PicRights notification email - more than £2K !!!

[alivejohnny5]

Hi, firstly many thanks for the excellent information on this forum, it's really appreciated.

I received an email from PicRights regarding an image which was used on an old website of mine. The website was a commercial one advertising my business services, where I used an image at the time which depicted a generic scene for services we offered (without going into details, it is visually the same as the one they claim I have used). The website remained live since 2013 until recently (i.e. until March 2025), when it was removed from the server (as the PicRights email stated to remove it immediately from service), as I no longer trade under that name or offer the original services. All of our images on the current website are fully licensed, but this doesn't help with the old website - so I need some advice as to where I stand regarding PicRight.

The cost they seek to charge is more than £2k for a small image, which is eye watering (I am still a small company, so it's a massive hit). The image was used on my website since 2013, and was never changed or altered since the day it was published, until when the website was removed recently from the internet (as previously mentioned, its redundant and should have been removed a long time ago). Firstly, I am not trying to avoid copyright infringement, as I appreciate that people must make a living. I have had my own work plagiarised in the past and it's not a nice experience. All images we currently use for our newer website (since 2019) have all been licensed, but this is a separate issue from what's being discussed.

My very limited understanding is that as the image was published on my website more than 6 years ago, and in accordance with copyright infringement limitations the copyright infringement issue cannot be brought to court (I am located in Northern Ireland, so I hope the UK law also applies here for this instance). How can I prove that the image was published more than 6 years ago, since I have removed the files from my webhosting company? I have the original files on my local hard drive which show in the metadata that they were last edited on 2013, so is this enough proof? Or is it up to the claimant to prove that the image was less than 6 years ago? Also, should I pay the costs, although I think these are extortionate for a basic rather generic image? Your help would be greatly appreciated, as I'm really stressing about this issue. Thanks!

[AndyJ]

Hi alivejohnny5 and welcome to the forum,

The simplest way to find a copy of your old website as at the date in 2013 when you think the image was first uploaded is to use the WayBack Machine at the Internet Archive. Hopefully they will have indexed the site around that time. If that fails to produce a useful timestamp, do you or your hosting service have the logs for the site? Or better still any backup copies? If these exist they should show the date the image was uploaded, although if you use a hosting service you may need them to produce an affidavit which records the date, so that this can be used as evidence in court if that is needed.

Separately, it would be sensible to also try and find what the current licence fee is for the image concerned as this will be necessary as a fall back position if you are unable to establish that the limitation period has expired.

[snapperman67]

the point of limitation starts from the point of discovery of the infringement - not from when it started. I have had this as a defence several times from infringers in Court - on all occasions the judge has deemed the act of limitation began at the point of discovery. Google etc only index 3.5-5% of the visible internet at any one time - so the results given by a rights owner searching for an infringement of their IP can be extremely limited. Expecting to find an infringement instantly upon publication becomes almost impossible. Given that 'clever' infringers/web site designers also hide parts of the site's api so that it cannot be searched by google bots for images - its only when they change the site that sometimes images become visible to reverse searches. Other tricks (which no longer work) were reversing the image, slightly stretching the image, changing it to B&W or severely cropping it. IPEC judges know these tricks and arguments and as long as the clamant can prove they acted immediately in notifying the defendant of the infringement - that is when the 6 year clock starts.

[AndyJ]

The relevant part of the Limitation Act 1980 is section 32 (1)(b) which says:

32 Postponement of limitation period in case of fraud, concealment or mistake

(1) Subject to subsections (3) and (4A) below, where in the case of any action for which a period of limitation is prescribed by this Act, either—

(a) the action is based upon the fraud of the defendant; or

(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or

(c) the action is for relief from the consequences of a mistake;

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.

Deliberate concealment would need to be established by a claimant in order to defeat a counter claim of that the limitation period had elapsed. This would require detailed argument before a court, which I suggest, would require counsel. This would be a very costly option in an infringement matter where the actual amount of damages (as opposed to the amount demanded by PicRights) is of the order of tens of pounds. Any claimant would thus need to weigh up their chances of winning under these circumstances before bringing the claim to court.

If, as snapperman67 says, there have been cases where "the judge has deemed the act of limitation began at the point of discovery", then I suggest this was because the defendant was not properly represented and either did not argue their case in a convincing manner or simply failed to put in a defence at all. The standard authorities on copyright law do not cite any such cases. The case MCA Records Inc. v. Charley Records* in 2000 established that where an act of authorising an infringing act was concerned, the limitation period started at the time the authoristation was given and the period during which the tort continued was irrelvant. Obviously since PicRights were able to find this particular instance of alleged misue of an image, using a webcrawler, it can't have been concealed in the sort of technical manner snapperman67 describes. Such web crawler technology has been around since well before 2013.

* The main outcome of the case before Rimmer J was appealed, but the Court of Aappeal was not asked to consider the trial judge's finding in respect of the application of the Limitation Act.

[snapperman67]

Im not sure why you keep quoting this case as very specific and time relevant to 1994 when the case was heard. It crosses 2 pieces of Copyright legislation (1988 Act and 1968 Act) when they infringements occurred. The claimant acknowledged he could not personally claim against the defendant for acts prior to (1991 as these had occurred in the 80s) when the legislation was under the old 1968 act which was lax in regards to photography and music.
Also, the main focus of the case was establishing corporate responsibility of the individual in regards to copyright etc. The defendant lost...

[AndyJ]

Snapperman,

I do not understand any of your points. I do not keep quoting the Charley Records case - I've referred to it once and that was in this thread.

The case was heard on late 1999 and judgment was handed down 22 March 2000, not 1994. 1994 was the date of the initial claim which set off the extended litigation here and in the USA.

There is no Copyright Act of 1968 - unless you mean the Design Copyright Act 1968 which consisted of two sections and was focussed on a very narrow amendment to the 1956 Copyright Act concerning the design of manufactured goods.

Both the 1988 Copyright Designs and Patents Act and the 1956 Copyright Act are totally irrelevant to my point about limitation periods. The relevant law for this, as I said, is the 1980 Limitation Act. That Act was the current law when the MCA Records v Charley Records case was being heard (and indeed when the litigation first started), and so Mr Justice Rimmer's finding in the High Court of England and Wales on the issue of limitation remains good precedent which has not been overturned in a subsequent case. Indeed in the later case of Ludlow Music Inc Ltd v Robbie Williams et al in October 2000, the defence relied on the decision of Rimer J. in MCA Records Inc. v. Charley Records Inc of 22nd March 2000 for the proposition that a licence to record is a one-off event authorising recording for the period of the licence.

I would accept that if one needed to look at events which preceded the 1980 Limitation Act then the provisions of the Limitation Act 1963 contained in section 7(5) then the claimant was in a much more favourable position when it came to his state of knowledge about a tortious act:

(5) Subject to the next following subsection, for the purposes of this Part of this Act a fact shall, at any time, be taken to have been outside the knowledge (actual or constructive) of a person if, but only if,—
(a) he did not then know that fact ;
(b) in so far as that fact was capable of being ascertained by him, he had taken all such action (if any) as it was reasonable for him to have taken before that time for the purpose of ascertaining it; and
(c) in so far as there existed, and were known to him, circumstances from which, with appropriate advice, that fact might have been ascertained or inferred, he had taken all such action (if any) as it was reasonable for him to have taken before that time for the purpose of obtaining appropriate advice with respect to those circumstances.