I would appreciate some guidance on how to respond to a claim I received for about £550 from a well-known London-based online image ambulance chaser company for an alleged online image infringement.
The image in question appears to have been used in one of our webpages historically, having been obtained as creative commons media from Wikipedia, where it is freely available under a CC-BY-SA license. The sole stipulation appears to be correct attribution.
It would appear that the correct attribution, although stored in our system, was not displaying on the part of the webpage where the image was used.
The letter states that my site "has been using their imagery without permission or a valid license."
The photographer appears to be a professional who sells other images elsewhere, although this one is available for free, as stated.
It would appear that my alleged tort is that we have not met the attribution requirements.
As such, this is, presumably, a moral infringement, rather than a copyright infringement? So how does one put a value on the loss incurred by the photographer? Presumably this is very difficult because the image itself would have been free, and any gain would merely have been reputational through seeing the license text?
In probing further, though, some things don't quite add up. The claimed "created date and location" of the source image (on wikipedia) has a date ten years after the actual image was first uploaded there. Also, the "owner" of the media is listed as a company set up in 2022 with one director who is not the photographer (by name), very little financial activity and a small amount in the bank. I'm wondering is this is a scam using Pixsy as an instrument?
Anyway, I would be extremely grateful for some advice regarding how to approach this, and how to arrive at a sensible resolution?
Chris
Image available freely from Wikipedia, but not attributed: Ambulance chaser claim
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Re: Image available freely from Wikipedia, but not attributed: Ambulance chaser claim
Hi Chris,
I wouldn't go so far as to characterize this as a scam but it is certainly going against the spirit of the Creative Commons movement. As you will see from the current CC website they advocate using a less confrontational approach (at least initially) for resolving discrepancies over licensing breaches. It can't be ruled out that some professional photographers are using this CC licence route to raise revenue. The phenomenom is sufficiently real to have attracted an academic paper on the subject, but clearly Pixsy just see it as another route to making money, and we know that they are unconcerned by any ethical considerations. As for the activities and ownership rights of this other company, they would need to provide evidence of good title before anyone should accept that they have any standing to bring this claim via Pixsy, if that is what Pixsy are in fact claiming.
In my view you had a valid licence but since you have not fully complied with the terms of the licence you are in breach of contract*. That is not the same as having infringed copyright in the image. This is not the place to go into contract law in any detail, but generally speaking the courts aim to make a contract viable again by ordering proper performance or if that is impossible, by ordering that the contract be set aside in whole or in part. The question of any damages arising from the breach tends to be done on a purely commercial basis - ie what has the aggrieved party suffered by way of financial loss, either directly or indirectly from the breach? In this instance it is hard to calculate the proper level of damages, since failing to provide an attribution (per section 77) is a matter of moral rights, and therefore actionable under section 103 as a breach of statutory duty. In theory this has nothing to with the value of the licence (which, of course, in this case is nil), nor do I think the photographer's normal rates can be used as the yardstick, for the simple reason that he was offering use of the image for free. Furthermore there have been very few cases in the courts worldwide involving CC licences from which we can draw inferences about the level of damages which would be appropriate. What we can say is that £550 is certainly not the appropriate figure. I would be tempted to suggest asking Pixsy to explain the breakdown of how this figure was arrived at but we know that would be pointless and only encourage them to push out more meaningless waffle. Separately, I would strongly suggest you report the whole matter to the Creative Commons website, as they take a dim view of this sort of behaviour which tends to bring the movement into disrepute, and although that won't help you in ths particular instance, it may lead to further improvements to the wording to the CC licences in future.
So to conclude, I have no idea what would constitute a sensible figure for a counter offer to settle.
* As an aside, it would to interesting to know if Pixsy are offering any evidence that the credit was not being provided from the outset, or if they are assuming this to be the case based on the website at the time they discovered the image. Since the WayBack Machine frequently doesn't correctly archive images along with the accompanying text, there may be no historical evidence either way.
I wouldn't go so far as to characterize this as a scam but it is certainly going against the spirit of the Creative Commons movement. As you will see from the current CC website they advocate using a less confrontational approach (at least initially) for resolving discrepancies over licensing breaches. It can't be ruled out that some professional photographers are using this CC licence route to raise revenue. The phenomenom is sufficiently real to have attracted an academic paper on the subject, but clearly Pixsy just see it as another route to making money, and we know that they are unconcerned by any ethical considerations. As for the activities and ownership rights of this other company, they would need to provide evidence of good title before anyone should accept that they have any standing to bring this claim via Pixsy, if that is what Pixsy are in fact claiming.
In my view you had a valid licence but since you have not fully complied with the terms of the licence you are in breach of contract*. That is not the same as having infringed copyright in the image. This is not the place to go into contract law in any detail, but generally speaking the courts aim to make a contract viable again by ordering proper performance or if that is impossible, by ordering that the contract be set aside in whole or in part. The question of any damages arising from the breach tends to be done on a purely commercial basis - ie what has the aggrieved party suffered by way of financial loss, either directly or indirectly from the breach? In this instance it is hard to calculate the proper level of damages, since failing to provide an attribution (per section 77) is a matter of moral rights, and therefore actionable under section 103 as a breach of statutory duty. In theory this has nothing to with the value of the licence (which, of course, in this case is nil), nor do I think the photographer's normal rates can be used as the yardstick, for the simple reason that he was offering use of the image for free. Furthermore there have been very few cases in the courts worldwide involving CC licences from which we can draw inferences about the level of damages which would be appropriate. What we can say is that £550 is certainly not the appropriate figure. I would be tempted to suggest asking Pixsy to explain the breakdown of how this figure was arrived at but we know that would be pointless and only encourage them to push out more meaningless waffle. Separately, I would strongly suggest you report the whole matter to the Creative Commons website, as they take a dim view of this sort of behaviour which tends to bring the movement into disrepute, and although that won't help you in ths particular instance, it may lead to further improvements to the wording to the CC licences in future.
So to conclude, I have no idea what would constitute a sensible figure for a counter offer to settle.
* As an aside, it would to interesting to know if Pixsy are offering any evidence that the credit was not being provided from the outset, or if they are assuming this to be the case based on the website at the time they discovered the image. Since the WayBack Machine frequently doesn't correctly archive images along with the accompanying text, there may be no historical evidence either way.
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