Email from PicRights.com

[texan1996]

I received an email from picrights.com and they told me I used a copyrighted picture on my website and they want me to pay $715 for a settlement.

First off:

• I live in the United States. Their company is based in Canada and Sweden.
• The website is expired and not even up anymore.
• I bought a theme from ThemeForest.com that I used for this website.
• The picture came with the theme. How is it my problem?

What should I do? How should I respond?

[Robert Krausankas (BuddhaPi)]

personally i would not respond, leave them hanging, they most likely won't file suit for this image, it would cost them nearly 500.00 just to file the papers, and their letter pretty much states the image in not worth much more than that.. ( actually the image is probably worth much less than they are demanding.. Most themes from themeforest state in the fine print that the "dummy content" including images is for preview use only, and many themes don't even include imagery when purchased, because licenses are non transferrable.

How is it your problem?? well because you used the image, ignorance or "not knowing" won't cut it, so if you respond, don't go down that road, they will quickly shoot it down.

[texan1996]

I think I am going to ignore them, but I contacted my lawyer just in case.

Thank you for your feedback!

[TheOne]

I think I am going to ignore them, but I contacted my lawyer just in case.

Thank you for your feedback!

I would ignore them. I'm in Canada and they've been sending letters every month for awhile now over one image used a year ago on a blog which was heavily water-marked (not that this is an excuse for the use). They're demanding under $50.00, and all the letters they've sent has already put them in the negative. If they decide to sue so be it, you cannot stop anyone from filing lawsuits, and yes - you will lose.

Through my work I've handled many litigation and judgment enforcement files, and normally you don't go on suing rampages unless you either have a point to prove to everyone else (PR reasons), or you have some way to collect on the judgment once granted by the courts. You can sue someone for thousands of dollars, but cannot force them to pay unless you can seize assets that you know of, garnish bank accounts, or go after receivables, ect... (business to business litigation). Personal can be a bit worse if you own property however, and you're working at a secured job.

A lot of these demands are sent out in the masses, and they're just counting on a certain percentage of people who will pay out of fear. I used to issue legal demand letters and it's more about seeing of shit will hit the wall and stick to avoid having to spend additional money and time to pursue the matter in court, as well as the post judgment process.

Again, you have to make the choice on what you wish to do, but I personally would never contact them at any point regardless of letters, emails, or phone calls. You'll need to wait until the limitation period is up, which will be from the acknowledgment date (you can use the date on the first letter they sent). You run the risk of being sued, but it's very unlikely. You're one out of hundreds of thousands of files floating in their system.

[Matthew Chan]

This is pretty spot on for the vast majority of small-time cases. There are some exceptions but most people overreact until they get educated by ELI and get some real perspective.  Getting an opinion from a lawyer who does not closely follow this type of thing will generally end up getting a bad opinion that will cost the client unnecessary money.

Through my work I've handled many litigation and judgment enforcement files, and normally you don't go on suing rampages unless you either have a point to prove to everyone else (PR reasons), or you have some way to collect on the judgment once granted by the courts. You can sue someone for thousands of dollars, but cannot force them to pay unless you can seize assets that you know of, garnish bank accounts, or go after receivables, ect... (business to business litigation). Personal can be a bit worse if you own property however, and you're working at a secured job.

A lot of these demands are sent out in the masses, and they're just counting on a certain percentage of people who will pay out of fear. I used to issue legal demand letters and it's more about seeing of shit will hit the wall and stick to avoid having to spend additional money and time to pursue the matter in court, as well as the post judgment process.

[icepick]

As others have alluded to, the advice you receive is only as good as the person giving it. I've discussed some of these issues with non-IP lawyers or just lazy lawyers and they see the copyright registration and other things and immediately think 'they got us' without ever considering the multiple vulnerabilities a lot of these troll cases have. I've learned more spending an afternoon on Pacer than I would probably get from a generalist attorney who is usually looking for the "easiest" way out.

[Matthew Chan]

I have consulted for a number of lawyers over the years. They pay to speak with me to get my perspective on behalf of their clients.  Many are easy to speak with because they understand the legal side but they also understand my practical perspective.

Most outside lawyers are not going to understand these characters. As you say, they will see "copyright infringement" and that is about as far as it goes. The fact of the matter is 1% of these cases ever end up in a lawsuit. As a rough estimate, there are likely a couple thousand of letters being sent out every year by this industry.  But how many lawsuits ever get filed? And out of those few, nearly all are settled and rarely come close to any judge.

But so much of the heartache and stress is people mentally dwelling in the 1% area.

[Mellow5]

I have consulted for a number of lawyers over the years. They pay to speak with me to get my perspective on behalf of their clients.  Many are easy to speak with because they understand the legal side but they also understand my practical perspective.

Most outside lawyers are not going to understand these characters. As you say, they will see "copyright infringement" and that is about as far as it goes. The fact of the matter is 1% of these cases ever end up in a lawsuit. As a rough estimate, there are likely a couple thousand of letters being sent out every year by this industry.  But how many lawsuits ever get filed? And out of those few, nearly all are settled and rarely come close to any judge.

But so much of the heartache and stress is people mentally dwelling in the 1% area.

So it sounds like your general advice is to ignore, ignore, ignore if it is a single image with a letter demanding a few hundred dollars? (picrights)

[Matthew Chan]

I didn't say to "ignore" these letters.  That is too broad a statement and is not applicable to everyone. I am simply saying that people put too much weight on the possibility of a lawsuit and it makes people crazy and irrational.

"Ignoring" an extortion letter is certainly the easiest thing to do but I don't always recommend it. The smaller the party, the greater the benefit to ignore the letter. However, well-established and profitable businesses don't have that luxury of always ignoring it. Sometimes, they are a target.

It depends on the circumstances. Sometimes, a well-written response is in order to set the facts straight.

So it sounds like your general advice is to ignore, ignore, ignore if it is a single image with a letter demanding a few hundred dollars? (picrights)

[Nicole]

Did you get this resolved?  Did ignoring work?

[JustMax]

I too received one of these emails from PicRights (with a Canadian Address) demanding $280 for the use of a photo I had on my website for approximately 8 weeks (I took it down immediately upon contact).  I did not know the image had a copyright and saw it on literally 40 blogs, so I incorrectly thought it was a public domain photo.  Not an excuse or defense I know, but copyright information doesn't appear to be easy to find.

Anyhow I've actually corresponded with and even offered to settle for a pro-rated about of $60, what I felt was beyond fair. They offered discounts of $200 and $180, but repeatedly declined my $60 offer (I started at $25).  I know that $280 seems like such a low amount, but my business is very small and barely makes $280 a year, certainly not enough to pay $280 for one year's use of a photo.  Not that it matters, but I am disabled athlete and I run my LLC as a means to fund my athletic competitions and making the Paralympics in 2020. My website looks like this big e-commerce site but it just isn't.... Not at all! (But I am guessing that's why I was targeted?)

I was so flustered in receiving the email that I didn't even realize the page they had found it on. I thought I had put the picture on my blog and was explaining how few people have visited the blog since its been up, claiming fair use and they still declined my offer to reduce. 

The thing is, I had the photo on a sales page  where I display two different products that I sell on my site. I can prove that I have never sold one of these two products on my site. Through Google Analytics I can actually prove that exactly 0 (zero) people have visited the page with the photo on it since I created it. So there are no damages, no one saw it other than their sophisticated software crawling bot.

My question is in declining my offer to settle they are referring my file to outside counsel, what do I expect next?  If this was truly a scam, why wouldn't they just take my $60 and run?

[kingkendall]

My advice is you did too much contacting them in the first place.  If I were you I would put all documents into a folder and go on living your life.  Any letters or emails come in, put it into the folder and go on living your life.  The chances of you getting an actual summons and complaint filled in federal court is very low.  Don't be scared, get educated instead and study the forum,  There's plenty of good info here. 

[DavidVGoliath]

The thing is, I had the photo on a sales page  where I display two different products that I sell on my site. I can prove that I have never sold one of these two products on my site. Through Google Analytics I can actually prove that exactly 0 (zero) people have visited the page with the photo on it since I created it. So there are no damages, no one saw it other than their sophisticated software crawling bot.

That argument isn't going to fly.

If you took out an advert in the local paper which offered the same two products for sale, and no-one contacted you or bought either of those products in the period your advert ran for, would you ask your paper to refund you the cost of the advert, or not pay their invoice when it came due?

By using a photograph on a page which you designed to sell products, this constitutes a commercial/advertising use of the image, and will often command higher than standard licensing fees - regardless of whether you actually sold anything or not.

[UnfairlyTargeted]

Maybe that argument is not legally correct.  But there are no damages to be awarded here that any sane person would ever award.  Especially to some talentless hack photographer who thinks their work is worth a million dollars like most of them who use Pixsy and the likes do, and who refused to agree to any sort of reasonable resolution to the problem.

[DavidVGoliath]

Maybe that argument is not legally correct.  But there are no damages to be awarded here that any sane person would ever award.

Sorry, nope; the damage is at least the loss of income that the photographer/rightsholder can prove.

On quite a few occasions, I have licensed images for four-figure sums - sometimes for advertising uses, sometimes for social media uses, sometimes for editorial uses. If someone rips an image from one of my paying clients and then goes on to use it in a similar manner, I can readily prove the extent of my losses. Many other photographers can also prove the extent of their losses in a straightforward manner.

Now, a lot of people may consider the fees I charge from my images to be quite high ("It's just a photograph!" but the clients I work with are happy with both the quality and timeliness in which I can provide work to them, and pay me fees commensurate with both. If someone else wants to use my work, they're free to negotiate a fee in advance of the use but, if my rates exceed their budgets or we can't agree on licensing terms, either party can walk away from the situation without being disadvantaged.

However, if Entity X just rips my work from a licensed source, you can bet that I'll pursue them for at least my lost revenues and, where the local laws allow, I'll tack on multipliers for things like wilfulness, interest fees etc.

It's not entirely unlike Entity X choosing to dine out at a gourmet burger restaurant but, when they've filled their belly and the bill comes due, they try to argue that they'd only have paid €0.99 for the cheeseburger from the McDonald's a few streets away, as that's all they think "a burger" is worth.

With this in mind, the following link speaks to the arguments that are commonly used both for and against the value of imagery, even if it is specific to UK case law.

http://www.bailii.org/ew/cases/EWPCC/2013/26.html

As a side note, the defendant in the above case eventually settled the claim for £20,000 ($26,500/€22,600 at the time of writing)

Especially to some talentless hack photographer who thinks their work is worth a million dollars like most of them who use Pixsy and the likes do, and who refused to agree to any sort of reasonable resolution to the problem.

I think my licensing fees are reasonable, and I'm always open to negotiate fees in advance of my work being published. If you infringe on my works, you can at least expect to pay the same rates that my clients do for advertising, commercial or editorial uses... otherwise, the matter gets referred to lawyers to work out, and you can almost guarantee that the end result will cost the infringer far more than a license would have - which is simply a matter of protecting my business interests and licensing revenues.