Charge for using copyrighted photo PicRights

[Doug71]

I know a woodworking forum is not the place for legal advice but there are many knowledgeable people here and I'm asking for a friend, also might be useful for other people if they get caught up in this.

My friend has a small independent shop, she recently got contacted by PicRights asking for a payment of £350 as apparently she used a copyrighted picture on her website 8 years ago. She got the picture off the internet and it was for her blog which was asking for charity donations for some disaster that happened at the time, it wasn't even for commercial gain

She contacted PicRights and they are now saying £250 if paid promptly but also threatening court action if non payment.

I Googled them and looks like it's not a scam but more like chancers.

Anyone had similar dealings? What's the best way forwards? Is the fact that the picture was not for commercial gain relevant?

I'm guessing they pitch their fine at about the same price as a solicitors letter for a reason. Think she is worried if she pays the fine they might come back with more.

Any advice appreciated.

 

[AJB Temple]

We had a spate of this some years ago when a trainee graphic designer in my then business used several copyrighted pictures (they claimed) and levied numerous charges of similar quantum. My business partner is a solicitor and she wrote that they were in the public domain and had no copyright assertion on the images. They went away but the hassle is not worth it and I made sure the brochure and web design team did not harvest images freely from the internet again.

I do believe in IPR and it is wrong knowingly to steal images that another has created. I watermark mine these days via DxO 4.

 

[powertools]

Just delete this photo and all others that have just been copied from the internet for your own use asap and ignore the request for payment and don't do it again.

 

[Jameshow]

https://copyrightaid.co.uk/forum/viewtopic.php?t=2783
Helpful link

Cheers James

 

[MikeK]

If your friend did not own the copyright for the image or coordinate with the copyright owner to use the image, then she might have to pay PicRights if they are representing the copyright owner. I doubt it matters much if the intent was to use the image for personal gain or charity work.

Many years ago, I noticed some unusual activity in a gallery on my website that had about a dozen images. I used an image search program to find a match for each of the images on the Internet. This doesn't work all the time, but in this case, I found a match for one image on the main page of a U.S. travel agency website. I didn't bother with a DCMA takedown notice, but instead sent a bill via certified letter to the registered owner of the website, with a promise of legal action if the owner didn't take down the image and pay for the time it was used. My letter included screenshots of the travel agency website and a link to my image gallery. I also offered a license fee if the owner wanted to continue using my image.

The owner initially claimed ignorance of such matters and tried to shift blame to the website developer, who was not clever enough to remove my copyright notice on the image. I suggested the owner take this up with the web developer, but I was prepared to elevate my claim and sue him. After about a week, the owner accepted my offer for a six-month license and asked for my PayPal account. As soon as I confirmed the funds had been transferred, I sent the owner a high-resolution image to replace the screen capture version the web developer used.

 

[profchris]

The thread linked to by JamesHow seems to me to be a pretty accurate statement of how best to proceed. Make an offer to pay a reasonable licence fee, based on the standard charge of the copyright owner.

I believe that PicRights works roughly like this:

1. It searches the Web for images and does an image lookup to see if they are owned by someone who might claim a licence fee.

2. They contact the rights owner asking to represent them in making a claim, on a no-win no-fee basis.

3. If the rights owner agrees, a solicitor sends the kind of letter your friend has received.

4. With luck your friend just pays, and Pic Rights makes a nice fee.

Your friend should be able to find the rights owner via a reverse image search. Its website might show its standard licence fee, which is what a settlement should be based on. There's no doubt the rights owner has the right to make a claim, but not in excess of a reasonable licence fee plus expenses (see the thread for suggestions). If PicRights will settle for £250, then the rights owner would probably charge less than half that.

 

[Doug71]

Thank you guys, someone is trying to track down who owns the original image and sort it that way.

I know ignorance is no defence but it was a totally innocent mistake. She pays someone to do her social media and I'm sure they wouldn't make this mistake but as I say this was just a quick thing for charity she put on the blog herself, the amusing thing is it only got one view

 

[Chris152]

I recently wrote something I want to publish online and got caught up in the copyright question relating to the images I'm using - the images I'm writing about are out of copyright but the photographs of them are more recent so aren't. Tbh it's all so utterly boring I can't get my head round it, but a friend pointed out the term 'fair use' in relation to academic (no profit) works, maybe the same term applies to your friend's case (use for charity), Doug? This seems to be in the US, but maybe that's where the claim's coming from? And does it matter where the claim's coming from? Gawd knows.
https://www.collegeart.org/pdf/fair-use/best-practices-fair-use-visual-arts.pdf

 

[profchris]

It does matter where the claim is coming from I'm afraid. Different laws in different countries. In the UK the fair dealing exception doesn't cover use for a charity.

Photos are almost always in copyright unless the photographer is more than 70 years dead. If you didn't take it yourself, or acquire the right to use it, you run the risk. Just finding it online means nothing.

 

[timothyedoran]

Wow that sounds super annoying. We get told at work not to nick images from the interweb for this reason. It's very tempting to ignore the rule. Thanks for the reminder, and I hope your friend resolves this in an cost neural way.

 

[glenfield2]

I have a number of friends who are professional photographers whose work is routinely ‘stolen’ off the internet. Ditto journalists’ work. It’s not just by individuals or small agencies but large companies too. I’m afraid my view is that in the main this isn’t done by accident or ignorance but because a) the likelihood is they won’t get caught - and b) clients want a cheap deal so corners are cut.
It’s rather like people who want their rubbish cleared and happily accept the cheap price from a man in a pick-up truck who all of us know will tip it in a ditch somewhere.

 

[profchris]

I think it's more complicated than that (though no-one here wants my several pages of academic writing with footnotes which analyse this!).

1. People don't actually obey the law because they don't know precisely what it says. Instead they obey what they think the law is (which is influenced by what they think it ought to be).

2. Copyright law has been negotiated over the years by commercial producers and users of works like photos, so it is completely ill-adapted for the kinds of casual or private use that are nowadays made online. Before the internet, private uses were just ignored as being trivial.

3. There is now a strong social norm that stuff online should be shared, strengthened by all the sharing tools built into online technology.

4. If someone acting non-commercially did find out what copyright law really demands and tried to comply, they'd discover that the pricing structure for use of works is set for commercial uses (see point 2). For example, the photo on a local charity fund-raising page would probably be priced at, say, £10 if the photographer were asked personally.

None of this is going to be fixed for decades for many reasons, including because the "right" answer is really hard to see!

 

[akirk]

I think it's more complicated than that (though no-one here wants my several pages of academic writing with footnotes which analyse this!).

1. People don't actually obey the law because they don't know precisely what it says. Instead they obey what they think the law is (which is influenced by what they think it ought to be).

2. Copyright law has been negotiated over the years by commercial producers and users of works like photos, so it is completely ill-adapted for the kinds of casual or private use that are nowadays made online. Before the internet, private uses were just ignored as being trivial.

3. There is now a strong social norm that stuff online should be shared, strengthened by all the sharing tools built into online technology.

4. If someone acting non-commercially did find out what copyright law really demands and tried to comply, they'd discover that the pricing structure for use of works is set for commercial uses (see point 2). For example, the photo on a local charity fund-raising page would probably be priced at, say, £10 if the photographer were asked personally.

None of this is going to be fixed for decades for many reasons, including because the "right" answer is really hard to see!

Doesn't this also come back to more fundamental philosophy on the right to own anything - from physical property to IP - fundamentally the pattern of finding images and just using them online is basically theft, if someone on here builds a table then they have a fairly understood moral and legal right to enjoyment of that table for their own use - or to sell it (and in our capitalist society, to set any price they wish, the potential purchaser having the choice to buy or not as they prefer). If I pop over to their workshop and take that table, then I am depriving them of that right = theft.

One of the reasons people have a different moral compass with regards to photos is that they see it as a very low cost path to creation - just pushing a button, and as they have little commercial value for the photos they produce on their mobile phones, so they extrapolate that to there being no commercial value anywhere - ignoring the fact that a professional photographer may have tens of thousands of pounds worth of kit, and with some photos they may have been on location for months to get the right shot - the cost of one shot could be multiple thousands of pounds.

This is not helped by big business skewing IP and the patterns of behaviour - on the one side they are very keen to secure swathes of IP for themselves and are very strong in their pursuit of those who may breach that... on the the other side, they see huge commercial advantage in providing tools which completely blast a hole through the norm in how IP is respected - pinterest relies on building commercial value in exploiting other people's IP, facebook, twitter, instagram all allow the spread of other's IP - youtube is perhaps one of the few platforms which actively tries to stop misuse of someone else's IP...

It is frustrating when someone gets caught, but ignorance isn't in itself a defence to breaches of the law, and it is probably a case of pay up and move on...

In answer to specific points here:
- 2 - I don't think it is ill-adapted, there is no basis for causal or 'private use' if it is on the internet then it is not private, nor is it usually casual, effectively what is being said here is that pre-internet private mis-use wasn't spotted so was okay and that the internet hasn't adapted to allow that to continue - surely pre-internet it was still as wrong as it is now, but it is now easier and more obvious (and has more impact) being in a more public arena.
- 3 - as above the social norm is promoted by companies who make money from it - doesn't make it right - society's job isn't to roll with trends changing because they are pushed that way by big commerce / public opinion, it is to establish what is right and provide the framework for that... those who are happy to steal other people's photos may well also be fast to shout if their content is then taken by someone else...
- 4 - it is not tricky to deal with photography at a cheap level - the quality of output from a standard mobile phone is stunning (I recently sold all my pro DSLRs and now use an iphone for 99% of my photography) - so they can take their own photos - there are stock libraries with millions of photos available at far cheaper price points than the more traditional Getty / Magnum type licensing deals - they can approach photographers they find on Flickr / elsewhere and offer to pay a nominal licence fee...

ultimately it is laziness / ignorance / entitlement which leads people to just use photos they find - having owned a stock library in the past, and 30+ years as a professional photgrapher and c. 20 years running a design company perhaps gives me a different perspective, but I don't believe that it is hard, it is only when people are caught out that they will change their habits...

 

[profchris]

The table analogy doesn't work because of what economists described as rivalrousness. Your table is rivalrous because if I take it away you can't still eat your dinner from it. Your photo is non-rivalrous because if I copy it, you still have it and can copy, display, etc it. This is why taking information is not the crime of theft.

The law is ill-adapted in many ways, but just as one example the internet has made previously non-infringing acts into infringements. If I show a friend a physical copy of one of your photos, that's no infringement. If I hold the picture up to my webcam so she can see it, now I'm infringing your copyright. Lots more examples (these are for books and articles, not for here).

The sharing social norm doesn't just come from online companies, though they enable and reinforce it. As a teenager, my friends and I used to meet to listen to each other's records - sharing. Now teenagers share MP3 files. Functionally they are doing the same thing, legally they aren't.

BTW, I recognise that as a professional photographer you ought to get a proper return for your work. But I suspect you might admit that current copyright law doesn't succeed in achieving that for you. If it worked as it is supposed to, it would do that, but it doesn't work as it is supposed to. The reasons are complex, and I've only hinted at them. But I reject any argument which goes "But it would work if people did what the law tells them to do" because law just doesn't work that way, particularly so online. I had to write a book to explain this last point

 

[akirk]

for that first point - I partially agree, though the table illustration could be replaced with e.g. theft of other resources, either where you have large stock so the effect is lessened, or digitally where eg theft of software or a book is taken more seriously than theft of a photo... other examples such as theft of light / air / etc. could also enter the equation... - ultimately it is still theft - and while your taking a copy of a photo doesn't mean that I no longer have that photo, it does remove the uniqueness which has commercial significance in licensing... so there is a degree of theft - though the theft is not of a physical item. It is an interesting aspect of law, and one where I appreciate your deep knowledge v. my amateur lack of knowledge but returning to the original point, I feel it is important to recognise that when someone takes and uses someone else's photo, the law can define it as they wish, they have stolen something of value from that person - we as society are good at dressing it up to avoid feeling guilt or having to take responsibility, but underlying it all someone has taken something that wasn't theirs to avoid spending money, and in doing so have deprived the rightful owner of commercial value in that item...

As a professional photographer and with a history of management consultancy and setting up businesses, I realised early on that you have to adapt to make money, the traditional approaches to making money from photography have got harder and harder - on the other hand, niche market verticals have grown and photographers have specialised... Besides - I make more money from the other businesses I have, so do very little commercial photography now...

 

[Doug71]

I'm learning a lot here, I can see how the internet has really confused the whole copyright thing and many people don't even realise they are doing something wrong. I often put links to images or videos in threads on this forum but it makes me think twice about that.

Apparently the image in question is owned by Reuters News and Media. The photo showed the after effect of a Tsunami (I think the Japanese one) which is what the charity collection was for.

 

[profchris]

The system is badly broken by the digital technologies, especially online ones. Don't get me started on links - all I'll say is that YouTube or Vimeo video links should be OK because they embed the YT/Vimeo origin as well, but other links ... lawyer's answer, "It depends ..."

akirk's point about the need to adapt is a good one. The music industry nearly died because for years it refused to accept that things had changed and tried (but failed) to use copyright law to preserve its old business model. Now it's rebuilding on the back of streaming, but only by keeping most of the revenue rather than passing it on to artists - it's challenge is that the same technology lets artists bypass the industry. The movie industry has done better, but is still on the edge (e.g. the fight over cinema releases versus Netflix premieres). Software has moved from selling you a product to selling you a data processing service (e.g. Adobe video editing).

The interesting thing is that the newer business models don't rely on copyright to preserve their value - they sell you a service, and if you don't pay the service stops. It's harder to turn photographs into a service because each image has value on its own, whereas 1 second of music/movie/data processing is usually pretty worthless. But I see that photo libraries are selling packages, along the lines of "£X per year gets you use of Y images, but you have to keep your subscription going to keep using them."

 

[D_W]

software packages love the idea of leasing software instead of giving you a permanent license. What's an OEM separate license for office pro cost -$600?

You can use office on a PC for more than 6 years if you're most people, but if windows stops offering permanent license, what can you do? They force fee+version change adoption by making you part of a current revenue pool at all times.

As long as the lease fee is substantially lower than the permanent license at first, nobody complains too much. But if you have a PC that you rarely use, or a dedicated machine for intermittent tasks, what do you do? you can't move your old version permanent license to the old PC - you just lose office entirely.

I use excel almost exclusively at work, but not any of the functionality that's appeared in the last 10 years. As long as I can read newer file formats and link to documents, no problem. A lot of the newer programs like cloud outlook try to get smart and layer on options that aren't meaningful to me (like the search logic - instead of sorting things by date now, which I'm used to, the default sort brings up items that it determines to be of relevance. It may guess right sometimes, but for my old brain, it goes out of chronological order because of that without notifying my "hey, champ - you're not going to get the emails in order, so don't think you're going bonkers because the email you're looking for from last week was deemed irrelevant and is now 6 pages down".

 

[Doug71]

I remember naively presuming that when I bought a film on Amazon that I owned a copy of that film, it was a while before I realised I was actually only buying a license to watch it while it was available.

 

[BenB]

I know a woodworking forum is not the place for legal advice but there are many knowledgeable people here and I'm asking for a friend, also might be useful for other people if they get caught up in this.

My friend has a small independent shop, she recently got contacted by PicRights asking for a payment of £350 as apparently she used a copyrighted picture on her website 8 years ago. She got the picture off the internet and it was for her blog which was asking for charity donations for some disaster that happened at the time, it wasn't even for commercial gain

She contacted PicRights and they are now saying £250 if paid promptly but also threatening court action if non payment.

I Googled them and looks like it's not a scam but more like chancers.

Anyone had similar dealings? What's the best way forwards? Is the fact that the picture was not for commercial gain relevant?

I'm guessing they pitch their fine at about the same price as a solicitors letter for a reason. Think she is worried if she pays the fine they might come back with more.

Any advice appreciated.

It sounds like they’re within their rights. I would write a very polite, humble, apologetic letter explaining that she didn’t benefit financially from use of the image as it was used in error for a charity post. Ask very politely for proof/confirmation that PicRights are/represent the rights owner. Explain that it’s been a rough year for our very precious independent bookshops and there’s not much in the bank. Would they accept a written apology on the website and perhaps a £50 donation to a photography charity of their choice?