Pixsy demanding I pay a fee for unauthorised use of an image. Urgently need help.

[stevedavies]

An image on my blog was scanned last Saturday and I had the ugly email today demanding I pay a hefty £560 fee or face legal consequences.
And the demand from Pixsy, an image theft detection service, want it paid in just over 3 weeks time.

It's that blunt.

I added a free image, at least I thought that, to a web page back in Nov 2022. Mostly these days, I make sure images are attributed but this one may not have been. Not sure. I have changed the blog post image and deleted it from my WordPress library.

I thought nothing of it as it came from Flickr and I've always though that it's okay to use free images. But I know that I've added source URLs and have also forgotten at times.

Anyone dealt with Pixsy over what feels like bullying the small guy for money.

Seems the owner of the image contacted them to get in touch with me. I had no idea and did not wilfully infringe copyright.
I find it odd that I received no take-down request. And I would have taken it down right away back in 2022 if so. Or made sure that a source link was added.

Rather than ignore Pixsy, I've informed them of the image removal and that I'm pretty sure the DMCA has a regulation for this. They've blurred that into obscurity and basically resumed their threat. I read on another site that Pixsy are being investigated for unethical practices. They exist solely to profit of misuse of images on free stock sites, even if accidental.

I can't afford the fee requested and am dealing with debts and arrangements with creditors as it is. So this heaps unneeded stress on my back.

I'm contacting lawyers for advice but honestly, I have to figure out a way to deal with this asap.

Any advice appreciated.

[AndyJ]

Hi steve, welcome to the forum.

Please read some of thee earlier threads on here about Pixsy: viewtopic.php?t=2554
viewtopic.php?t=3104

And I also suggest scanning through the thread about Permission Machine, who run a very similar operation, for our suggestions on how to deal with claims like this. viewtopic.php?t=3072

However as a matter of background information, copyright infringement is a matter of strict liability, which means that the intentions, however innocent and unknowing, of the alleged infringer are irrelevant in deciding liability for the tort. But at the same time, civil law claims, which is what this is, are not concerned with punishment or retribution; tthey are simply concerned about putting the claimant in the position he or she would have been in, financially speaking, if the appropriate licence to use the image had been purchased in the first place. Since a licence is more likely to cost tens of pounds, and not the several hundred being demanded in this instance, the Pixsy claim is all about making money for Pixsy and very little to do with helping the photographer get the money he is rightly owed for the use of his image.

[stevedavies]

Thanks for the great advice and I am taking it all on board. I really don't see how this will go to court for £556 when the creator never asked for that fee and how it's against what CC say and the law itself. But I'm waiting to hear from lawyers about it. I think one person wrote a cracking letter in defense, reading another post in that link you sent, and it mentions all the legal areas that Pixsy brushed past and ignores.

[stevedavies]

Hi steve, welcome to the forum.

Please read some of thee earlier threads on here about Pixsy: viewtopic.php?t=2554
viewtopic.php?t=3104

And I also suggest scanning through the thread about Permission Machine, who run a very similar operation, for our suggestions on how to deal with claims like this. viewtopic.php?t=3072

However as a matter of background information, copyright infringement is a matter of strict liability, which means that the intentions, however innocent and unknowing, of the alleged infringer are irrelevant in deciding liability for the tort. But at the same time, civil law claims, which is what this is, are not concerned with punishment or retribution; tthey are simply concerned about putting the claimant in the position he or she would have been in, financially speaking, if the appropriate licence to use the image had been purchased in the first place. Since a licence is more likely to cost tens of pounds, and not the several hundred being demanded in this instance, the Pixsy claim is all about making money for Pixsy and very little to do with helping the photographer get the money he is rightly owed for the use of his image.

More than a week later and I've not heard from Pixsy. I'll be updating this thread with upcoming to-and-fro strife with Pixsy should they get back to me. My email response, a 2nd email, makes it clear I'm no mug and that has you and a few other sites to thank for that. I've got myself clued up on what my rights are, what Pixsy can expect to face going through litigation and about copyright law; plus how the IPEC court works.

I'll post my email responses here from the 6th Sept as that was the day they threatened to go further and sue if I didn't pay.

[AndyJ]

Thanks for the update Steve

[stevedavies]

Hi Andy

Sadly, this awful company has come back. They responded to my email sent to them on the 23rd August. Taken them several weeks to bother. And they have not addressed much of what I mentioned around how the case will likely go down at the IPEC or my financial struggles and inability to pay what they ask.

They now just quote stuff and think a 15% discount is a great offer before yet another closing threat.

I'm actually not going to let this concern me the way it did back in August. If they want to go to court, so be it. Amazed if that happened though. And I still see them hoping I'll fold somehow and just pay up.

I have not bothered clicking the new link to pay in the email. This is what they've sent back to me yesterday.

=============
Dear Mr. Davies,

Thank you for your email.

I will deal with the points that I consider relevant to the case:

Copyright registration is not required in the UK. The UK Government provides information about Copyright and the consequences of breaching it on the link below:

https://www.gov.uk/government/publicati ... e-internet

I note your comments regarding that the infringement was unintentional. However, it is a reasonable expectation for organiSations that publish images online to know that copyright law applies.

In determining license fees, we use industry standard software for stock and assignment photography. This figure is configured upon a number of matrices, including: the size of the published image, usage, the length of time posted, as well as my client’s own licensing history, which I enclose.

Because Pixsy acts as a licensing agent for our photographers, there are limitations on the extent to which we can negotiate or reduce image usage fees. The figure that you were invoiced is in line with the rates at which Mr. Furman licenses their work for this manner of usage, and, in preserving the value of this work, I am not authorized to negotiate this figure.

I can, however, extend a 15% discount on your license fee if payment is made immediately.

Your discounted license fee is GBP 472.60, and can be paid via our Case Portal:

I'VE REMOVED THE URL TO THE INVOICE PAGE

Pixsy’s role is to avoid legal escalation wherever possible by arranging for a license fee to be put in place for the period of unlicensed historic usage. We are prepared however to seek all available remedies in the event that the term of unlicensed use is not addressed.

Best,

Ricard Jornet | Licensing Agent
Pixsy Case Management Team
===============


Not sure how to respond this time or even whether to bother responding. Feeling quite cavalier about my approach now. Don't need this crap in my life. Find it stupid how they use licensed fees based on what 'industry standard software" reported for what is a free image; very baffling still.

Anyway, any help appreciated.

[AndyJ]

Hi Steve,

I'm sorry but unsurprised that Pixsy have replied to you in this unhelpful manner. As you indicate, their response is full of meaningless phrases which have no bearing on how the civil law approaches matters like copyright infringement. I sincerely hope this doesn't go to court, but if it does then Pixsy will have to change tactics because the court will not accept all this guff. But of course it won't be Pixsy's decision. Only the copyright owner can bring a complaint to court, and Mr Furman, who I assume is the photographer in this instance, will hopefully be advised to settle the matter for a realistic figure, or better still drop the claim altogether.

Going back to your original posting, I'm not entirely clear what it is that you have been accused of. Is it infringement by copying or is it infringement of the moral right of the photographer to be credited as the author of the work? Pixsy speak about payment for a licence. However if you obtained the image from Flickr under their general terms, then that is a licensed use of the image. If the image was only ever made available by the photographer on Flickr, then you need to screenshot the page where you found it (if it is still there) and note any terms and conditions. For example did the photographer ask for a credit and if so, did you comply? If you omitted a credit when one was asked for, then this may not be a straight forward copyright infringement (by copying), but instead an infringement of the author's moral rights (see sections 77 and 78 of the Copyright Designs and Patents Act 1988); this is known as the paternity right. Infringement of a moral right is actionable as a breach of statutory duty owed to the person entitled to the right (see section 103 CDPA). This means that the claim, and more to the point, the remedy, is looked at in a slightly different way. Any damages which may be awarded will be based on the economic loss to the photographer caused by the lack of publicity, resulting from the lack of a credit. However where a photographer has released his work under a CC licence or on similar terms, there cannot be any direct economic loss, since obviously he was not gaining any income in such circumstances. Under such circumstances I would expect a court to want the claimant to prove the level of economic loss, which obviously will be hard for him to do if he has made the images available for free. This will be even more difficult if he is an amateur and does not make his living from photography. And if he is a professional photographer, how does he actually earn his money, as it obviously can't be from posting on flickr under their general terms (ie a CC licence)? If it is from other work (say weddings or advertising) then his work on Flickr is going have very little relevance to the main part of his work.
Obviously the foregoing are the arguments that a court would need to consider, and we hope that it will not go that far. However that it is the economic reality of the situation, which clearly favours you, since no court is going to accept that the photographer has made a loss of £472 let alone the original figure of £556, which was clearly just plucked out of the air.

[stevedavies]

Thanks for getting back to me Andy.

Guff... Yep, it's loaded with it.

It surprises me that this dribble continues after I was threatened with legal action if I hadn't paid up by Sept 6th.
Well, I replied to that crap on Aug 28th and then heard nothing until Wednesday, 4th Oct.
What stalled them??

I'm accused of infringement of the moral right of the photographer to be credited as the author of the work. I did not think I needed to do anything as it was a free image. I've learnt about the CC terms since then of course. I took the image down immediately after Pixsy sent me their first threat.
After great advice from you and a few sources, I've got wise to how the IPEC works and how this 'case' looks to a judge if it goes to court.

I chuckle at their attachment; a PDF of the photographer's licensed images and their prices. What the actual that has to do with this escapes me. The image I used in 2022 is not in that licensed list but Pixsy seem to think that is relevant. The image I used is only available on Flickr. I have screenshots of the Flickr page from August 2023, and also an image that shows on Google that the image is only hosted on Flickr.

Going by the sections you linked, this is a moral rights case not infringement, it seems anyway. And this dopey photographer made no profit from the image at all as it's only available as a free image. I also reported the photographer to Flickr as they want to know about photographers abusing the CC 2.0 license to sue anyone not attributing through Pixsy - to make a profit. I hope his Flickr account get banned.

He still has not upgraded to CC 4.0. Hmmm., well it's obvious why.

Honestly, trying to decide whether to call Pixsy's bluff and say 'go on then, take me to court' or just not bother replying. I went into all the details I can on why the case is a piece of crap and where I stand in the eyes of IPEC. They have not addressed some of my questions: one is a breakdown of the costs they believe accumulated to £556 for example.

This garbage where this Ricard says "limitations on the extent to which we can negotiate or reduce image usage fees" is a joke. And then to say "in preserving the value of this work, I am not authorized to negotiate this figure" is another joke.

What do you reckon I should do? I actually want to ignore them from here on. Until they connect with me with whatever lawyer thinks this is a case.

[AndyJ]

Hi Steve,

Thanks for clarifying the details. As I am not your legal advisor I can't actually advise you on how the conduct your litigation; that would contravene the Legal Services Act 2007. All I can do is explain the law and the options.

I think Pixsy could well be having second thoughts about this claim, hence the slowness of the process. Therefore it might be advantageous to stress test their resolve. Now that you know how a paternity moral rights claim would be dealt with by the court, it might be worth asking Pixsy to provide the full justification for demanding £556 as the amount which the photographer thinks he has lost due to the lack of publicity, per section 103. Clearly using the cost of a theoretical licence is not the correct basis since no licence fee formed part of the offer via Flickr. Therefore there must be some other metric they are using to arrive at this figure. You might also point out that if the matter went to court, you would ask the court to order discovery of the photographer's income from the sale of licences etc, and any other relevant sources.

By maintaining a dialogue with them you continue to act reasonably, and this denies them the opportunity to ask the court to award additional damages (see section 97(2)(a)) for flagrancy, ie unreasonable behaviour on your part. This is covered in the seventh bullet point in section 8 of the IPEC Small Claims Track Guide which you have already seen. Any refusal on their part to provide a proper breakdown of the alleged loss of earnings might then be grounds for a counter-claim for the claim to be struck out on the basis it is vexatious and frivolous. These words are preferable to saying 'a scam'!

[stevedavies]

Thanks Andy.

I have created my response for Pixsy. And stressed that it's also a final demand for the proof that the fee is worth £556 (or their discounted figure) for the image. And to prove it, a breakdown. I know they won't. This guy has already skipped past most of my previous email.

I've asked him for a full reason for the figure and what 'metric' he used to arrive at the figure.

I know I'll either not hear or I'll get more guff.

I like the idea of a counter-claim if they can't prove loss of earnings. I will pursue this action if necessary for sure.

Someone in another thread talked about that in the small claims court. Not sure how that works though in a case like this.

The Pixsy guy did send me a PDF showing the photographer's list of licensed images used to justify his loss. Lots of images in there, many asking for around $2k for usage. It shows income from the sale of licenses but the image in question is not on there of course. So irrelevant on proving economic loss that it escapes me why Pixsy could possibly have a case.

Great advice as usual Andy. Thanks so much. I'll let you know how this goes. And for anyone else reading these threads who have Pixsy on their asses to know what to do.

[stevedavies]

Hi Andy

Sorry to bother you with more requests for help but Pixsy have come back and I wanted to get some tips before I reply. Or should I reply at all.

I'm getting the impression that this is getting escalated by Pixsy and they won't be going away.

They responded and quoted the same Copyright act saying it's not fair use as my site is a commercial site. It has never taken any money and only looked like a commercial site as an 'image' for my content services. I've even as a result of Pixsy removed any elements weeks ago so it looks just like a blog which it always was. Nevertheless they also state it's not fair use for editorial or commercial anyway.

This was my previous email to them on 8th October explaining my position:

Hi Ricard

I was very clear in my previous email on where I stand regarding your apparent 'case' against me.

You still can't justify or break down how the figure was reached. Instead you just send me the same lack of reasoning every time. A 15% discount on your license fee? Really? How did you arrive at the figure? What metric produced this new figure more than a month after you threatened court action? How did you arrive at the new offer of £472.60?

You have not addressed my request for a reduced and justified figure or a payment plan with your discount offer. The figure is still currently irrelevant.

This is not a straightforward copyright infringement case at all. Already stated why in my previous email. And I think you know that. But I'll repeat.

It's more of an infringement of the author's moral rights (see sections 77 and 78 of the CDPA Copyright Designs and Patents Act 1988). This same law says non-commercial use is fine. To repeat from the Act: It makes a fair dealing provision for work used for the sole purpose of illustration for instruction, stating that it does not infringe on copyright ‘provided that the dealing is for a non-commercial purpose’.

My site is a non-commercial site and I can prove it has never made any money? Can you prove the image is worth £556?

Infringement of a moral right is actionable as a breach of statutory duty owed to the person entitled to the right. See section 103 CDPA, Google it. Damages to your client are based on the economic loss to him resulting from the lack of a credit. However where a photographer has released his work under a CC licence or on similar terms, there cannot be any direct economic loss, since obviously he was not gaining any income in such circumstances.

How will your claimant prove economic loss for a free image on Flickr?

Sending me the PDF list of his licensed images is also irrelevant as a result. The image in question is not on that list you sent. I do have evidence of where it is available, and when. And why would it be on that list? It's a free Flickr image.

You just plucked the new discounted figure out of the air like the previous figure? The court will see that.

Your client should know that Flickr is actively closing accounts run by copyright trolls, which your client is. Would he like to be reported to Flickr with the proof I have of his activities with CC 2.0 images? Should Flickr know about his partnership with you and the trolling actions carried out against unsuspecting users of his free CC 2.0 images? I happen to know from a reliable source that Flickr does not endorse you at all.

You also have not taken my finances into account. I can't afford to pay the fee even if I chose to. Even if I agreed to a payment, which I won't at the figures you disclose, it would need to reflect the true market value of the image. Something the court at IPEC will consider.

As I said before in my previous email, this infringement claim is a civil dispute. I'll repeat what I said in my previous email: The intention of the law is to compensate Jernej for losses. Jernej is not losing any income by offering the image for free since it was licensed under Creative Commons.

This is not copyright infringement. It's a matter of moral rights and you should be clear on that now and how this will go at the IPEC.

So, I am not interested in repeating myself to you or your rogue company any further.

I'll leave you with a final request. I do this as despite your closing threat, I will continue to act reasonably.

I demand that Pixsy provide the full justification for demanding £556 and the discounted £472.60 as the amount which the photographer thinks he has lost due to the lack of publicity, per section 103, CDPA. A theoretical licence is not the correct basis since no licence fee formed part of the offer via Flickr.

So, it won't be his licensed history at all that worked out the figure. What metric are you using to arrive at this figure? This is my official demand for the metric and explained justification for the fee which you now must provide.

If the matter goes to court, I'll ask the court to order discovery of the photographer's income from the sale of licences etc, and any other relevant sources and bear in mind, it's a Flickr CC 2.0 free image that is not in the list you sent.

I await your response and thanks for your time.

Best Regards
Stephen

So, today I got this response:

Dear Mr. Davies,

Thank you for your email.

I have already made the points relevant to the case. Particularly, I have made my client licensing history for similar images available to you.

In the UK, under the Copyright, Design and Patents Act (1988), fair dealing must fit within the specific categories outlined under sections 29 and 30 of the Act. These categories relate to images being used when it is in the public interest, not for commercial interests.

The commercial elements present on your site, with products and services promoted and advertisements displayed, do not support a claim of fair dealing in the UK.

I would like to point out to your own Facebook page that states: ** DIGITAL PR & OUTREACH PLANS - GET MENTIONED ON TOP NEWS CHANNELS AND BLOGS **

In any case, even if the use is editorial, that does not allow you to use my client's image. In the UK, the exception for news reporting does not apply to photographic work. This means that news outlets cannot use a photograph without permission and claim fair use.

Whilst the distiction between commercial and editorial is relevant when it comes to paying for a license fee, the amount stated is in loine with what my client charges.

Never the less, I note your comments. It appears to me that you are unwilling to negotiate a license for this case. If that is your final stance, please confirm and I will send you a final notice and escalate the case.

Best,

Ricard Jornet | Licensing Agent
Pixsy Case Management Team

I'm basically going to stand my ground. As far as negotiating, exactly what does he expect for a free image? He still justifies the fee demanded for a free image which is by now, no surprise at all. I may just get in contact with the owner of the image as I found his profile on LinkedIn.

Any advice welcome. Much thanks, Andy.

[AndyJ]

Hi Steve,

As you know I can't advise on how to conduct your litigation. However it is clear that despite your very full explanation of your reasons for opposing this claim, Pixsy are not listening or understanding. You have told them you understand that this in not a case of infringement by copying or making available to the public, yet this person Richard reiterates the bumpf about what is and isn't fair dealing, something which is irrelevant since you are not claiming your use falls under a fair dealing exception. Whether or not your site is commercial or not is also irrelevant.

I would hope that if they do carry out their threat to escalate matters, this will mean someone with some actual legal training will take over the casework, understand the valid point you have made, and close things down.

[stevedavies]

Thanks again for your advice, Andy.

I do appreciate you can't offer official legal advice. I am appreciative of your advice on direction here.

I find it hard to believe that this is going the distance but as mentioned a few weeks ago, this photographer, Jernej, has taken people to court but they looked like licensed images that needed a fee. Not free Flickr stuff. Can't recall where I found that info, it was weeks ago. Think it was on the Copyright site. Basically, proof he is a copyright troll.

I am wondering what to do regarding contacting the guy directly or not. I have asked Flickr to investigate his usage of their service and told them he is working with Pixsy. I am also finding it hard enough to believe despite the real threat that this will go to court. I can't afford it now and definitely won't have the money to cover the court case if I lose. If I do lose in court, I'll have to pay instalments. Worst case. But I also know that won't include legal fees as it's below £10k.

Not really about appetite risk. I'm appalled that it's possible to win in court at the IPEC over the unintentional misuse of a free image.

But this does worry me on a lawyer's site:

Costs can range from £5,000 in the small claims track to £150,000 for more complex IP disputes. It is not uncommon for cases in the High Court

Really?

Ricard has not responded to my demands for justification of the fee, its breakdown or how it's worth the fee he demands. Also, what's this accusation of not negotiating he goes on about. It's him that is not negotiating. I've simply denied that the fee demanded is relevant. I could make an offer just to delay things, say £100. But not really happy that either.

Not sure what their actual success at the IPEC court is but I have found an interesting document worth a read. I am yet to go through all of it but it spells out how things at the IPEC don't go so smoothly for Pixsy-like firms. Interesting read for victims like me, it's https://papers.ssrn.com/sol3/papers.cfm ... ments%20of.

I hope an actual lawyer gets the facts right but seems to me that folks have gone to court and, who knows how it went. Someone over on Legal Beadles said that no-one went to court or that no-one mentioned a case going to court and succeeding. Who knows.

Thanks again. I'll keep this thread updated for upcoming victims of this company as sure as sin, there will be more.

[AndyJ]

Steve,
As you don't have the money to pay for legal advice and this is an interesting case, try contacting the IP Pro Bono unit: https://www.ipprobono.org.uk/

[stevedavies]

I've had no success with the likes of them but have not gone to that site. I did try Lawworks, no luck there. Tried some pro bono services to no avail.

I think all I've achieved is dispute in the eyes of IP law. Pixsy have folks like me by the bols as it's an issue that Creative Commons never fixed. The CC 2.0 licenses should be scrapped and they have not enforced that. It's a normal process for the IPEC small claims to see small amounts like £100 to £1000. The GOV site has all the IPEC details and it's clearly common for small claims like around £500 to go to court. I guess Pixsy really just want something not nothing. I feel the ball is in their court not mine. While they can't prove loss of income or even break down the costs, they can claim, on the guy's behalf, any statutory damages i.e. attribution failures.

I am seeing how it goes. Appalling as it is. Sadly, think it's best I find a way to pay Pixsy. Shame. But all the disputing I'm doing won't stop a court case. These lawyers that Pixsy use do clearly know what they're doing, as in confident about winning Pixsy cases otherwise they would never bother.

I think the advice here has reached its limits. But I am thankful for what has been shared.