ltd & Darren Mark Ludbrook [2015] EWHC 2608 (IPEC). That case revoled around two building companies with one building company copying the photographs from another building company and adding them to its own website via a third party web designer. In the end the court awarded £6300 for images valued at £300. There may well have been some significant costs as well.

It is important to note that in the Absolute Lofts case the amount of the damages was assessed using the account of profits method. In other words it was not based on what fees the claimant had lost, but on the unfair profits, as assessed by the court, made by the defendant due to the infringement. To that end, your comparison between the quantum of £6300 and the value of images (£300) gives a false impression. In cases where the defendant is a commercial undertaking, an account of profits can often be the better approach when deciding what damages to seek.

[michalaki]

Hi Worried - what happened in the end? Did Pixsy escalate the case / file a lawsuit?

I've received a similar letter and am inclined to send a short factual reply, having taken down the image.

I can't find contact details for the copyright holder so I don't know how to go about checking if Pixsy are actually acting on his behalf or just claiming to.

[Worried]

so far many months later ive not got any more emails from them
this has been a worrying nasty experience
never ever use images via google !

[sophielam]

Hi everyone,I just joined your website for help, I recently got an email from Pixsy Case Management Team resolution@pixsy.com saying unauthorised use of mr xxxx image , they attach 2 pdf files about “ unauthorised use report “ and “ evidence report” , earlier in 2018 I set up a blog and used a picture I’d found using google images it was a very generic looking picture that I’d say isn’t a photo more a photoshopped image of some equipment, as its my 1st ever attempt at a website ..and ive had very few views I kind of let the site fade away as I moved onto other things.

Pixsy say… Note that a failure to resolve this matter of unlicensed use within 21 days will result in escalation to one of our partner attorneys for legal proceedings.
They give an address as Pixsy, 120 High Road, East Finchley, N2 9ED, London , when I used google maps/street view I get this location as a post office see https://www.google.com/maps/place/120+H ... 9447?hl=en

Now ive not responded to the demand of a sum of a bit under £300 ( wont state the price here in case that gives away my case to them should they read this) from the date on the email theyre giving me 3 weeks to pay up..now this looks like a scam to me but it’s a very good scam as details in the pdf include screenshots of my blog ( can I threaten them for copying my blog ! )

They say
In the event that resolution with a license fee is not possible, our next steps are to forward this matter to a legal partner in your local area to secure the highest fees recoverable for copyright infringement. These fees include actual damages or statutory damages, and can include legal costs, expenses, costs affiliated with filing a lawsuit, and ensuing litigation. Fees recoverable in the event of copyright infringement typically far exceed the cost of an initial license.
Pixsy has a strong history and success in the United Kingdom of bring cases to the IPEC (Intellectual Property Enterprise Court) small claims court in matters where licensing of unauthorised use was not possible.
Email: resolution@pixsy.com (please always reply to the original email thread and include the reference number) Phone: +44 20 3807 4030 Post: Pixsy, 120 High Road, East Finchley, N2 9ED, London

So does any one have any proof they will try take me to court ? are their any articles any one has found online etc where people detail themselves being taken to court over use of 1 photo found via google images ? ive found other internet articles re getty images using similar tactics but ive never ever heard of pixsy until this threatening email arrived
I am worried as although the sum may not seem a huge amount to any of you, I am out of work at the moment so the sum is huge to me !
They want payment sent to Bank: Bank of America,
101 South Tryon Street Charlotte, NC 28256, USA
Account Name: Pixsy Inc. Account Number: 898067630803 ABA Routing Number: 063100277 (paper & electronic) ABA Routing Number: 026009593 (wires) SWIFT Code: BOFAUS6S

Please offer me advice, at the moment im thinking to not reply to their email but then in 3 weeks time what will happen ? ive done a few google searches about this situation and found articles on copyright trolls ( which is what I would call them )
In fact I think I found this on your forum from may 2017 https://www.copyrightaid.co.uk/forum/vi ... php?t=2067 I'm glad you've told us this letter is from Pixsy. They are recovery agents who tend to work directly with photographers to identify alleged infringing use of copyright photographs. They are based in the USA and have an office in Germany.

However unlike most picture agencies they are neither assignees nor exclusive licensees as far as copyright is concerned and that means they cannot actually initiate litigation for copyright infringement in the UK. Some people refer to such agencies as copyright trolls because they largely operate by demanding inflated fees from alleged infringers. They then keep roughly 50% of everything they recover. The UK courts have been fairly unsympathetic to such companies and methods in the past (see the Media CAT cases).

I strongly suggest you do not have any dealings with this company until you have obtained legal advice. And certainly do not make any admissions of liability. ( end of info i copied from copyrightaid)

If this pixsy’s firm has some algorithm to detect pictures on websites I am sure there will be a flood of people facing similar stress so please advise me asap
Many thanks

Hi Worried,

My name is Sophie and I am currently doing research for an investigative article on Pixsy, and particurlarly one invididual posting thousands of pictures seemingly free of copyrights and then using Pixsy to threaten the user with a lawsuit. I understand this issue dates back to about a year but this pattern of abuse is still going on today, could you please shoot me an email at s.u.lamotte@lse.ac.uk if you'd be comfortable sharing your story? It would be extremely valuable to my investigation.

Best,

Sophie

[LAWRY RULE]

Worried, it’s really pretty simple. You can NOT use an image (for commercial purposes) that isn’t yours. An image ( and song and art book etc) has copyright protection the moment it’s created.

[landed]

I have also received one of these. I have not been presented with proof that the original images (x3) have been properly copyrighted yet. I decided not to click on the link in the email as I suspected a scam.

I have been given the images as promotional images by whom I thought was the owner of the images. It's pretty standard stuff really and this does seem like a law that is being exploited by technology superseding law.

I would happily pay a reasonable sum to the plaintiff so wonder if I should contact directly however know that might mess things up also. I am going to fight it and not pay. I am certainly not someone who wants things for free.

As far as I know it is not possible to check an image to see if it is copyrighted. If there is no watermark or copyright mentioned then I do not see how anyone could be guilty. But I know the law doesn't work that way. I try to be very lawful in everything I do. It seems we are getting caught in a technological net and 70,000+ and counting.

I cannot seem to DM you which is a shame. But thank you all for taking the time to share and post your story and experiences. If there are changes please DO mention.

[ATMOSBOB]

"As far as I know it is not possible to check an image to see if it is copyrighted. If there is no watermark or copyright mentioned then I do not see how anyone could be guilty. But I know the law doesn't work that way. I try to be very lawful in everything I do. It seems we are getting caught in a technological net and 70,000+ and counting."

Does the photograph look old? could the photographer have been dead for 70 years or more? No?

It will be in copyright if you answer no to the 2 questions above. If you want to be lawful in everything you do I assume you are familiar with https://www.legislation.gov.uk/ukpga/1988/48/contents. Its the law on using copyright material.

[snapper man]

I have read with interest the comments on this forum - I am a professional photographer who makes over 50% of his income from secondary licensing. The photography community as a whole is tired of continuous theft of their work and I, like most commercial photographers, use the services of copy track, Pixsy, and IP Protection Ltd. Yes, Pixsy is a reputable company and has represented on numerous cases and they do, through specialist attorneys/solicitors, issue court papers both in the UK and US for us. Typical claims wins per image are usually in the area of $4-5K per image plus court costs. In the UK, claims are issued through the High Court (IPEC). We also report persistent infringers to PIPCU (City of London Copyright Police unit) and this has resulted in several police cautions being made to company directors.
Unauthorised of copyright materials in the UK is direct violation of the Copyright, Design and Patents Act - its both a civil and criminal matter. Denying knowledge of the statue of an image is not a defence - please refer to Hoffman vs DARE.
For some light reading
https://inside.lighting/news/legal-head ... OAKtlBzyss
https://www.amateurphotographer.co.uk/l ... attle-8237
https://www.webbaviation.co.uk/court-report.html
https://www.webbaviation.co.uk/court-report2.html

[AndyJ]

Hi snapper man,

Thanks for your comments which illustrate the issue from a copyright owner's point of view. On the forums we support the right of creators to get fair compenstation when their work is used without permission, often by people with only a sketchy idea of how copyright works. However the sums usually demanded by claims management companies are more than this; they are punitive amounts, partly on order to make such services profitable.

Although it is not a legal requirement I would advise any photographer who wants to protect his/her work from misue to make sure they embed a visible copyright notice in their images as well as in the EXIF data. Such notices serve the double purpose of deterring copyright infringement and acting as an credit for the photographer. Yes, both of these can easily be deleted, but anyone who does that is then likely to be liablle for additional damages as happened in the Webb Aviation cases. Additional damages can be awarded for the failure to credit the author of the work after this has been asserted (section 77 CDPA) and for tampering with electronic rights management information (secton 296ZG).

With regard to your comment about the City of London PIPCU, they should only be notified if the scale of the infringement is such that the criminal threshold has been passed (eg large scale DVD copying). Most of the time, copyright infringement remains a civil matter and it is inappropriate to try to involve the police who are already very busy with "serious and organised intellectual property crime"*. Incidentally, the 'C' in PIPCU stands for crime, not copyright.


* this quote is taken from the PIPCU's Referral Guide which should be read before submitting a complaint to the unit.

[DesignerHelp]

Hello!

I just wondered if you had any advice on how this matter with Pixsy panned out as I am experiencing a similar thing.

Please help

Many thanks in advance

[danieleros]

Hello there, to cut a long story short I have also had recent dealings with Pixsy, they are trying to charge a figure of between £200 and £400 for what they claim is unauthorized use of a client's image.

I have tried to play hardball, saying: "that unlike most picture agencies you are neither assignees nor exclusive licensees as far as copyright is concerned and that means that you cannot actually initiate litigation for copyright infringement here in the UK".

I made a counter offer to basically try and get rid of them. They have bascially come back saying: "Our offer to license the image is no longer available to you. The case will be escalated to a local legal partner."

However, I was under the impression that they cannot actually initiate litigation for copyright infringement here in the UK, it would be down to the actual photographer.

Is this correct? And the photographer is based in the US.

Cheers

Daniel

[AndyJ]

Hi Daniel,

Yes, you are correct that only the copyright owner, an assignee or their exclusive licensee can initiate a claim before the court and an ordinary licensee could only sue in special circumstances with the consent of the copyright owner who would need to be joined as a complainant. (see sections 96, 101 and 101A of the Copyright Designs and Patents Act 1988).

If Pixsy go ahead with their threat then the solicitors would need to be acting for the copyright owner who would then be named as the complainant on the claim form. Pixsy effectively drops out of the picture as far as the litigation is concerned. Obviously this can still happen even if the copyright owner is not based in the UK, but he or she would be liable for any upfront legal costs (such as the solicitor's fees, court fees etc) as well as any costs which might be awarded against him by the court. As we point out fairly frequently in these threads, if the claim were to be handled in the small claims track of the IPEC, the upfront legal fees of the claimant cannot ordinarily be recovered from the defendant if the claimant wins. Thus for the American photographer and Pixsy this poses a considerable risk that they will pay out more in legal fees than is reasonably recoverable through damages. If Pixsy's original claim was in the region of £400 pounds, that probably amounts an hour or two of the solitictor's time in preparing the case, let alone an appearance fee.

Practically speaking, going to court would be foolhardy if a compromise settlement is possible. Pixsy are gambling on the fact that the threat of court will scare you and that probably if they win it will cost you more than if you had settled at their original figure of ~£400. However if you defend yourself, which is perfectly doable in the circumstances, at most you would only incur as an extra cost the court fees and the complainant's travel/loss of earnings claim on the day of the hearing, which if he is based in the US might well be conducted via video link, so fairly minimal.

[danieleros]

Thanks for the quick reply, it's much appreciated.

Yes I have dealt with Pixsy a few times over the years (usually once a year) and they usually use scary words to reach a settlement as they don't want it to go to court.

The odd thing this time is they have stopped any negotiations very quickly, usually they would come back with a counter off to my counter offer. This time they have quickly ended the dialogue and that makes me think why?

Interestingly, they did attach a licensing statement that showed the type of fees that the PHOTOGRAPHER typically obtained for his work. I will take this with a pinch of salt but some of the fees listed were in the region of $1.5k.

I'm assuming if it did go to the IPEC and the photographer won then Pixsy would not gain a single penny?

What Pixsy were asking for was actually below £300 as well.

Cheers

Daniel

[AndyJ]

I'm assuming if it did go to the IPEC and the photographer won then Pixsy would not gain a single penny?

Daniel

I don't know what the agreement between Pixsy and its clients is under such circumstances. I would imagine they may receive the same proprtion of any damages awarded as they would if they had recovered a sum of money from their direct dealings with alleged infringers. I would be surprised if they got nothing at all if the matter went to court as that would disincentivise them from handing things over to the lawyers.