PicRights Solicitor Letter Demanding Fee For Alleged Image Use

[Akanaten]

Hi everyone.
New to the site, so I hope I’m in the right place for my question?

As I’ve noticed already, Picrights is all over the place, and must admit, till one hour ago, I had never heard of them. Till an email arrived. I thought it was spam till I did some checking.
The picture they say I’m in breech of copyright over, hasn’t been on my web site for over 15 years! I have’nt used my web site or updated it since 2008, and only did a quick check in 2014. That picture is no longer on my site and hasn’t been since before 2008. So how do I stand?
Have they found a previous page from my old web site? I can’t see how though.

I appreciate any help indeed.

Thank you.

Ray

[AndyJ]

Hi Ray,

It will depend on where PicRights found the image. If, for instance, it was on an archived copy of your website, say on the WayBack machine then it is highly probable that they will be time barred from making a claim due the statutory claim period of six years having elapsed. Put in simple terms, this scenario would mean that your alleged infringement ceased more than six years ago, and the only existing evidence today resides in a place for which you are not legally responsible, then you are not liable. Since the claimant failed to bring a claim within the 6 year period set by section 2 of the Limitation Act 1980, he is now barred from doing so. The only way that a late claim would be possible is if you had concealed the original alleged infringement in a way that meant the claimant could only now discover it. Obviously if the alleged infringing image was on your website at certain point in time, it would not have been concealed, and so the claimant cannot avail himself of that exception. He cannot make a late claim just because he wasn't aware of the alleged tort at the time.

The only other scenario which I think may be applicable here is if a copy of the alleged infringing image was recently found still on the server hosting your site, even though you had deleted* the link which caused it to be shown on the website. This is somewhat analogous to deleting a document on your home computer, but a copy of it remains in your trash folder. Such an image would theoretically be discoverable by a third party bot provided that the exact name of and path to the image file was known, which seems to be highly unlikely. And even if this was the correct scenario which led to this claim, I think you would have a reasonably strong defence that you ceased making the image available to the public in 2008 and that any remaining copy of it existed purely on technical grounds, which if that was accepted by a court, would be lawful under section 28A of the Copyright Designs and Patents Act 1988. I am not aware of a court case in which this particular argument has been used successfully, but something similar was at issue in an important case heard by the UK Supreme Court in 2013, known as Public Relations Consultants Association Limited v The Newspaper Licensing Agency Limited where it was held that temporary copies made for technical reasons were not infringing, following a referral to the Court of Justice of the European Union (Case C-360/13). Not only would this scenario seem much less likely, the defence to it is also more doubtful. The reason for my doubt is that the period of limitation (the 6 years) only begins to run from the point at which the alleged harm (the infringement) ends. If the copy of the image is still on the server today, then technically the alleged infringement is still occurring, hence the limitation period has not yet started. You would only be off the hook if a court decided that the fact that the image was not ordinarily accessible by the public meant that the copy was not an infringing one. Section 28A would seem the best reason for such a decision.

I assume that PicRights have not said exactly what evidence they have to support this claim. It seems that the first scenario seems the more likely one, in which case you could effectively ignore the claim on the basis that it is time-barred. However that might be unwise if there is some other basis for their claim of which you (and I) are not aware. It is important that if you do decide to correspond with PicRights, that you do not make any admission about liability. At present they face the formidable task of not only proving that the alleged tort occurred within the last 6 years, but also that you were liable by virtue of not having a legal defence due to a fair dealing exception. You should not say anything which assists them! Use terms like 'the alleged infringement of copyright in the image on my website' or 'my alleged infringing use of the image' etc.

Good luck, and please let us know how you get on.

* Without getting too technical, when a web crawler or bot looks at a website, it examines the HTML code for instances of the type of content it is looking for. So for instance if the code for your website once contained a link to fetch the image from a particular storage location, and when you updated the website, that code remained on the server, but de-activated, it is perhaps possible that this would be sufficient for a bot to discover the old image.

[altruistic_ranger]

PicRights are not solicitors. They are a predatory rights management agency (see 'copyright trolls') who operate through fear and intimidation. They will need to prove what material damage their 'client' has suffered. Invite them to file a claim against you through the UK's Intellectual Property Enterprise Court. The Small Claims track should cost you about £25 to defend. If it comes to it, go tell your story. UK Courts take a very dim view of this type of trawling.

Operating in good faith would mean that you might be served with a takedown notice assuming it was still live, and that would be that. Good faith is a key principle here.

Many infractions I've seen discussed here are so marginal as to be tantamount to cyber bullying. Action Fraud UK describes fraud as follows: "Fraud is when trickery is used to gain a dishonest advantage, which is often financial, over another person." If the demands seem disproportionate or harassing, please report them to Action Fraud.

[MelanieJ]

Hi,
I'm a new user with the same issue as many in this thread.

I have a business website and am very careful about the images used, making sure they are licensed (I have subscriptions to do this).

I recently received an email from PicRights saying we had used a Reuters image without permission. I checked and found the image they referred to and immediately removed it completely from our website.

The image was included in a brochure from 1 of our suppliers for a product that we sell for them. The same image was also used in a video (made by our supplier also). We published the images from the brochure and the video, in good faith to our website.

Now I realise that was a stupid thing to do as the supplier is in China and in all probability didn't own the rights. Lesson learned!

My question is this - I explained to PicRights how this had occurred and over a few emails offered to pay £100 (they wanted £435). We are a small family company, not a large corporate and we don't have money to spare to pay this.

I agree that all images should be licenced and expect to pay something.

The image was used as an example of what the machine we were offering could produce.

From your experience, am I likely to have to pay more than I have offered and would a court accept that we used this image without licence unintentionally and had offered to pay for the use?

I'm more than a little worried by their threats and would appreciate any advice.

Thanks
Mel

[AndyJ]

Hi Mel,

Using an image (ie copying it) without permission is a matter of strict liability where of primary infringement is alleged. This means that unintentional or innocent use does not absolve you from liability. However that liability only extends to putting the copyright owner in the position he/she would have been in if the correct licence had been obtained in the first place. In other words you are only liable for the normal market value of the licence. If Reuters' standard licence for this image was £435 (which I very doubt it was) then that is what you would be liable for under a civil claim. However if you can find the same image being offered at a much lower rate on another picture agency site as seems to be common with Reuters' images, then that rate becomes the market rate, on the basis that if you had sought a licence you would naturally have gone for the cheaper option.

Sadly PicRights don't recognise this approach as it would mean that they can't make any money from such a scheme and still be able to reimburse their clients. Hence they will hold out for the full amount of their demand for as long as possible, until such time as they see it is no longer worth pursuing the claim. Yes, there will be plenty of threats along the way, but provided that you understand your rights legally if this went to court, you may be able to get them to come down to your offer.

It is arguable that the type of infringement involved here is actually so-called secondary infringement, namely possessing a copyright work in the course of business (see section 23 of the Copyright Designs and Patents Act 1988) because you were effectively provided with the image by your suppliers, and since you had no reason to suspect that it was an infringing image you would not be liable for any damages. However I think you would need to obtain legal advice before pursuing that type of defence in court.

[TWLEthiopia]

Hi everyone,

Very similar situation to everyone else here. We are a charity and PicRights have contacted about a photo that was used on one of our blogs in 2012. I can see the pattern of advice here - thank you very much Andyj - which is already very helpful.

What I'm wondering is how I find out what the photograph is actually worth, in order to start the negotiation process. It is apparently an Associated Press photo. I have tried a google reverse image search but online 3 links came up, one of which was our blog (the photo has now been removed), the other two are a local.gov.uk pdf which I can't see the photo in and lawinsider.com which isn't responding.

Where can I go to find the original photo and it's copyright principles? Or can I throw this back to PicRights to ask them to prove to me that it's an Associated Press photo?

Thanks in advance! Caroline

[AndyJ]

Hi Caroline,

If you can't find the image on the AP site or an associated stock agency like Alamy, Getty or Shutterstock*, try looking for another similar image of the same subject. This may give you a guide as to the likely market value. However, if this started out life as a news picture, it may have initially had an inflated value when it first appeared (due to its news worthiness or topicality) but that will now have evaporated after10 years. By all means quiz PicRights on the provenance of the image but I doubt if that will help you much with establishing the current market value for a licence.


*You can find a longer list of picture agencies here

[TWLEthiopia]

Hi everyone, just to follow up on this, in case it is helpful to others - we went back to Picrights, firstly for evidence that the photo was an Associated Press photo, which they did (a signed letter from the AP's VP of Global Business Development). Then we went back and asked them to tell us what "Associated Press licence fee and running licence cost for this photo" was. At that point they came back and said they'd made an error in the fee calculation. Suddenly the fee they were asking for went down from £553 to £124.

Their wording was "After further review of your case, I can see the valuation is incorrect, your case was valued as NPO/Marketing/Promotional Collateral - Website’ licence. Up to 5-year use – for your usage would have cost £ 553. I have corrected the valuation, please see below for valuation explanation. For your use, you should have purchased ‘NPO/Digital and online – Editorial Website’ licence. Up to 5-year use – for your usage would have cost £ 124. After careful review, The Associated Press (AP) is willing to settle the matter for £ 124. This offer is based on the licencing fee for the use of the imagery on your website."

So I would reccomend to anyone that can't find the fee for the photo themselves to throw it back to Picrights. Good luck!

[AndyJ]

Hi Caroline,

Thanks for coming back to the forum with the update. And well done with getting the amount reduced.

[Hobbes22]

Feels a little late now but for anyone else searching the matter I received an email from them for a picture I do have express permission from the image licence holder to use. I told them this and they told me I was wrong and continued to demand payment, Very much seems like they are a bunch of chancers.

[IPMatters]

Very well put Andy J.

[ScruffyDuck]

Please accept my apologies in advance if I should have created a new Topic. My defence is that my post is on the same subject as the others in this topic.

First I would like to thank y'all very much for the posts here and the information shared. I recently received one of the fabled emails from PicRights (PR) and at first had no idea how to respond.

Checking the information they provide does indeed show that I have unintentionally used a copyright image. There was no indication that I could find at the time that is was not free to use. What is most irritating is that the image was used as a filler alongside some text to break it up. My website is related to aviation and the image is a wide view of an airport. Frankly any airport image would have done and there are thousands to choose from but I picked one that is copyright I am definitely not a willing buyer and had I known it was copyright I would not have paid any license but used another image.

I immediately removed the image on receiving the email; and found it on the photo service. It is licensed by time and can be for one year, two years or up to five years. This generates the first issue of getting a fair market value to negotiate from. I checked the Way Back Machine and a couple of other similar services (which seem to use the WBM as backend). In any case the earliest snapshot of the page containing the image is dated 25 Oct 2020. I know this does not necessarily represent the date the page was first uploaded but it is close within a month or two I think. So I used the image without license for about 18 months. Therefore the license should cover that period and the nearest is two years.

My first question is having established the license cost for one year and two years should my offer be based on two x one year or the two year. Obviously two x one year is more expensive.

The payment required by PR to satisfy the infringement is clearly inflated (more than double what I would offer)and I intend to ask them for a detailed breakdown of how they reached the number.

I also thought to make a counter offer in the same time as requesting the breakdown to show good faith and that I wish to negotiate a settlement expeditiously. This offer would be the two year license fee plus15% of the fee for incidental costs which may accrue to the claimant (Photo Service). My second question is whether this is a reasonable strategy or should I ask for the breakdown and then respond with an offer when they reply?

My third question concerns loss of interest on the license payment. If the photo service received it before the license is used then they have the money and presumably could accrue interest on it. This is lost in late payment. I have not seen any reference to interest in reaching a settlement. Obviously it is a very small amount with low interest rates

My final question is whether there is any case where an offer would be time limited. I am familiar with commercial offers of service or goods where the 'quote' is timed limited but not in this situation

Thanks for taking the time to read this and for any feedback

Jon

[AndyJ]

Hi Jon,

I think your intended way of approaching this issue is the correct one. Assume that, in the hypothetical situation, you would have sought a 2 year licence rather than 2 x one year licences. If you submit your counter offer at the same time as asking for a breakdown of the sum in their demand you may add a further complication, since their breakdown may include some factor which you had not considered when making your offer, and necessitate making a revised offer which just wastes your time. So, either ask for the breakdown and then make the counter offer, or just make the offer and assume they would have sent you one of their typical breakdowns which is full of irrevalent items which you would then need to argument against.

As you say, the amount of interest due on a late payment is neglible, so I think you can assume it would form part of the 15% uplift.

As for how long an offer is valid for, this would need to be stipulated at the time of making the offer; there's no set duration. Effectively, imposing fixed duration is just a way of increasing the psychological pressure to settle quickly, and doing so usually favours the party with the better bargaining position. The implicit understanding is that the next demand/offer will be less good as far as the other party is concerned.

I hope this helps.

[ScruffyDuck]

Andy thank you very much for your quick and helpful reply.

I hope that I may take a little more of your time in whether my use of the image was editorial or not. The site is for a piece of software which is now entirely free to all users but at the time the image was used the fully functional software was free but with some paid for options. It became fully free in Oct 2021. If the image was found on the current live site then there is no commercial aspect to it. However on the Way Back Machine in 2020 and on the page containing the image is placed there is a reference to payments.

My initial process to determine a two year fee was via an option for Digital/Online and Editorial website. However there are other options some for online and other for physical use. Marketing/Promotional is probably the closest I can get to commercial use on the web. Of course the license fee for use in this way is a lot higher than for Editorial use.

Am I right in thinking that my use is less likely to fit into the Editorial use?

I hope this makes sense

Jon

[AndyJ]

Hi Jon,

Whether or not your site itself was or is for commercial purposes, (ie offering content which needs to be paid for) is less relevent than the purpose of the illustration. You mentioned previously that the image was used as a filler and in fact any similar image would have done just as well. That strongly suggests that the use was not editorial, where the image would have been chosen to directly supplement or illustrate the written content. A clear example might be a news item about a house that was damaged by a storm, where an accompanying image of the house could add descriptiveness, either to the extent of the damage or to the type of house concerned. A generic view of an airport (which anyone could conjure up in their mind) would not add anything to the text even if it was entirely about airports, let alone more general travel matters.

That analysis tends to suggest that if you had been going through the hypothetical process of licensing an image, you would have opted for marketing/promotional, rather than editorial as the appropriate usage category.