Another (sad) Picright story

[Thecoolguy]

Hi all,

A couple of years ago I wrote an article on a personal european blog blog which doesn't bring any income. I used a pic (back then I was not as savyy as I am now) on the article. A very short article with part of the pic in background (and thumbnail). I precise that my google analytics is terrible : maybe 10 or 20 people a week come to that blog. I never made money off of that pic (never sold it, nor it was in a commercial article selling anything).

Few years later (these days), Picright Europe (Switzerland) contacted me in the way they do. I removed the pic and let them now.
Ofc as you all know it is not enough for them and they are asking 300€.
Compared to so many horror stories I should be happy about this request. But of course I am not. I don't know where this number is coming from.
Made some researches and found the original pic, small size (the same as the one I used) for 150€ for standard editorial rights which I assume is the one which would suit to my situation.
The blury part for me is that this picture is "rights managed". I don't really know what it means. That being said when I click on "how can I use that image ?" a small popup windows says that "Standard editorial rights: Anyone in your organization can use it indefinitely for up to 15 years, worldwide, with unlimited disclaimer."

I have a few questions :
1. Does that mean that the true cost of that licence is 150€ up to 15 years of use ?
2. If I got it right so I assume that Picright is asking me : legal fee+their commission ? If I assume wrong and that this is 150€/year then their request would just cover the legal copyright fees (which I would find odd that they don't price more for their own profit).

3. I haven't replied to their email. I have a few options in mind :
a) don't reply as many people advocate doing. While I see why people would advise that, I am also a responsible person and believe in Law.
If I made a mistake it appears clear to me that I have to own it and assume. I think that it wouldn't be too difficult for me to do that since they only have my email and I don't live in Europe anymore (so unless they want to send Interpol, I don't see how they could reach me).
b) ask them to provide me the link of the picture with the licence fee (basically I play silly even if I found it) so that I can check where this price request is coming from.
c) Reply that I can't pay this sum cause I have lost a lot of business because of Covid (which is true) and let them reply.
d) Same as c) above but I counter-offer 150€ saying that this is the maximum I can afford. Issue

Any help would be appreciated. Thank you guys!

[AndyJ]

Hi Thecoolguy,

Your story sounds pretty familiar and typical for this kind of PicRights claim, although their demand seems to be lower than usual. If you have
read the other threads here on how to respond to PicRights claims you will know that we advocate using the standard fee you would have paid in the first place as the basis for any counter-offer to settle the matter. You are not obliged to pay for PicRights' costs or fee which is probably what accounts for the difference between their demand for 300€ and the 150€ standard fee.

I can't advise you on whether or not to engage with PicRights over this, although it does sound as if you are on pretty safe ground to just ignore them.

[mradamdfrench]

Sorry to hear this, Thecoolguy.

I have a related question. Id either of you could give any insight that would be much appreciated as, understandably, I do not want a similar case against me.

I want to use an 2D photograph/image of an old painting for a book cover, so commercially. The painter died in 1937 and the image of the painting is on Commons Wikimedia listed as in the "in the public domain in its country of origin and other countries and areas where the copyright term is the author's life plus 100 years or fewer". It also states in small that the file is free of known restrictions under copyright law included all related and neighbouring rights.

The original painting belongs to The museum of arts in Valencia. The photographer is unknown and is not listed. Links on page direct to the museum webpage.

Can I use this image commercially on my book cover or is there a possibility that the museum or photographer could claim infringement?

Many thanks in advance for any advice given.

Adam

[AndyJ]

Hi Adam,

As you have identified, the painting itself is in the public domain in the UK, (and in Spain also) because the painter (José Benlliure y Gil, maybe?) died more than 70 years ago, which as what EU and UK law provides for. The problem lies in whether copyright applies to the photograph of the painting. I imagine the photograph was taken within the last 70 years and so it is possible that the photograph may therefore attract copyright. However if this involved a UK photographer and museum, I would say, there was almost certainly no copyright in any photograph which is a faithful reproduction of the painting. This is because the photographer has few if any opportunities to express his own personality through his work, which is the current EU way to define originality which is a pre-requisite for copyright.

However, in Spain the approach to copyright is rather different (even though in theory they have to apply EU law). There, the rights and the honour of the artist (ie the photographer in this case) are paramount and if either he or the museum could successfully argue that he did exercise considerable personal choice in the way he took the photograph, a Spanish court could well agree. A quick check of the website of the Museu de Belles Arts de València comes up with the following on the subject of copyright

Image Reproduction

The Museum of Fine Arts of Valencia offers you the possibility of obtaining digitized copies and / or permission for the reproduction of images from its collections. To do this, you must fill in the following application form.

Once completed and signed, you must send it to the address museobellasartesvalencia@gva.es . We will answer your request shortly.

Do not forget that the Museum of Fine Arts of Valencia assigns the reproduction rights of the images only for the purpose indicated in the request. Any new use must be expressly authorized.

All images provided by the Museum must include the following credit line:

© Museum of Fine Arts of Valencia

The Museum will provide the identification data for the image.

While they don't mention any fees, I think we can assume that they will want something for a commercial publication like a book cover. You could try negotiating with them for permission to use their photograph for free on the basis it cannot attract copyright, but I doubt if they will see it that way. Alternatively you could just go ahead with the Wikimedia image if the quality is good enough and take a chance that the UK courts would probably reject a copyright claim by the Museum. However bear in mind that another European museum, the Reiss Engelhorn Museum in Germany did successfully challenge Wikimedia Germany over something similar in 2015.

[mradamdfrench]

Thank you, Andy. That answers so many of the questions that have been floating around in my head.

I commend your expertise.

Kind regards

Adam

[Thecoolguy]

Thanks Andy!

I have decided to reply. Explained the honest mistake, proved the little traffic, said that I was ok to resolve the issue but that I couldn't pay the amount requested because of financial hardship. I asked them to make another offer. I'm waiting now.

You know, when you browse the internet the trend is "fuck'em, don't reply". Ok but although their business model is shaddy, let's not forget that even without knowing it, we broke the Law. There is nothing shocking to me to have to repair a mistake if we used a copyrighted picture. Ofc, where it becomes ridiculous is when they ask for 1K+ when the picture licence fee is way less. But conceptually speaking, having to pay for the use of a copyrighted material doesn't shock me.

That being said, I'm almost sure they won't bring the price down to the real licence fee (150€). I'm expecting them to lower their request of 300€ to maybe 250. Don't know yet what I will decide.

[AndyJ]

Hi Thecoolguy,

It is commendable that you want to do the right thing here. However, don't let them make all the running. You are perfectly entitled to make a counter-offer which reflects the true market value of the image, as the law only aims to put the complainant back into the position he would have been if a licence had been obtained at the correct time. There is no uplift for punishment unless the infringement was blatant or continued after the owner asked for it to be removed.

[Thecoolguy]

Thanks Andy!
So I received their reply today. Ofc they said that an honest mistake doesn't negate that you have to pay for the pic bla bla, and then told me that they were proposing to pay 170€ instead of 300€.
I'm not gonna be a pain in the butt for 20€ so I will pay.

I'm not unhappy with how the situation resolved. I was really scared at 1st, after reading all those horror stories, but I think that if you show responsability and good faith in the fact to make things right and respect in the way you speak to them, it can go quite well.

I hope that my little experience will be useful to others

[AndyJ]

Hi Thecoolguy,

Thanks for the update. I'm sure others will find it helpful.

[Graham]

Hi Andy

Hope it is ok to piggyback onto this thread...

I am yet another Sad Picright story.

They have contacted me recently from their UK office about a picture posted in a blog, on a co.uk site hosted in the UK, dating back to 2011.

Am I right in thinking that there is a 6 year time limit from the point of actual transgression for UK copyright claims?

And if so can I ignore their mail? Or should I point this out to them?

Many Thanks

Graham

[AndyJ]

Hi Graham,

The Limitation Act 1980 does apply to copyright claims and you are right that the relevant period of time is 6 years. However the clock only starts ticking from the end of the event in question. So if the image complained about was removed in 2011, then in all probability the claim would be out of time. But if the image was still on the blog within the last six years then the alleged infringement continued throughout that period.

Furthermore, Section 32 (1)(b) of the Limitation Act provides for the postponement of the limitation period where a deliberate act of concealment prevented the claimant from discovering the alleged wrong. However it is not at all clear what, in the case of copyright infringement, might constitute concealment. Normally, something which can be discovered by a reasonably diligent search cannot be said to be 'concealed'. However if an infringing work was hosted behind a paywall, such that it would only be accessible to a subscriber to the site, this, it might be argued, could amount to concealment if it was shown that the sole or primary reason for putting the work behind a paywall was to prevent the copyright owner from exercising his right to bring a claim.

[Graham]

Hi Andy

OK, many thanks for clarifying that point.