Hello, thanks for allowing my post. I seem to be another victim of PicRights sweeping the internet for unwary victims. I am a UK pensioner offering talks to schools in my local area. I set up a small website in Nov 2020 to advertise the topics I cover; the one pic I used to show a crowded train in India is apparently under license from Reuters. Even today, this still comes up when searching for 'crowded train free download' or similar and there was no obvious indication that a license was payable at the time. However, it was my innocent mistake and I have immediately removed the image from my website. PicRights are demanding £350; I would not want any photographer to be out of pocket for their work so intend offering £50, which I consider reasonable but doubtless they will not. I have looked at the other posts here to follow the general PicRights advice; would you offer some comment on my intended response to PicRights please and whether the final wording is sufficient to be considered a counter offer? And given the circumstances, what would be the likely outcome should they choose to pursue this to court?
Thank you for any advice.
Draft response to Picrights
I have received an email dated 1 March from Jim Barnes referring to a previous notification about an unlicensed use of a Reuters image on my website. I have no record of a previous email which was probably treated as Spam by my system. The image you included was in use although the link to the place on my website you inserted to prove the point was incorrect.
I am a Pensioner offering free educational talks to primary schools in my local area in the UK, as described on my website. I make no charge for this and no remuneration has ever been received.
I would never knowingly use someone’s image where a license is due; my Google search for ‘crowded trains free download’ or similar still shows this image. However, I have immediately deleted this image from my website and certainly would not want any photographer to be out of pocket due to my unintentional mistake.
Thank you for your understanding that these are indeed very difficult times and, as such, I could pay £50 for the very limited educational use I have made of this image.
I'm sure you understand that copyright infringement is a matter of strict liability and so your unintentional mistake would not in itself assist your defence in court if the matter ever went that far, which I doubt. However including it in your response does no harm as evidence of contrition. Whether PicRights take it into account is also something I doubt.
I assume that you haven't found any evidence to support your explanation of how you first found that image. That is a pity because if you were able to show how you were misled into thinking the image was free to use, that would certainly have improved your position. As a next best step it might be worth trying to find the same image being offered on a picture library website such as Shutterstock, and making a note of the cost the licence which was most appropriate for your use of the image. Chances are that the cost of a licence of that type will be in the vicinity of the figure you have come up with, but if you are able to find the exact figure, which represents the true market rate, then you will be demonstrating to PicRights that you understand your position legally speaking if they decide they want to take the matter further. Your draft response certainly contains what is necessary to constitute a counter-offer, but it might be improved by restucturing it slightly, so that your initial explanation is then followed by your remarks about not wishing to deny the photograper his or her due. Then follow up with a slightly stronger statement in support of why you feel that the amount of the counter-offer is reasonable. Being cynical, it is only this last part of your response which will actually be read by PicRights and they will be looking at its tone in order to judge how resolute you are and whether, ultimately, it's worth them pursuing the matter. They will of course follow their standard procedure, as you will have seen from the experience of other posters here, and tell you that they can't accept your offer and they will then propose a new figure, and so on. But there is a limiit to how long they will continue the chase before it is no longer economic to go further.
If they ultimately take you to court and you defend the claim*, you can expect the court to award damages which reflect the true market value (ie the cost of a licence from somewhere like Shutterstock) and you will also have to pay the court costs the copyright owner (presumably Reuters) incurred in bringing the case, namely the filing fee and hearing fee - around £150 in total - plus any reasonable travel costs and loss of earnings (not to exceed £90) for the claimant for the day of the hearing. So in all, quite possibly around the same as the £350 of their initial demand. However only the damages element will go back to PicRights and the copyright owner as a 'profit' and they will no doubt have incurred upwards of £1000 in legal costs which are not recoverable from you. From this you can see that this is not economically attractive to either PicRights or Reuters, which why I say I don't think that is a very likely outcome.
I hope this helps.
*I can't stress strongly enough that this outcome would depend on you robustly defending yourself and refuting the inflated claim of £350 or whatever figure they put on a court claim form. Failure to defend the claim would result in a default judgment and damages would be set at whatever figure the claimant dreamed up, since the court would not be provided with any counter argument as to why that figure was unreasonable.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
Further research on the pic in question reveals it is available for download from Alamy stock alongside the words 'rights managed' under a different reference no. to that quoted by Picrights for the Reuters version. So confusion reigns! Would buying the pic from Alamy be the same as a license? From Alamy there are three usage options showing
Presentation or Newsletters £11.99
Editorial Website (use in a single website, app, social media or blog, worldwide) £35.99
Magazines and books £47.99
There is also an information note as follows Available for Editorial use only. Get in touch for any personal uses...personal prints, cards and gifts. Non commercial use only, not for resale
I'm not sure if my usage as previously described would fall under editorial website or personal use but I've asked them for a price meanwhile.
I assume for my circumstances, the price of £35.99 would apply but I welcome your view on this; should I quote the source of my counter offer to PicRights? this may, as you suggest, prove I can support why my counter offer is reasonable and theirs of £350 is not. I have a screenshot of the offending pic appearing in two other sites when Google search words 'free download' are included. Drilling down to the photo on two separate websites, however, it then shows with 'Reuters' and the photographer's name underneath it... although still no indication that payment is due. I realise this is no defence! I really appreciate your help in navigating my way through this minefield.
Thank you
Well done with locating the image on Alamy. I would agree that the editorial use at £35.99 sounds like the correct licence. And yes, that would then be the correct figure to quote as justification for your counter offer. Since you were prepared to go to £50 before, you could either hold that figure in reserve as a second counter-offer, although I wouldn't recommend doing that as it only prolongs the negotiation, or you could go with the figure of £35.99 plus a 10% uplift as a goodwill gesture to cover some of their expenses, so taking it up to £40 as a round number. Make sure that you let them know that you are fully aware that, were the matter to go to court, the £35.99 figure would represent the true market value of a licence for this image and therefore that is what the court would award as damages. Their initial claim for ten times that amount is clearly unreasonable and might be viewed by a court as being so. Damages in a civil claim are only supposed to put the claimant back in the position he would have been in if a licence had been obtained at the appropriate time. Damages are not intended to be punitive.
Good luck with the negotiations.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
Hi, I have had a very prompt response to my counter offer sent yesterday... their reply follows:
The image in question is a rights-managed image represented exclusively by Reuters News & Media Inc (‘Reuters’). The use of rights-managed images represented by Reuters requires a licence covering each and every use, and a payment in relation to the unauthorised past usage is required to resolve the matter completely.
Regarding your comment “Further research shows a realistic market value to be £35.99 for a licence for the very limited educational use I have made of this image. I would be prepared to add 10% as a goodwill gesture towards your costs in this exercise rounding the total to £40. Thank you for your understanding that these are indeed very difficult times.”
The fee you are referring to is for an Editorial website, http://www.classroomtalk.co.uk/ is not an editorial website and as such the license you refer to would not apply however, after further review I have amended the valuation of this matter to Non-Profit valuation, please see below.
After careful review, Reuters is willing to settle the matter for £ 101.50. Please note that we are not adding any fees or attempting to recuperate any of the costs Reuters has incurred in relation to this matter. The offer is on the current listing price for 1-year licence for the usage on an NPO/Charity website which is the licence you should have purchased prior to the usage.
Would you care to comment on the reasonableness of their reply? They have obviously verified my research as far as I could do it myself. I am struggling to verify their current charge of £101.50 on the Reuters site itself.
thanks again for your input...it certainly helped in getting them to reduce their claim from £350 originally quoted.
The matter of what is and is not editorial use is highly debatable. In any case, arguing the issue with PicRights is fairly pointless since they are not authorised to issue you with a licence; they are employed to recover fees from unauthorised usage. If you were seeking a licence today you would deal with Alamy who are the licensing agents for Reuters.
As for whether the figure of £101.50 is reasonable in circumstances, I would suggest it's not since you could probably obtain a generic image of the sort you need to illustrate you website for around £30-50 with no nitpicking limitations on usage. However whether you decide to pay that amount or not is very much up to you, depending on whether you just want to settle the matter and move on. In a sense it's now a poker game and a matter of who blinks first. They are not going to take you to court over £101 because it will cost them ten times that in legal fees. Since they have offered to settle at the lower figure, they could not revert the old figure of £350 in order to lodge a claim with the court.
One of the problems with using a site like this is that anyone can view these exchanges including PicRights and so there's a chance they have already seen your cards. On that basis perhaps the poker analogy is not the correct one.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
