Unlicensed Use of Reuters Image (by Picrights)

[lucaturconi]

Hi there

Picrights are chasing me for the use of an unlicensed image belonging to Reuters.
My colleague included this image in a ppt document, for education purposes, years ago.

In the past we already paid a fine to Picrights for not having the license for a photo, so following that experience we made sure to remove all unlicensed images from our website and/or deactivate any links to documents or presentations which included unlicensed images.

At the time when picrights wrote to us (ie a few weeks ago) the pdf containing the unlicensed image was not accessible by anybody as the url link to it was deactivated a cpl of years ago.

Do I have a case for pushing back picrights on their claim of GBP 350?

The image in question is indeed available on Reuters's website (for GBP 101.50 + VAT per year, via the editorial route) but its also available on Alamy's website for GBP 12!

I would be gutted if we had to pay picrights again... as i do feel that we took precautions after our first experience. However i understand and accept that we had used a Reuters image in a ppt document without paying the license for it.

I wonder what language/text would be most appropriate to use in my email response to Picrights..

Thanks for any advice you can offer

Luca

[AndyJ]

Hi Luca,

Yes, you most definitely ought to push back against this claim. At most, their claim relates to a single instance of copying the image (when it was embedded in the .ppt) and there is no case for a claim that the infringing work is/was being made available to the public if the url was not active. Use the Alamy rate as the basis of any counter-offer, since, realistically, that is what you would have paid if you had been intending to use the image with a licence. You can find more details about the arguments to support your counter-offer in the other recent threads on this forum on the same subject.

I suspect that you have been chased on this occasion because of they were successful with the previous claim.

[lucaturconi]

Dear Andy

Thanks for yr prompt response. I appreciate it.

I typed a response email to Picrights below.. and wondered whether you could take a look at it and offer any comments/feedback, prior to me sending it? I'm trying to find the right tone/language to push back

Thanks again
Luca

-------------
Hi Jim,
Thanks for your email.
As we understand, Picrights are chasing us for the use of an unlicensed image belonging to Reuters and this claim relates to a single instance of copying the image (when it was embedded in a PDF document)
In the past we already paid a fine to Picrights for not having the license for a photo, so following that experience we made sure to remove all unlicensed images from our website and/or deactivate any links to documents or presentations which included unlicensed images.
At the time when Picrights wrote to us the pdf containing the unlicensed image was not accessible by anybody as the URL link had already been deactivated. The infringing work is/was therefore not being made available to the public as the url was not active.
The image in question is indeed available on Reuters's website (for GBP 101.50 + VAT per year, via the editorial route) and its also available on Alamy's website for GBP 12.
We find the GBP350 fine excessive and would like to ask that you revise the fee down, in light of what we would have paid if we had been intending to use the image with a licence.
Sincerely
Luca

[AndyJ]

HI Luca,

I can't advise on how to conduct your settlement negotiations as I am not your lawyer and it would be unethical as I am not in a position to carry out due diligence.

However, if you wish to make a counter-offer, you need to propose your own settlement figure and not leave the initiative with the other party to come back with either their own amended offer, or stick to their original figure. By making a fair and reasonable counter-offer based on the Alamy licence, you may strengthen your position should the matter ever go to court (this is unlikely). This occurs if you wish to make what is know as a Part 36 offer, a reference to Part 36 of the Civil Procedure Rules. More information on how this works here. As you will note the advantage to you of following this route is to limit the costs which might be awarded against you if the claimant fails to win a award of damages which exceeds your part 36.6 offer. The aim of the procedure is to avoid frivolous or unreasonable claims going to court. It has to be noted that, as any claim against you would be dealt with on the IP small claims track, the actual costs for which you would be liable are fixed anyway by the IPEC Small Claims Court rules (limited to the claimant's court fees and their reasonable travel and loss of earnings costs on the day of the trial) so the part 36 procedure is really just a way of making the claimant realise that he would be at a disadvantage if the court thinks he should have accepted your reasonable offer before hand. Picrights don't want to go to court, firstly because they are unlikely to gain anything from the award the court makes (unless the claim is undefended) and secondly because they want to avoid the publicity of effectively losing a claim (ie they didn't get the amount they first demanded). And no photographer in their right mind wants to go through all the stress and cost of going to court when the prospect is that the court will only award the Alamy licence figure by way of damages.

If you are in any doubt about how to proceed, I strongly urge you to speak to a solicitor. You should be able to get a free consultation at which he or she can outline any fees before you commit to instructing him/her. Make sure you choose a solicitor who specialises in intellectual property matters.

[Omid]

Hi I have a similar problem.

Used and image for an article I wrote for a blog a few years ago.
I am an academic but also an architect and I included the article on the our website under research.

I am being chased for payment, but believe this to be fair use.

Their argument is the website is for a company and therefore it is not considered academic work.
However the company is built around a academic research.

Should they not prove that our use impacted the copyright owner because of its use?

Should we pay?