Image use on website

[Branscombe]

Hello, new to this as just received an email claiming that I have been using an unlicensed image on my Handyman business website. Email came from someone called Jim Barnes at PicRights.com requesting I pay £503.00 to settle and to also remove image from site.
Image has been removed from site as the business is now closed (lack of business due to lockdown)
However when the website was created a few years ago it was done using Wordpress and the image in question was part of their supplied imagery and was noted as being free. I fail to see how I can then be chased for a payment.
Not sure on best course of action to take with this so thought I would ask for some advice.

Many thanks

[AndyJ]

Hi Branscombe,

Sorry to hear about your experience and also the fact that you have had to shut down your business for now. You may find it helpful to take a look at some of the other threads here which deal with claims from PicRights, and also those involving Pixsy as they operate in a similar fashion.

It sounds as if any claim PicRight's photographer client may have will be with Wordpress, rather than with you. Have you tried looking to see if the image is still available via Wordpress? If it is still there I would simply send the link to PicRights explaining that the image is/was being made available under licence by WordPress, and thus, if there is any claim arising from this they should take up the matter with Wordpress. I suspect you may have already looked for the image and been unable to find it. It then becomes a matter of your word against the claimant, and since copyright infringement is a matter of strict liability, you are in the weaker position as the photographer doesn't have to prove an negative, namely that he didn't make the image available to be freely used by others.

I would start off by looking at the metadata embedded in the image if you are able to do this, to see if the photographer is credited, unless the PicRights email has already identified the photographer. Then try and locate other instances of the same image being used elsewhere on the internet, by doing a reverse image search such as Google image or Tineye. This may lead you to other instances of WordPress users in a similar situation to yourself. Obviously their testimony about how they came to use the image will support your own version of events, and weakens the PicRights claim against you personally. The reverse image search may also show if the image is being made available with a licence, perhaps through a picture agancy such as Getty. If so, make a note of the fees quoted there as, if it becomes necessary to negotiate a settlement, the actual market rate for the image provides a starting point for any counter-offer. You will found out more about that side of things by reading the other threads I mentioned.

But hopefully you won't need to worry about counter-offers as you will be able to find evidence that your use was authorised by WordPress and thus you were acting in good faith, and would have a complete defence under section 23(a) of the Copyright, Designs and Patents Act 1988.

[Branscombe]

Hi Andy
Many thanks for your thoughts on this and I will do some research on wordpress but the image could easily have been removed or changed from being free.
It is a very odd amount they are requesting and is just over the small claims court minimum I believe. I had been speaking to a guy from Mercedes Chauffeur Services who has similar issues about 6 months ago, and he recommended I ask on this forum for advise and did specifically mention you as having helped him a lot.
In your view if I cannot show that the image was free when I used it, and it was only a slider on the website rather than a background/banner etc, how would you suggest I proceed ie just let it go to small claims court and see what they say, offer a small counter offer or just leave it and see what they do.

[AndyJ]

Hi Branscombe,

Yes, FelixCulpa (aka the Mercedes Chauffeur Services guy) did mention that he advised you to come to the forum. Let's hope we can help.

If you are unable to find supporting evidence for your assertion that the image was offered for free use on Wordpress, then the claim is more difficult to rebut. But that doesn't mean that you need to pay the fee of £503 being demanded by PicRights, if this is unreasonable in the circumstances. You only need to consider paying the market rate you would have paid had you obtained the image with a licnece via whatever agency is offering on behalf of the photographer. As you say the image was on your website for 'a few years' the total amount payable will need to reflect this, if the fee was an annual one. That is why I suggested trying to find the image on the internet as it should give you an idea of the current market rate for that particular image. However it is not unknown for an image to be released with a Creative Commons licence, which is then expropriated by someone else who passes it off as their own work and demands fees from those who are using it legitimately under the terms of the original licence. Therefore PicRights need to provide credible evidence that their client is the actual copyright owner.

The small claims track for copyright (and some other intellectual property) cases is a specialist court which forms part of the High Court. It can deal with claims up to £10,000 in value, and so if it was to go to court (which I doubt) that is the most likely forum for deciding this case. However I would suggest that opting to go to court at this stage would be far more costly in terms of time, money and stress, than settling the matter by negotiation.

But all of that is based on the assumption that there is no evidence that the image was offered by WordPress at the time your website was created. You could approach WordPress if you are reasonably sure of your facts. They should have records going back to the period concerned, and even if they don't there may be a paper trail within the organisation which covers the acquisition of clip art images such as the one in dispute. And of course there is also the Wayback machine to consider. According to their portal, the website WordPress.com has been archived 465,266 times between July 23, 2004 and January 8, 2021. I don't know if the complete website was archived in each occasion, but it may be worth taking a look for the period when your site was created.

[Branscombe]

Hi Andy, I have done some research into this and have found the image on Stock Adobe. It shows it as having a license fee of £47.99 + VAT and as far as I can tell it is not an annual fee. I have copied the ulr for your reference;

https://stock.adobe.com/uk/search?filte ... =358128134

Totally agree about not wanting it to go to court and in meantime will look more into wordpress situation.

[AndyJ]

Hi Branscombe,

Yes if you think that Adobe's standard licence is (or would have been) approporiate for the use you made of the image, then that licence was perpetual, meaning that the fee is a one-off payment (see para 3.1 of the Adobe licence terms). Looking quickly through the other terms I think that this would have been the most appropriate licence, but as I don't know how the image was being used or the exact nature of your website, I have to qualify that by saying I may be completely wrong and in fact you would have needed either an Extended, or (less likely) a Comp, licence.

So assuming the standard Adobe Stock image licence is the correct one, and you are unable to find any evidence to support your original belief that the image was provided without a licence by WordPress, your best course of action may be to make a counter-offer based on the £47.99 fee. Check the other threads on this topic for how to phrase your response. The main thing to stress is that if you remain resolute and demonstrate that you understand the extent of your liability in a civil claim, you should succeed in getting PicRights to settle on terms which are fair to both you and the copyright owner.

[Branscombe]

Hi Andy thanks for continued responses on this; so in theory then could I buy the license off Adobe now for £47.99 and then I can say I have a license, or would this not cover for the initial use.

[AndyJ]

Hi Branscombe,

you could certainly get a licence now to cover any future use (if you decided to re-start your busines at some stage) but it won't cover you for any past use. However that fee establishes the market rate for that particular image and so you could use the amount as the basis of a counter-offer to get PicRights off your back. Unfortunately you are liable to pay separately for the past use, and it is just unfortunate that buying a perpetual licence now wouldn't have any retrospective effect.

[mattp76]

Hi Both,

Really interested reading through your experience there with PicRights. Turns out I recently received an email from this same Jim Barnes asking for £270. In my case I picked up an image from a Google image search, I was sure at the time it was not under any copyright - according to Mr Barnes it belongs to PA Images. Practically all my images are sourced via an Umbraco stock image package so of course, if his claim is valid, I would kick myself. Anyway, image in question was barely visible, on site for barely 3 months, approx 120x120px. My site is free (makes no money) and image had zero commercial interest or value to me. I removed immediately and apologised. I contacted PA Images to verify because this Jim Barnes does not seem / sound like a real person, so my worry is this is a scam (I still think that). I had someone from Alamy reply, who seemed normal. They said the fee is what what I would pay for a license on their site, so I checked their site and that image is £37 (perpetual). This makes 3 months, non commercial usage sound negligible. Another thing, on closer inspection of their ‘proof’ photo my website looks manipulated. Fonts and structure all wrong, and grainy at best. So as you can imagine, not happy and refuse to meet this ‘random’ number. Especially into their dodgy Swiss bank account. I have offered market / counter 37 but thinking they will keep on. Any words of advice? Hope to hear from you.

[AndyJ]

Hi mattp

PicRights are a legitimate company, although some commentators feel that their business model is pretty unsavory, perhaps on a par with the claims management companies who used to push PPI claims. If you look through some other threads here you will find some photographers who are prepared to defend the tactics which companies like this use, and I don't deny for one minute that infringement is a major problem for many freelance photographers. Whether the service that PicRights offer is quite as useful to large companies like PA or Reuters etc is more debatable. I have no idea if Jim Barnes is a real person or not.

I think that the way you have handled the matter of this claim so far is spot on.

[mattp76]

Hi Andy,

Thanks for coming back and the words. Not sure if you have dealt with this Jim Barnes before, but the way he answers / interacts is very unusual to say the least. He answers everything with 'regarding your comment' ...... and then kind of default / canned responses. So hard to tell if you are dealing with a human being or some kind of AI program. Also, if they are based in Switzerland ... or somewhere in Europe, Jim Barnes strikes me as a very generic kind of name. I should have replied as John Doe. To be honest, replying was my big mistake here. Once I engaged, they wouldnt stop coming back and in the end it got to much. This is their tactic. Pressure, bullying, big words, lawyers, courts etc etc ... scare tactic. He ignored all of my questions about the authenticity of their 'proof' screenshot. This was clearly manipulated, fonts, structure, layout all different. Just the domain at the top was mine, but I am sure a jury would laugh at it. With their advanced crawling techniques, software, ability to catch unknowing poor sods like me out, and they cant even take a clear screenshot. Also I wanted to see proper evidence my image was in fact the original, these people should be able to analyse the image - compare meta tags, base 64 encoded value ... and present this as evidence the image was the original. I am not so sure mine was. Word against word ... but these guys need to prove it properly, not offer to crappy manipulated grainy screenshot.

Facts in my case are my site is non commercial, makes no money (free to list site), is in fact a hobby playground I used to enhance my skills as a developer. If one day I can monetize, then great! .... but since their image was on site it make zero dollars and was of zero commercial interest or use to me. The image was on the site for just over 3 months. Non commercial 'perpetual' image cost $35.99. So my counter offer was to give them this. 3 months non licensed usage is negligible. So you hope for common sense, human beings being able to make correct decisions on this. In the end they argued back my site is commercial ... of course they would say that, no evidence to back up their claim. They have no idea. This Barnes character kept ignoring my questions, and throwing bank details at me. Non stop. Anyway, their fee for settlement was not a great deal, and simply dont have the time to be dealing them so surrendered it (very reluctantly) just to get them off my back. Their tactics won.

But its not over. Determined to make life difficult for them and will be reporting their behaviour and tactics to the anti fraud / cyber crime units. They might be a legit company (working out a dodgy swiss address - happy to share it if anyone wants) but their tactics are crazy bad. We need them investigated. I know I am not the only person to deal with them. Their business model will be to carry out this copyright trolling ... and throw their weight around demanding completely unrealistic fees. If anyone else encounters them, feel free to contact me .... or do what I didnt, and block / filter them out - do not engage.

[altruistic_ranger]

They will need to prove what material damage their client suffered as a result of your infraction (any communication should be headed 'Without Prejudice'). In the UK they would need to file against you through the UK's Intellectual Property Enterprise Court Small Claims Track. The cost of mounting your own defence is negligible (really, like £25). The UK takes a very dim of these types of 'de minimis' actions i.e. where the impact of the breach is negligible. Good faith and proportionality also matter. I think it is worth making Action Fraud aware of their activities, this is cyber bullying and the claims in many cases so specious as to amount to nuisance. Report them online here: https://www.actionfraud.police.uk

[AndyJ]

Hi and welcome to the forums.

We try and give accurate advice here and so I should point out that a claimant does not "need to prove what material damage their client suffered as a result of your infraction". Copyright infringement is a matter of strict liability. This means that unless a defendant can prove to the court that one of the statutory exceptions for fair dealing applies, or the alleged infringement is truly de minimis, he will be liable.

I'm not sure what you are referring to when you say the cost of mounting your own defence is negligible, "like £25". It actually costs you nothing to file your defence and if you represent yourself, again, that costs nothing in terms of court fees etc. More details about this here.

And finally, what ever you think of these claims management companies, and I don't like their tactics either, the way they operate is not fraudulent and so you would wasting your own and the police's time by reporting them to ActionFraud.

[altruistic_ranger]

I was referring to the Hearing Fee, which is £25 for claims up to £300. The full list of fees including the mediation service can be found here https://bit.ly/34Nqdga

[altruistic_ranger]

It depends on individual circumstances, the claims made and the compensation demanded. We were recommended by a governmental agency to report it to Action Fraud under the extortion provisions though the online reporting tool.