PicRights demand for UK Reuters Pic On Non Business Website

[SandyP]

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.

[AndyJ]

Hi Sandy

Welcome to the forums.

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.

[SandyP]

Many thanks for your comments and advice; I'll do some further research!

[SandyP]

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

[AndyJ]

Hi again Sandy,

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.

[SandyP]

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.

[AndyJ]

Hi Sandy,

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.

[SandyP]

Thanks, that scenario had crossed my mind! Never was any good at card games.... far too honest. I'll think on it.

[HammerofPompey]

I've recently received such an email re PA Images of me on Alarmy - a follow up to one that was quarantined first time around! Pic RIghts want £1400 to "settle"!! The image is priced at £35!

On searching for the image, I found stock images that they were selling were actually "my" images and I think a photographer had taken a photo of my images in a programme! I'll let it ride and IF it goes to court will spill the beans, but I have no intention of contacting PicRights. If PA get in touch, it will be an interesting conversation, but if they are selling my images (without my consent) I don't feel in the slightest bit guilty borrowing one of their!

[AndyJ]

Hi HammerofPompey and welcome to the forum,

Unfortunately being the subject of a photograph gives you virtually no rights over how that image is used, unless it was taken in circumstances where you had a justifiable expectation of privacy, for instance while you were in your home. This category of intrusion is covered by Article 8 of the European Convention on Human Rights (ECHR) as brought into UK law by the Human Rights Act 1988. And assuming that the image doesn't infringe your Article 8 rights, you are no more entitled to just use the image without permission than anyone else is.

That said, most picture agencies such as Alamy usually insist on a release being signed when a recognisable person is prominently featured in an image submitted to them for commercial use (see 'When do I need a model or property release?' on this page from Alamy's Contributor FAQ page). This is not due to privacy or GDPR, but because it is possible that a client of the picture agency might use the image in a way which implied that the person portrayed was endorsing a product, idea or activity which the image was used to illustrate. This might leave the agency open to claim for defamation or passing off. Both these are remote possibilities, but the agencies tend to cover themselves just in case.

However your reaction to the demand for £1400 is entirely justified. If you decide that you want to settle, we suggest you counter-offer with the amount that the actual image licence would have cost, since that is the amount of damages a court would normally be expected to award in a straight forward infringement case.

Here's an article about American model Gigi Hadid being sued for using a photograph of herself taken by a paparazzo, on her Instagram account without permission. There aree two things to note about the case. First, it happened in the USA so the law is slightly different there, and secondly, she actually won on a technicality. Before you can sue for copyright infringement in the US Courts you need to register your images with the US Copyright Office. The photographer in that case failed to do so before filing the claim with the court, and so the judge threw out the case. That wouldn't apply in the UK where there is no requirement for registering to obtain copyright protection.

[HammerofPompey]

Thanks. I'm not suggesting the £35 is unreasonable - nor that it is due. I am, however, rather upset that Alarmy are selling my pictures at the same price (£35) after a photographer took a photograph of them in a printed programme!

[HammerofPompey]

Hi HammerofPompey and welcome to the forum,

Unfortunately being the subject of a photograph gives you virtually no rights over how that image is used, unless it was taken in circumstances where you had a justifiable expectation of privacy, for instance while you were in your home. This category of intrusion is covered by Article 8 of the European Convention on Human Rights (ECHR) as brought into UK law by the Human Rights Act 1988. And assuming that the image doesn't infringe your Article 8 rights, you are no more entitled to just use the image without permission than anyone else is.

That said, most picture agencies such as Alamy usually insist on a release being signed when a recognisable person is prominently featured in an image submitted to them for commercial use (see 'When do I need a model or property release?' on this page from Alamy's Contributor FAQ page). This is not due to privacy or GDPR, but because it is possible that a client of the picture agency might use the image in a way which implied that the person portrayed was endorsing a product, idea or activity which the image was used to illustrate. This might leave the agency open to claim for defamation or passing off. Both these are remote possibilities, but the agencies tend to cover themselves just in case.

However your reaction to the demand for £1400 is entirely justified. If you decide that you want to settle, we suggest you counter-offer with the amount that the actual image licence would have cost, since that is the amount of damages a court would normally be expected to award in a straight forward infringement case.

Here's an article about American model Gigi Hadid being sued for using a photograph of herself taken by a paparazzo, on her Instagram account without permission. There are two things to note about the case. First, it happened in the USA so the law is slightly different there, and secondly, she actually won on a technicality. Before you can sue for copyright infringement in the US Courts you need to register your images with the US Copyright Office. The photographer in that case failed to do so before filing the claim with the court, and so the judge threw out the case. That wouldn't apply in the UK where there is no requirement for registering to obtain copyright protection.

PicRight are ignoring that I have now purchased a licence so the photographer/agency have their due fees (albeit late). They are, however, now trying to claim that the editorial picture was used on a non news site, despite sending me a link/image that they highlighted to show the editorial licence was viable on a news site/personal site - which given the domain was my name designed to support my charitable/philanthropic/community service following the death of my son in Afghanistan and the picture itself was taken at my son's inquest is a touch ridiculous! Additionally the site has not been promoted or had a single contact, not least because it was a "draft" hidden behind a coming soon plugin that failed after an auto update. Not an excuse but fact. They continue to push for an early settlement of the full £1400 with a date at the end of the month, which I have refused, given I will be away, and have stated that given we are in correspondence I feel this this both threatening and bullying! I did not sign a release, which seems would have been needed for a commercial licence - so seems to me it is clearly bullying to get "their slice".

Any advice gratefully received, but looks like I may have to rely on a court ruling on what is reasonable!

[AndyJ]

Hi again HofP,

As you acknowledge, buying a licence after the event does not really address the alleged tort of infringement, albeit the sum of money involved is the same. You still need to 'settle' the original claim. Clearly at this stage PicRights are at their most belligerent and unbending. However I don't think this is likely to go to court because they will have great difficulty in justifying the demand for £1400 when the appropriate licence costs £35. However much depends on how resolute they think you are. If they feel there's a chance that you may back down or even fail to defend the case if it went to court, then clearly they are more likely to stick to their current level of bombast. But there comes a point where they have to make a decision about whether to waste more time on the case which they probably realise will cost them more to pursue than they can ever hope to win in damages. Even if, in the worst case, their demand for £1400 in damages was upheld by the court, their lawyers' fees would probably be double that figure, and legal fees are not awarded against the losing party in the IPEC Small Claims Court. A pyrrhic victory indeed. And since Reuters is in business to make, and not lose, money that's not a course they would sensibly take.