Picrights.com copyright claim escalation. Any IP lawyers?

[chris_from_manchester]

Two weeks ago, my company received a letter from picrights.com saying they were acting on behalf of PA Images and that there were two images on our website which they believed we didn't have a license to use.

They demanded to see a copy of our license or else pay £400 to settle the matter, with the amount being based on what would have been the license fee for using those images, setting a deadline of 14th July 2019.

We've since exchanged a number of emails about the matter, and one phone call in which their own member of staff mentioned that there was a 6 year limitation for a claim to be made. This is pertinent because the images are attached to obscure blog posts dated 2011 and 2013.

To cut a long story short, despite not agreeing that we have done anything wrong I decided to make a counter offer of £90, which is the amount it would cost to license one of the images for 5 years according to the pricing displayed on the PA Images website currently.

Picrights.com responded summarily today saying that they reject my offer, have rescinded their original offer so that it no longer stands and would be instructing lawyers.

So... I haven't refused to pay, but they haven't come back with a counter-offer or stating that the original fee is the minimum they would settle for, instead opting to escalate the matter when I've been responsive and relatively helpful in a situation which basically presents as extortion.

Sounds like typical scare tactics, but I've got a lot on my plate and I don't want to have this hanging over me.

What should I do?

 

[Alan]

Screen shot the evidence of pricing would be my first suggestion.

 

[obscure]

What should I do?

I noticed that the one thing you haven't said is "they were wrong, we do have a license".

So, on that basis the best thing you can do is go back and agree to their offer, with the second best things being cross your fingers and hope really hard that they are stupid and mistakenly don't pursue you because they believe the 6 year limitation applies in this case.... which it wouldn't. Put simply copyright infringement isn't a one time offence... it is ongoing for the period during which you use the copyright material so any limitation period would only start from the time you ceased using the materials. What is more the penalties increase over time exactly because of the ongoing/long term nature of the offence.

They have approached you with an offer to settle the matter. You have not accepted. They are under no obligation to accept your counter offer* or to make a counter-counter offer. They have been reasonable in attempting to settle what is a serious case of infringement and as you have not reached agreement they have every right to proceed with legal action via IPEC (Intellectual Property Enterprise Court).

Here are a few examples of cases that have been brought since the formation of IPEC...
Harlot's Shame
£20,000 settlement
Cardiff Steal

As I said above you could just keep your fingers crossed and hope. However, like sticking your fingers in your ears and going "la la la I can't hear you", finger crossing is not actually an effective protection against prosecution. Personally I would be biting their hand off to accept the £400 offer as it is well below any penalty you will end up paying if this goes forward to court.

* You could have licensed the images originally but chose, for whatever reason (ignorance or wilful disregard) not to and instead committed at least two cases of long term infringement. Your counter offer to pay only what you would have paid had you licensed them (without any penalty for over 6-9 years of infringement) is derisory.

 

[obscure]

Screen shot the evidence of pricing would be my first suggestion.

Meaningless because they didn't pay the license. They chose to take and use the images without permission, for business purposes/financial gain, over an extended period of time (9 years in one case).

You don't get to just pay the license fee and walk away.

 

[chris_from_manchester]

Screen shot the evidence of pricing would be my first suggestion.

Thanks, I've done that but one of the issues is that I've asked them to quantify how they've arrived at their price for the license fee e.g. number of views, type of website, duration of use. They haven't quantified that though, which means I don't feel I can come back with what is necessarily a fair counter-offer.

Meaningless because they didn't pay the license. They chose to take and use the images without permission, for business purposes/financial gain, over an extended period of time (9 years in one case).

You don't get to just pay the license fee and walk away.

...a serious case of infringement

You could have licensed the images originally but chose, for whatever reason (ignorance or wilful disregard) not to and instead committed at least two cases of long term infringement. Your counter offer to pay only what you would have paid had you licensed them (without any penalty for over 6-9 years of infringement) is derisory.

Not sure how you'd deduce any of this from my original post - but you're hardly impartial given your profession I suppose.

To explain a little, the posts were created when the website was owned and run by a different company, and buried hundreds of posts deep in a blog which received practically zero traffic. I only acquired the company 2 years ago, inheriting the website in the process with the intention of replacing it once our new one was ready.

For all I know, a license could have been purchased at the time, but given that the business changed hands in 2012, changed domain name (with loss of all historic emails) in early 2013, a liquidation in mid 2013, and with the new co. suffering a total loss flood in 2015, there is no paperwork and no help available from previous directors/owners.

The current company has a fairly expensive iStock subscription which we use for for all image needs, and we certainly don't do anything that infringes anyone's copyright, wilfully or otherwise.

Regardless of this, I'm not disputing whether the images in question were displayed on a website my company now owns on the specified date of the infringement, which is Nov 2018, and am happy to settle for a reasonable amount. £400 is not much money, but they contacted me out of the blue about something I had no prior knowledge of, of course I'm not just going to pay without asking any questions.

Incidentally, the site has been replaced in its entirety since then, with none of the original blog content retained, because it was outdated and had no commercial value. Ho hum.

 

[Deleted member 59730]

any limitation period would only start from the time you ceased using the materials.

Just to clarify there is no limitation period for copyright claims until they discover evidence to take to court. How many years after 1st publication did the Procul Harem case take to come to court?

 

[paulears]

You admitted you did it. Best now is to mitigate the amount you want down in a pleasant way as what’s the point in defending it to a judge? Yep, we did it but it was unintentional and we don’t know. The judge might consider their offer reasonable or not but why let it get that far? Pay up and try to get the cost down

 

[The Byre]

I'm not an IP lawyer but I do have to deal with IP issues on an almost daily basis.

In this issue, as in all IP issues, it is ALWAYS down to the details. Some things are just not clear here so let's clear a few things up -

• Is the Ltd. company running the business the same company as the one that was running the blog? Just who was legally responsible for that blog?
• Picrights is a Penny-Annie company with no capital or even any filed returns, that is owned and run by a 40-yr-old French woman called Anne Quilliet and is one of the hundreds of catch-em-if-you-can similar outfits scraping the internet looking for unlicensed pictures. It is possible and even likely that there is no relationship between her and the owner of the rights.
• PA Images is the image division of the old Press Association (founded in 1868!) and as such is perfectly able to speak for itself and find its own rights transgressions - which indeed it does.
• Now maybe, just maybe you do owe the Press Association money, in which case I would be dealing with the PA if possible and not Ms. Quillet - you give money to the organ grinder and not the organ grinder's monkey! Do you?
• Also, maybe, just maybe the PA did ask Ms. Quillet to trawl the web for unlicensed use of its images, in which case she is acting in accordance with her client's wishes and is entitled to collect on their behalf. Is she?

I would find answers to those questions FIRST.

 

[Mr D]

Thanks, I've done that but one of the issues is that I've asked them to quantify how they've arrived at their price for the license fee e.g. number of views, type of website, duration of use. They haven't quantified that though, which means I don't feel I can come back with what is necessarily a fair counter-offer.




Not sure how you'd deduce any of this from my original post - but you're hardly impartial given your profession I suppose.

To explain a little, the posts were created when the website was owned and run by a different company, and buried hundreds of posts deep in a blog which received practically zero traffic. I only acquired the company 2 years ago, inheriting the website in the process with the intention of replacing it once our new one was ready.

For all I know, a license could have been purchased at the time, but given that the business changed hands in 2012, changed domain name (with loss of all historic emails) in early 2013, a liquidation in mid 2013, and with the new co. suffering a total loss flood in 2015, there is no paperwork and no help available from previous directors/owners.

The current company has a fairly expensive iStock subscription which we use for for all image needs, and we certainly don't do anything that infringes anyone's copyright, wilfully or otherwise.

Regardless of this, I'm not disputing whether the images in question were displayed on a website my company now owns on the specified date of the infringement, which is Nov 2018, and am happy to settle for a reasonable amount. £400 is not much money, but they contacted me out of the blue about something I had no prior knowledge of, of course I'm not just going to pay without asking any questions.

Incidentally, the site has been replaced in its entirety since then, with none of the original blog content retained, because it was outdated and had no commercial value. Ho hum.

You took on the company, debts and all.
Up to you then to make sure of everything.

I'm not a photographer but can appreciate the knowledge and understanding obscure has.

Its up to you though. The fact the images have been kept for so long is an issue, you have taken them down the minute you were told about the problem?

If you cannot prove the business holds paperwork relating to the images then you will be having a problem convincing others the images were paid for.

And the company have no need to stick to the initial offer now. It was rejected. Don't be surprised if the total goes up.

 

[Deleted member 59730]

Picrights is a Penny-Annie company with no capital or even any filed returns, that is owned and run by a 40-yr-old French woman called Anne Quilliet and is one of the hundreds of catch-em-if-you-can similar outfits scraping the internet looking for unlicensed pictures. It is possible and even likely that there is no relationship between her and the owner of the rights.

Are you sure? To the best of my knowledge Picrights is based in Germany and is 100% genuine.

 

[The Byre]

https://beta.companieshouse.gov.uk/company/11172740/filing-history

 

[Deleted member 59730]

If you search in Germany what does it show? Picrights.com have associates all over the place.

 

[The Byre]

It's probably a franchise of similar agencies.

She also has another micro-company called ASQ Consultancy registered at her private address in South London.

https://beta.companieshouse.gov.uk/company/10917465

They don't show a German address. The GmbH is Swiss.

 

[The Byre]

This is all part of the legalised extortion letter industry. Legitimate infringements of copyright are nearly always traced by the owners such as AP and Getty. Marginal claims such as ridiculously old abuses and uses that were put up and taken down straight away are traced by one of the hundreds of 'agencies' that (TBH) give decent and legitimate pursuit of copyright infringement a very bad name.

The whole operation seems to be centered in this case around 'Masterfile' in Canada.

https://www.extortionletterinfo.com/

 

[Deleted member 59730]

This is all part of the legalised extortion letter industry. Legitimate infringements of copyright are nearly always traced by the owners such as AP and Getty. Marginal claims such as ridiculously old abuses and uses that were put up and taken down straight away are traced by one of the hundreds of 'agencies' that (TBH) give decent and legitimate pursuit of copyright infringement a very bad name.

Are you saying that photographers should not get paid their dues because you have found a scurrilous website called extionletterinfo.com.?

Getty, AFP and AP all sub-contract copyright infringements to other companies to do the work. Getty used https://picscout.com/ prompted by some of their photographers. Getty then bought the company http://press.gettyimages.com/getty-images-acquires-picscout/

 

[The Byre]

Are you saying that photographers should not get paid their dues because you have found a scurrilous website called extionletterinfo.com.?

As someone who deals in rights and similar issues, obviously not. I'm talking about those who either find absurd past minor infringements or even invent such infringements that may or may not have been committed in the past and nobody has any way of checking if what is claimed is true.

These bogus agencies send out fishing letters, hoping that the company is either too big to bother with contesting a claim or so small that fear of litigation drives them to pay for something that just didn't happen.

 

[Deleted member 59730]

These bogus agencies send out fishing letters, hoping that the company is either too big to bother with contesting a claim or so small that fear of litigation drives them to pay for something that just didn't happen.

I have been following copyright issues for many years. I have never found evidence of a bogus agency doing this. I have seen many accusations made against reputable agencies and photographers but a bogus scam doing this has not been found to the best of my knowledge.

There was one case in the USA of a lawyer sending millions of emails concerning pirated music working on the assumption thateveryone does it. He was struck off.

 

[John Hemming]

The key to these is to be sensitive to the fact that if it goes to court the costs can rack up really quickly.

 

[dufjax]

I have been following copyright issues for many years. I have never found evidence of a bogus agency doing this. I have seen many accusations made against reputable agencies and photographers but a bogus scam doing this has not been found to the best of my knowledge.

There was one case in the USA of a lawyer sending millions of emails concerning pirated music working on the assumption thateveryone does it. He was struck off.

We had a "copyright enforcement lawyer" letter demand we pay for an image on our website. All images on our website were taken by us but I still had the fear of dread until I checked this.

They were a little vague about which image but decided (in an email sent) it was the one on our homepage, typical the only image without the company logo visible.
They wanted us to remove the image, sign a disclaimer (giving them sole rights I think) and pay £900 damages.

We challenged them asking where the picture was taken, any metadata from the image and also the name of the individual in the image. We still have the original image with metadata including location, we also still regularly work for the customer where the image was taken so could prove/recreate if needed.

They replied they that under GDPR the could not fulfil our request and were not getting in to "protracted communications with us" giving us 10 days to pay or they would instigate court proceedings.
That was in March and haven't heard anything since, so they seem to be taking their time!

 

[chris_from_manchester]

You admitted you did it. Best now is to mitigate the amount you want down in a pleasant way as what’s the point in defending it to a judge? Yep, we did it but it was unintentional and we don’t know. The judge might consider their offer reasonable or not but why let it get that far? Pay up and try to get the cost down

That's essentially what I'm trying to do, the question is - given that they've just ended the conversation, what's my best course of action now? I'm worried if I just make payment with no further response from them beforehand that they might come back with some additional cost "oh we've instructed lawyers now" so costs might spiral. Plus I'm still not clear about the calculation basis for their offer, which is why I counter-offered in the first place but at the same time requested additional info to support their higher figure. They simply declined to provide this information and decided to escalate, which seemed odd.

Is the Ltd. company running the business the same company as the one that was running the blog? Just who was legally responsible for that blog?

Yes same limited company, I accept that my company is (unfortunately) legally responsible for the images being on there on the date in question, whether we knew about it or not.

Picrights is a Penny-Annie company with no capital or even any filed returns, that is owned and run by a 40-yr-old French woman called Anne Quilliet and is one of the hundreds of catch-em-if-you-can similar outfits scraping the internet looking for unlicensed pictures. It is possible and even likely that there is no relationship between her and the owner of the rights.

PAImages cites Picrights on their own site (I can't post a link due to being a new user, but it's on their "about" page) so no debate from me about the legitimacy of their approach.

You took on the company, debts and all.
Up to you then to make sure of everything.

Agreed, but in my defence it's not like there was a formal warranties/disclosures exercise because I didn't buy the company outright. I initially got involved on a part time basis as a favour to a friend, which eventually led to an informal acquisition of some of the shares, the business partnership fell apart and I acquired the rest of the shares to enable the other party to exit whilst protecting my investment and 10 jobs. Regardless I'm not debating whether the company is legally on the hook for this, just looking for advice on what the best course of action is from here.

Its up to you though. The fact the images have been kept for so long is an issue, you have taken them down the minute you were told about the problem?

The images are gone, along with the entire blog and website! If we'd have got the new site live a few months earlier this may not have even happened.

If you cannot prove the business holds paperwork relating to the images then you will be having a problem convincing others the images were paid for.

I doubt the images were paid for if I'm honest (and in any case, I certainly agree that they SHOULD have been), but I'm curious whether IF legal action were brought against my company I could successfully mitigate based on there being no reasonable way that the current company could have a copy of this information AND that the images were not deliberately or even knowingly used by the current company or staff AND that the use was very obscure (in contrast to obscure's examples, where the usage was very prominent, deliberate, and of significant value to the plaintiff). Mitigating to a point where we could avoid being liable for costs. In which case, I'd be comfortable leaving it alone until they re-approach me outside of court.

 

[Deleted member 59730]

but I'm curious whether IF legal action were brought against my company I could successfully mitigate based on there being no reasonable way that the current company could have a copy of this information AND that the images were not deliberately or even knowingly used by the current company or staff

In copyright cases there is no mitigation but the IPEC judges are not consistent. I would write back explaining the situation in simple terms and suggest that your offer will be mentioned in your defence. They are not going to court for £90.

You have removed the image from your server haven't you?

 

[obscure]

Not sure how you'd deduce any of this from my original post

I deduced it based on the information you provided, which was that it was your company and your website.

Had you given a full and accurate description of the situation in your original post you would have got a different reply.

.....but one of the issues is that I've asked them to quantify how they've arrived at their price for the license fee e.g. number of views, type of website, duration of use. They haven't quantified that though, which means I don't feel I can come back with what is necessarily a fair counter-offer.

Unfortunately you are misunderstanding the situation. This isn't a negotiation of a license fee, it is the negotiation of a settlement to avoid a legal case for copyright infringement that (if it goes ahead) will cost you a lot more than the license fee.

How much a license would cost and what it would cover would only be relevant if they were granting you a continued license for onward use. Given that you took the images down you don't need that, so the license fee portion of the settlement is for the various uses you have already made of it. But that is not the only cost. The figure quoted will also cover additional damages that occur as a result of infringement. Some of the factors the court takes into account are....

• Flagrancy – for example were there multiple instances and did they continue for a prolonged period - Yes
  
• Flagrancy and criminality - Was the image used for business and should the infringer have known it was protected by copyright. If so then it is a criminal offence known as “copyright theft”. - Yes
  
• Benefit to the infringer - was there one? Yes
• Devaluing the image - if someone uses an image it can no longer be licensed on an exclusive basis as it has already been used by someone. That reduces it's value.
  
• Consequential losses – by using it they expose it to the possibility of further theft.
  
• Cost of pursuing recovery
• ... and more

While you personally may be innocent of the infringement, due to having just arrived at the party, the company you are responsible for isn't. The other party has met the requirement to be reasonable by offering to settle and given you a deadline to do it by. You have opted not to do so. Just because you asked questions (that your lawyer should have told you aren't relevant) and made a counter offer is irrelevant. They aren't obliged to enter into further negotiations.

Instead of thinking about how the settlement figure relates to the license (it doesn't at all) you need to be focusing on how the settlement figure compares to what they will be awarded by IPEC. The latter is going to be much higher than the settlement figure so if you do want to try negotiating you are going to have to make an offer that is much closer to the settlement figure than to the license fee.