Pixsy demands - what do we do?

[Truthseeker292]

We're a small hospitality business located in quiet rural England. We pride ourselves on offering friendly service, honesty and integrity. Several months ago, just after lockdown lifted, we were finally able to welcome guests back. One of the things we did during our COVID-enforced closure was to add a little more interest to our website. So we created a page of local attractions - things for our guests to do when they stayed with us. A local wildlife park was a good choice, so we created a link to it from our website. The small image we used was one which we found on a local business website where this very same wildlife park was promoting itself. It had no photo accreditation or copyright information and we therefore assumed it would be in order to use the photo as it would have been supplied by the park which we were helping to promote. This local business website is still active and the photo in question is still there as part of the visual promotion of the animals and the park.

Out of the blue, we received in August, a bombshell of an aggressively worded email from Pixsy's London office accusing us of copyright infringement and demanding a £450 fee - or else things will be legally escalated. Pixsy claims that the image we used is copyrighted by one Marco Verch of Germany for whom Pixsy acts. Now, after a little digging, I found that the image for which Pixsy wants £450, is available free of charge for anyone to use on Marco Verch's website https://ccnull.de/fotograf/marco-verch. It's a Creative Commons photo, so Marco Verch places zero value on it. He just asks you to consider a donation when using it for any purpose plus a photographer's credit.

We immediately removed the image from our website after this first email.

As a LinkedIn member, I sent Marco Verch a friendly message explaining our unfortunate situation and kindly requesting that he asks his agent to reconsider, given that we had no idea we were using an image that wasn't the local park's, even though they were using it in their publicity! And that we were unwittingly using a photograph of his for which he makes no charge. Had his name appeared as a photo credit, then we would, of course, have repeated and published that.

Marco Verch has ignored our message and request and we continue to be bombarded by emails from Pixsy demanding the fee with a deadline set, beyond which legal action is threatened for non-payment.

This is very stressful, all the more so, as I have some worrying health issues that have just been diagnosed.

Are we at fault? Are we liable?
Do we pay up or do we sit tight and wait to get a court summons then settle out of court?
Or do we just ignore all the emails and hope Pixsy will realise that our case just isn't worth pursuing?

All we ever wanted to do was just add a bit more local information to our website and doing so has opened a whole can of unsavoury worms!

Pixsy's approach seems very heavy-handed and unreasonable.

All suggestions most welcome!

[AndyJ]

Hi Truthseeker,

Sadly your story is not uncommon. Pixsy's business model relies on them demanding high fees as they have to split the proceeds between themselves and their clients, the photographers. In this case I can't see why Marco Verch is using this company when he seems to release most or all of his work under CC licences.

Having just re-read your posting to make sure I had understood all your points, I note that you initially say that you linked to the image that you found on the wildlife park's website. However later you say that after you received Pixsy's demand you removed the image from your website. Did you link to it or copy it? This is an important detail. The remainder of this paragraph is based on the situation where you only linked to the image and there was never any actual copy of the image on the server which hosts your own website. If this was the case, you can ignore Pixsy's demand. Over the past few years, the Court of Justice of the European Union has issued several decisions which make it explicitly clear that linking to an image which has been made freely available to the public is not an infringement of copyright. The relevant cases are known as Svensson, Bestwater and GS Media. You don't really need to know the details, but if you are interested I've provided links to each of the cases below. Unfortunately the judgment in the Bestwater case was never published in English and so I've linked to a commentary on that particular case instead.

Just in case you did have a copy of the specific photograph on your server before you removed it, I need to cover that situation now. Note: the following only applies to the situation where you had a copy of the image file on your server.

Clearly in this case, the issue is the lack of a credit. By not supplying a credit the CC licence becomes invalid, and hence the Pixsy demand. However if this were to go to court (which I would very much doubt) the value of the actual claim would be based on the market value of the image, which in this case is zero since Herr Verch is making it available for free. There could be a claim for a breach of his moral right to be credited as the author of the photograph (see section 77 of the Copyright Designs and Patents Act 1988) but you could only be liable for this if you had received a notification that he wished to assert this right (it's not automatic in the UK, but it is in Germany). The reason you would not be bound by this asserted right is covered in sub-section (4) of section 78, namely that due to the manner in which you found the image (ie not via his website), you could not have been aware of the need to credit the photographer.

On that basis, Pixsy would face a complicated (and thus expensive) battle to convince a court of the merit of their case. I say Pixsy, but in fact the only person who could take you to court is the photographer, and I can't see that happening given the odds of him winning are well below 50%. Theoretically he could sue in the German courts where because German law is different he might have a better chance of winning especially as you would probably not to wish to attend a German court in person to defend yourself. However, since a German court would have no jurisdiction over you if you weren't in Germany, you could ignore any award it made against you. As this would be a civil matter, following our departure from the EU, getting a foreign civil judgment enforced here is both complicated and expensive and would have to be funded by the photographer. In other words, no sane person would embark on such a course of action, especially as even if he ever got his money he would have to split it 50/50 with Pixsy who had not borne any of the costs or the stress involved in bringing a court case.

CJEU Decisions:
Svensson
Bestwater
GS Media

[Truthseeker292]

Many thanks Andy

[AndyJ]

Hi Truthseeker,

Thanks for clarifying the copying/linking issue.

I think we have to assume that Pixsy monitor this website and therefore they may be aware ot this thread. It would therefore be unwise to discuss your tactics for dealing with this claim in the open forum.

[jeffs44]

Thanks for the advice in this forum. I want to give you my feedback. We got a bunch of letters from Pixsy and decided to ignore them (based on some of the advice here), and that led to a much worse situation for us.

To be clear, an intern working for us took a photo from Google and used it on our site. We quickly deleted the image from our website, but they had screenshots and evidence. We didn't get any permissions or licenses (our mistake).

The original price they asked for was £600 for a license. We ignored all their emails and letters. They threatened to take legal action, and they did. We then got a letter from their UK lawyers at which time we also got our lawyers involved. Our lawyers accessed the case and confirmed we didn't have permission to use the image and it was a copyright infringement. Our options were to push back for a lower price (which they did for us) or wait to see if they took action in the courts. The lawyer we spoke to knew of cases where Pixsy and their clients had taken people to the IPEC courts...

In the end, after months of back and forth, we paid and settled the case. The costs were mounting with our lawyers and it was all just too stressful. In the end, the whole thing cost us around £6k (our lawyer and the settlement).

In hindsight, I wish we just paid the £600 and took the license from Pixsy (we could have kept using the image on our site).

My advice, be careful ignoring them and weigh up the risk or costs if they do pursue you... Might not be worth it in the end. Each case is different, but this was my experience.

[AndyJ]

Hi Jeffs,

Thanks for sharing your experience with us. I'm sorry it went badly for you. To be clear we (meaning me) never advise people to ignore any claim of this sort. As you say, every case is different, and in most cases there are strong reasons for pushing back against the more outrageous initial claims made by these claims companies. Even if you know that you are in the wrong, that is not a reason to accept the first claim which is usually several times more than the market value of the image etc at the heart of the claim. Civil justice does not seek to punish, merely to put the copyright owner who has suffered a wrong in the position they would have been in had the person using the image done the correct thing in the first place.

[MB1]

I have recently received an almost identical message from Pixsy.

@Truthseeker292, I would be interested to hear the results of your dealings with Pixsy if you are willing to share them.