PicRights "infringement"

[Highland82]

HI all

I have researched and researched but cannot find the answer to my specific query, so hoping someone may be able to help, or perhaps point me in the right direction?

I run a travel website, and we only use images from hotel imagebanks/media banks.

Picrights contacted me to say that one of the images were owned by reuters and want me yo pay £370 "to settle the matter"

I sent them the link to the imagebank, which quite clearly states that the media can be used, and how it should be attributed (which we did/do)

They have now come back saying that we were negligent in our due diligence and that the photographer deserves paid, and that that imagebank don't have the right to grant us permission.

My query I suppose is around intent and good faith. Regardless of who the licence holder is, if someone has posed in such a way that they claim to represent the image, and thus hold the licence, can I be held liable for believing them?

Is it reasonable to expect me to contact every media agency to check if they hold claim over every image we ever use, despite being given permission by someone else?

We took the image down immediately while we investigated, however I understand this doesn't solve the issue. Reverse searching the image doesn't lead to reuters either. But it is interesting to note that the image is used on multiple similar websites. I cannot see it on a stock image repository.

Any advice would be very much appreciated.

[AndyJ]

Hi Highland and welcome,

Copyright infringement is a matter of strict liability which means that even if you acted with a good faith belief that the image was provided with a free licence, you could still be liable. However there is a strong argument that you were authorised to use the image by the supplier, and that they are the ones liable for the infringement. See section 16(2) of the Copyright Designs and Patents Act 1988.
I don't know who you are referring to when you say you got the image from 'the imagebank' . There are several websites which use this term. You need to check their terms and conditions to see exactly what they say about the copyright status of the images they supply. If the t&cs are clear and positive that the images can be freely used that would support the argument that you were authorised by them. However if the t&cs are vague or use words like 'we think/believe all the images we supply are free to use' then you are on weaker ground, because that puts the onus on you to do the due diligence.

Andy

[Highland82]

Hi andy

Thank you for your quick reply.

The "imagebank" i refer to is that of a hotel who we feature on our website. They provide access to images within a password protected area, and their usage agreement is

"[hotel] images and videos can only be used for marketing the [hotel] services and products. All other use is strictly prohibited. Mediabank material is all rights reserved.

Credits in all media: [hotel]"

I am happy to provide the url by pm if that is of any use/interest.

Based on the above, I believe that our due diligence was as robust as could be reasonably expected, but obviously a law may take a different view?

S

[AndyJ]

Thanks for the clarification. I would suggest contacting the hotel and ask about the provenance of the particular image or images concerned. It certainly sounds, from what you have posted, as if they are claiming either ownership of the copyright or an exclusive licence in them, since they are effectively sub-licensing them to users like yourself. If you get a positive response from them, I suggest you just email it on to PicRights and tell them to sort it out with the hotel. I very much doubt that PicRights will want to pursue this any further as it is clearly not a clear win for them and the last thing they want is to lose a case if it went to court.

[Highland82]

Thanks Andy

I did send the hotel an email, and there was no reply. The image is now curiously missing from the image bank, so I guess that tells the story.

I had planned in sticking to my guns with PicRights, perhaps even quoting 16(2) C of Copyright Designs and Patents Act 1988, and that I believe the use of the image was done in a fair and legal way. Should they have any concerns then their issue should be raised with those claiming to own the image, and not someone who believed beyond any reasonable doubt that their actions were lawful.

Is this a reasonable response in your opinion? No warranty of your advice is expected.

Thanks

[AndyJ]

Hi Highland,

In the absence of any support from the hotel, have you also tried contacting any of the other users you mentioned in your first posting? What you are looking for is anyone who can back up your experience of using the site in the good faith belief that the hotel owned the copyright or were authorised to sub licence it in connection with publicising the hotel. Unfortunately without the ability to link to the image on the hotel imagebank it will be difficult to substantiate your version of events. By all means reply to PicRights in the manner you have outlined, but don't expect them to just drop the case straight away. They may well have also gone after the hotel, and so know that your version of events is true, but that will probably not put them off pursuing you as well.

[Highland82]

Hi Andy

Thank you for your advice.

I the first instance I have now cone back to picrights and explained that I believe their fight is with the website claiming rights over the image as any reasonable person would not be expected to question a reputable source such as the hotels very own imagebank.

I have also without prejudice offered a one-off £99 goodwill payment which represents roughly twice the cost of licensing a similar style of image from the likes of Adobe etc. This gives the sharks a "win", gets the photographer paid (if they ever see it) and quite frankly saves me a shed load of time if they go for it.

If not, then it will be back to the drawing board.

Hugely disappointing. While I know that copyright theft is a big issue, one would expect them to behave in a more professional manner than trying to basically extort huge fees from people that cannot afford it.