PicRights Solicitor Letter Demanding Fee For Alleged Image Use

[AndyJ]

Hi VG,

They'll propbably blame the pandemic. That seems to be the excuse for a lot of poor service these days!

[annab]

Hi everyone,
I have been contacted by PicRights demanding payment for pictures I have apparently used on my website from 3 different companies - each letter is demandig payments of over £4000. I have emailed them and explained the situation that I was not aware that these pictures had licences and if I knew there were or knew the amount it cost, I wouldn't have done it as it's outside of my budget. I run my website as a hobby for informative purposes only and can't even afford to pay £100 + per picture so I have offered them £20 per picture which still comes up to good few hundred pounds. I have also been out of work for few months as I have broken my leg and have no income what's so ever. I have mentioned all of that in my response but they have declined my offer and just offered me 30% discount on the original amount requested. I still cannot afford the payment and physically haven't got such money. What should I do? Any help or suggestions are greatly appreciated

[AndyJ]

Hi Anna,

I'm sorry to hear about your experience. All I can suggest is that you read through all the postings in this thread to see what we have previously said on the subject. I don't think there is anything extra we can add which relates specifically to your circumstances.

[Claw2321]

Hello, really hoping that Andy is still available on this thread as there have not been any posts for a while.
My husband received a letter from Pic Rights last September claiming that he had used a rights managed image on his website belonging to PA Images He was testing out the blog capability of his website and thought he would add something to promote the clap for carers theme at the time.
He did a search for clap for carers on Google and found an image on a what’s on type entertainment page and found an image that stated “clap for carers - tonight 8pm, spread the word” or words to that effect. There were also the share type buttons for Twitter, face book etc, so therefore it seemed like it was an invite to promote this message and he saw no problem in adding it to the blog page. He has proof of where the image came from.

The image that PicRights add to their communications that they say they have sourced from my husbands website is the photograph without the wording ie. the original image?contained on the PA Images website which is rights managed. It is not the image that included the extra wording, stating tonight, 8pm etc.

Am I right in thinking that this renders the copyright infringement claim invalid as my husband did not use the image from the PA Images website, but one that someone else had already altered.

After several persuasion techniques at the back end of last year to try to obtain payment, where the figure would be reduced several times if payment was made within a number of days, we started to ignore the e-mails and phone calls passing it of as a scam. However last week an e-mail was received from the law firm Burness Paul, stating exactly the same as that reported in the first message of this forum and, from reading what advice has been given, it seems that we ought to provide a response within the 14 days they have requested requested. I just want to get my facts right before compiling an e-mail for my husband to send.

He removed the image straight away last September after receiving the first e-mail, by which time the message was out of date anyway (and it’s unlikely anyone ever saw it). I would appreciate your advice on the best course of action. Thanks Cheryl L

[AndyJ]

Hi Cheryl,

Am I right in thinking that this renders the copyright infringement claim invalid as my husband did not use the image from the PA Images website, but one that someone else had already altered.

If the altered image was being used under a licence supplied by PA then the alterations may well have been authorised also. The copyright in the PA image would have remained despite any additional wording, so I'm afraid the claim remains valid. It would equally remain valid if the picture had been used by the other person who added the wording without a licence.

He removed the image straight away last September after receiving the first e-mail, by which time the message was out of date anyway (and it’s unlikely anyone ever saw it).

Clearly their claim relates to the period before the image was taken down, and since PicRights are more interested in making money out of the claim than they are in seeing an end to the infringement, this fact will have little bearing on their pursuit of the claim.

You don't mention if you have found out what the standard fee for a licence from PA would have been. If you are able to find that information then it should form the basis of any counter-offer. As you are probably aware the original sum demanded by PicRights will no doubt represent several times the actual market rate for using the image in the way it was used on your husband's website. While there is nothing illegal in such practice, it remains the case that civil justice only seeks to award a claimant the amount he would have received if the correct licence had been obtained by your husband prior to using the image.

Sadly you can't use any of the exceptions to copyright, such as the one for reporting current events (section 30 (2)), because no acknowledgement of the source was given, and in any case the news reporting exception excludes the use of photographs. On that basis I think you have little option but to continue negotiating with their solicitors. Make it clear that you know that the court will only award damages which reflect the true market value of the image and that there are no realistic circumstances in which additional damages would be applicable (the swift removal of the image counts in your favour in this respect). Therefore it is not in the claimant's interest to run up large legal costs which would not be recoverable through the IPEC small claims track. A fair settlement is therefore in everyone's interests. If the solicitors insist on adding in administrative charges and any legal costs, you are entitled to reject these as you are under no obligation to meet the claimant's costs in processing the claim, and as I have mentioned, the rules of procedure for the IPEC small claims track do not allow such legal costs to be awarded against the losing party except in very exceptional circumstances. If the matter went to a full hearing, at most the claimant could ask the court to order the payment of the court fees and his reasonable travelling expenses on the day of the hearing. Since PA media's offices are in Paddington and the IPEC small claims court is in the Royal Courts of Justice in the Strand, these travelling expenses should be a Zone 1 tube ticket (around £5).

Unfortunately as I am not your solicitor I can't offer you detailed advice on how to conduct your negotiation or any subsequent litigation. But hopefully with the information given here you will be able to make a meaningful response to the solicitors. However I am duty bound to say that you should at least consider instructing your own solicitor if you feel at all unsure about how to proceed. If you do decide to do this, make sure you obtain a detailed breakdown of the cost of doing this before going ahead and handing over the matter to them, as it could be very expensive if you don't set clear limits on what legal help you need. A letter in reply to Burness Paul from your solicitor could set you back £300-500; a letter you write yourself, with advice, will cost rather less.

Good luck.

[Claw2321]

Thank you so much for your prompt response Andy J, yes, my husband has looked previously what it would have cost for the image, I think it showed a yearly fee, so it would be correct for him to calculate a proportion of this based on how many months the image appeared on his website would it.

The £506 they are trying to claim they stated was for use for a year although if he had have given in and paid straight away they were stating that he could not use it for a year, it had to be removed from his web site straight away ( which it was, last September).

I’m more clear now on what to do, thanks to your advice.
Regards
Cheryl L

[Claw2321]

A couple of other things Andy - does the fact that the image on the what’s on website had share buttons for Twitter, Facebook etc make no difference, it appeared an invitation to share the image.

Also, in the solicitor’s letter it states that a settlement and release agreement needs to be signed. Confirming that no further copyright infringements will be committed, does this have to be signed, it states that signing it will have legal consequences and independent financial advice should be sought.

Pic Rights are also calculating the figure as though the image was being used by a Company. My husband was doing graphic design work on a self employed basis up until 2019, earning next to nothing, but his website looks very professional, so I suppose we need to emphasise that the website is just a personal website in support of the counter offer? No profits have been generated by using the image ?

Thank you
Cheryl L

[Claw2321]

Sorry Andy, just one more thing, in calculating what the correct usage fee would be on the PA images website, we are unsure what to class my husband’s use as, with it being a personal website to show case his own design work - PicRights class it as ‘marketing/promotional collateral - website’. A cheaper option is ‘editorial’. Would appreciate your advice once again.
Thanks
Cheryl L

[AndyJ]

Hi Cheryl,

When looking at the market rate for a licence to use the image, which would form the basis for a counter-offer, you have look at the conditions on offer on the PA Media website. While your husband may have only needed (and in fact used) the image for a short period of time, if a short term licence was not available then I don't think there's much mileage in trying to argue this. That leads into all sorts of hypothetical scenarios which aren't helpful since no direct evidence can be provided about what each party would have done in the particular circumstances. For example if the rate for 12 months was quoted as £500 then I'm guessing your husband would not have gone for that image and no licence would have been sold. However that line of arguement is unhelpful when trying to establish the appropriate licence value, based on where things stand today. The next issue concerns the type of usage. Unfortunately the terms promotional and editorial are both flexible and it is hard, at this distance from the actual usage, to say how your husband's usage should be classified. If it was to promote the clap for carers campaign then that suggests that it was promotional, and if it was to illustrate your husband's skill as a web designer then that also suggests it was promotional use. On the otherhand if he had written a blog piece which discussed the clap for carers campaign more generally, and the image was used alongside the piece as an example of how others were promoting the campaign, without necessarily supporting the issue himself, that might well constitute editorial use.

As for signing the release letter, this is fairly standard practice, and like other factors in the settlement, is one of the cards held by the claimant, which could be discarded if all the other elements in a satisfactory settlement were achievable. Legally speaking the settlement could go ahead without it, but lawyers like to have all the i's dotted and t's crossed. By way of comparison, if the matter went to court the claimant would only be able get the same effect by asking the court to make an order enjoining your husband from using the image again on a future occasion. (Since you are dealing with a Scottish firm of lawyers, they would refer to this as an interdict rather than an injunction, but it's the same thing). The court would be most unlikely to grant this unless there was clear evidence that, without an injunction, your husband fully intended to carry out a further infringement. Since the claimant would have to pay an additional court fee to make this application for an injunction, they would be unlikely to do so if they knew their chances of success were slim.

The issue of whether your husband should be treated as if he was a large company or a self-employed web designer again goes back to the terms offered on the PA Media website. The more usual basis for calculating the volume of a licence is based on the anticipated number of hits on the website rather that the size of the business per se. The fact that the website has generated no profit through the use of the image has no direct bearing on the standard method of calculating damages, but it does mean that an alternative method of calculation known as an account of profits is unlikely to advanced by the claimant.

Finally, I don't think you can argue that having share buttons of the what's on website somehow excuses the copying of the image. Even if we assume that the photograph was being used there with permission, the licence is unlikely to have included the ability to sub-licence the image. On that basis the owner of the what's on website did not have the authority to allow it to be shared, irrespective of what was actually indicated on their site. As copyright infringement is a matter of strict liability, the belief of the person alleged to have copied a work is immaterial.

I hope I have covered all your points.

[Claw2321]

Thank you AndyJ yet again for your advice.
There is a 6 monthly fee option on the PA images website which at current prices is £300 and something for promotional /marketing use and £94 plus VAT for editorial use.
Ok, I guess it is a case of negotiating the lower figure as the image appeared on my husbands website for approx 5 months so definitely falls within the 6 month usage band, and hope that they don’t consider this issue to be able to generate further revenue by pursuing it in the courts, although I’m starting to think that that might be the fairest option.
Your advice has been invaluable.
Kind regards
Cheryl L

[DaddyJ]

PicRights use clever software to identify old blog posts that use obscure pictures and then auto-email the companies, using tracking software to build up a profile of the people who open the email, so they can keep emailing them. After identifying receipt of email but no engagement, they send letters to dupe the companies into thinking they have a serious adversary who will go all the way to collect exorbitant fees. These fees, they say will increase as legal costs get applied if no action is taken.
Its all a lie. Don't waste your breath. Put the emails in spam and the letters in the bin.
Over many months, maybe a year, we received emails and letters from PicRights telling us we had breached copyright on a blog post 3 years ago and owed them £350. There has been scant detail on the owner of the copyright, just some reference to a picture agency that anybody could have found using Google picture search. No information on the photographer, or who commissioned the photo etc. Like others, we eventually got a letter from Burness Paull LLP. Now I've had threatening letters from solicitors in the past which are always addressed to me, and they clearly come from a named solicitor. The letter I had from Burness Paull was nothing like it.
I've now built up a picture of PicRights. Their mission statement: extort money from individuals and small businesses that don't have access to consistent legal advice. Use copyright as its obscure and there are bogus legal experts on forums who are keen advocates for the payment of copyright fees. Write fake reviews on Trustpilot and lies on forums. Use case management to project a professional and consistent image, and have case handlers who always negotiate the price down. Bingo, created an income stream. Hang on they said, we could extort more money if we got a law firm to write a letter. Somebody has a contact in IT at Burness Paull who can get their hands on stationary and create a group name on their mail server; wallop, we can extort even more money.
PicRights lie on Trustpilot. They impersonate and lie on forums; my favourite "I phoned AP who told me they employ PicRights to take care of infringement problems". They are a scammer in plain sight. They have no authority over the images they pursue. Don't take the bait; DO NOT RESPOND to them. They have no right to know your name. Do not pay a penny. Hold your nerve. Don't get angry; relax, pretend it never happened, because nothing will (apart from more emails and letters which you promise me you will put in the bin)

[roger.t]

PicRights use clever software to identify old blog posts that use obscure pictures and then auto-email the companies, using tracking software to build up a profile of the people who open the email, so they can keep emailing them. After identifying receipt of email but no engagement, they send letters to dupe the companies into thinking they have a serious adversary who will go all the way to collect exorbitant fees. These fees, they say will increase as legal costs get applied if no action is taken.
Its all a lie. Don't waste your breath. Put the emails in spam and the letters in the bin.
Over many months, maybe a year, we received emails and letters from PicRights telling us we had breached copyright on a blog post 3 years ago and owed them £350. There has been scant detail on the owner of the copyright, just some reference to a picture agency that anybody could have found using Google picture search. No information on the photographer, or who commissioned the photo etc. Like others, we eventually got a letter from Burness Paull LLP. Now I've had threatening letters from solicitors in the past which are always addressed to me, and they clearly come from a named solicitor. The letter I had from Burness Paull was nothing like it.
I've now built up a picture of PicRights. Their mission statement: extort money from individuals and small businesses that don't have access to consistent legal advice. Use copyright as its obscure and there are bogus legal experts on forums who are keen advocates for the payment of copyright fees. Write fake reviews on Trustpilot and lies on forums. Use case management to project a professional and consistent image, and have case handlers who always negotiate the price down. Bingo, created an income stream. Hang on they said, we could extort more money if we got a law firm to write a letter. Somebody has a contact in IT at Burness Paull who can get their hands on stationary and create a group name on their mail server; wallop, we can extort even more money.
PicRights lie on Trustpilot. They impersonate and lie on forums; my favourite "I phoned AP who told me they employ PicRights to take care of infringement problems". They are a scammer in plain sight. They have no authority over the images they pursue. Don't take the bait; DO NOT RESPOND to them. They have no right to know your name. Do not pay a penny. Hold your nerve. Don't get angry; relax, pretend it never happened, because nothing will (apart from more emails and letters which you promise me you will put in the bin)

At last someone who has figured it out. Bravo. I told them I'd see them in court. All went quiet over there. Serve them with a DSAR if you've got the time and energy

[Retiring65]

Hi there

My business partner and I run a consultancy and after 2 years of poor business resulting from the pandemic, before Christmas we had taken the decision to shut our consultancy down . The company is planned to close in March, so 8 weeks from now.

I have read the posts on here with interest as I received 2 e mails last week from Pic rights. They claim we have used 7 images belonging to AFP and Reuters. These images were in pdf files, which were weekly PowerPoint blogs we wrote a few years back and embedded as links on our website. The images were used to compliment the text we had written, so I believe our use is editorial. Some of the images were cropped. We never made any money from these weekly blogs. The main pages on our website contain images all licenced from a photographer we know.

My question is, as the images Pic Rights has located were used by the company and given that the company will cease to be trading next month, are we still liable to be pursued by these people? Do Pic Rights have any recall on the former Directors if one retires and one goes on to work for another company?

All advice gratefully received.

[AndyJ]

Hi Retiring65,

The substance of your question is about company law which way outside the purpose of this forum and following what I say below, you should consult a solicitor on that aspect if you need further advice. But since the claim here is based on the alleged tort of copyright infringement I'll start the ball rolling. My answer is based on two assumptions: that the company is incorporated (ie it's a Limited Liability company) rather than a limited liability or other type of partnership, and second that the winding up will be a members' voluntary liquidation. If one or both of these assumptions is wrong, please disregard much of what follows.

The claim results from an alleged copyright infringing act which occurred while the company was trading normally and therefore it becomes a liability to be taken into account during the liquidation process. However the claimant has to get in the queue along with any other creditors and does not get preferential treatment assuming that the company still has assets to pay all of its creditors at the time of winding up. The winding up of a company does not automnatically stay (ie halt) any litigation which is already in train, but it usually bars the company from being sued once it technically no longer exists as a legal entity.

And directors of the company are not automatically relieved of all liability for torts committed by the company. If there is evidence of misrepresentation or dishonesty on the part of one or more of the directors which led to the tort arising then they can be held to be joint tortfeasors along with the company. In copyright cases this tends to occur when the controlling mind behind the alleged infringement is obvious* and it would not be in the interest of justice to just blame the company, especially if this would deny the claimant any chance of recovering damages. On the other side of the equation, a claimant would need to think long and hard about the wisdom of bringing a copyright claim in court against a company that was in the last stages of liquidation, since they might face all the costs associated with bringing the claim with no real prospect of receiving damages. A court would not award damages against a defunct or bankrupt company if it alone was found to be liable for the tort. If any of the correspondence from PicRiights is addresed to an individual in the company it should be returned to them with instructions that the claim should be addressed to the company. Acting in semi-personal capacity could leave you open to unnecessary harassment once the company has ceased.

I hope this helps, but please don't assume that this is legal advice. It's not and if you require that for this or any other aspect of the winding up, make sure you consult your own solicitor.

* To take a simple example of this, if an employee like a graphic designer in the company's art department copied an image from the internet into something he was working on, liability would vicariously fall on the company, not the employee. However if the managing director came to the employee and said "just get me an image which I don't have pay for, I don't care how you do it" then he would probably be found jointly liable for the resulting infringement along with the company. Where it is said there was an innocent mistake which led to the tort, the issue is a lot less clear cut.

[Retiring65]

Thank you Andy J

That is very helpful. It is a limited liability company and being wound up by mutual agreement of the Directors.

So far I have received Pic Rights e mails to my work e mail address . The e mail also contains my name and the company mailing address on the e mail so that if they decide to post anything it will most likely come to me.