PicRights.com

[kingkendall]

If the article or web page is not about the particular photo or the photographer, it is probably not fair use under the news reporting, commentary or education prongs of fair use.   Don’t confuse the subject matter of the photo with the actual photo.

I've seen this argument also about it's only fair use if one is writing about the photo itself and not the subject matter associated with a photo.  I've always had a problem with that.  Especially when it comes to bloggers using an image from an actual news story.  If a blogger uses an image of a news event Eg: Bad guy robs bank caught by cops.  Mom and Pop blogger uses the image of the bad guy who robbed the bank.  How is that not fair use?  He's the one who robbed the bank.  The image was found in a news report.  The copyright law allows for fair use in the context of news reporting and that's what Mom and Pop blogger did.  Mom and Pop blogger is not trying to screw the photographer who took the photo.  They're trying to do the right thing as far as they read the law.  Did they have to go to law school in order to read the law as lawyers instead of as laymen trying to comply with it? 

[DavidVGoliath]

If a blogger uses an image of a news event Eg: Bad guy robs bank caught by cops.  Mom and Pop blogger uses the image of the bad guy who robbed the bank.  How is that not fair use?  He's the one who robbed the bank.  The image was found in a news report.  The copyright law allows for fair use in the context of news reporting and that's what Mom and Pop blogger did.  Mom and Pop blogger is not trying to screw the photographer who took the photo.  They're trying to do the right thing as far as they read the law.  Did they have to go to law school in order to read the law as lawyers instead of as laymen trying to comply with it?

If the scenario you cited were to play out writ large, then no news reporting agency would ever license editorial imagery; they would just take photographs from any source they saw fit and never have to pay a dime in licensing fees. So, yes, there are case precedents where it's been successfully argued that the newsworthy item must be the image itself.

Here's an example that's easy to understand: when Daniel Morel took photographs of the aftermath of the earthquake that hit Haiti, and his Twitter account was the only means of getting those images out owing to all other communications infrastructure being damaged or overwhelmed, Getty and AFP thought those shots were free for the taking. We all know how that played out a few years down the line.

in reporting on Morel winning a $1.2M damages award, many websites around the world would have used one of Morel's pictures to illustrate the case result in a "This is one of the pictures that Getty/AFP infringed on" capacity, and these uses would likely have fallen squarely under fair use exemptions.

So: Getty/AFP (and other outlets who settled directly with Morel) taking pictures of his from his twitter feed = infringement.

Using same pictures to report on Morel's court victory against Getty/AFP = fair use*

(* If the country has such fair use exemptions. As a contrary example, UK law does not allow the 'fair dealing' of photographic works for news reporting)

[Ethan Seven]

DvG nailed it.  That is a good textbook answer on fair use.  Fair use is much narrower than what most people think.  Kingkendall is right that it is easy to misinterpret the language, but ignorance of the law is seldom a defense to any violation.

[Matthew Chan]

This response is not directly at Robert but his post compelled me to state my position.

I declined speaking to someone and promptly refunded the money (after they paid for an ELI Support Call) because I discovered that that person wanted to spend most of their time discussing the ins and outs of a fair use defense.

I generally cringe when people want to use a "fair use" defense. It doesn't mean they cannot do it. It just means, generally speaking, I want nothing to do with it because most of the examples I see really doesn't meet my threshold for a solid fair use defense.

It is a very "soft" defense, very subjective, and very much a grey area which I agree with Robert.

I tell people that they can use any defense they want because it is THEIR CASE. They get to choose.  But that doesn't mean I have to be onboard with it or want anything to do with it. And if they strongly stand by it, they should go consult with a lawyer who is very knowledgeable about fair use defenses.  It ain't me.

And many people still don't get it. Most of these copyright extortion operations don't want to file lawsuits. And so people are desperately looking for an absolute legal defense to shut things down. Unfortunately, I have been following this for a decade. There are very few airtight defenses in most of the situations I see. There are generally only "practical" and "soft" defenses available which are have been well covered here over the years.

An example of a "practical" defense would be someone living that committed an infringement on a personal hobby non-commercial website in their parent's basement and has no meaningful assets and income. A divorced woman who lives on government assistance and has 3 children who was trying to make a few extra bucks with the unintended infringement.  The law makes no distinction about infringements.

But if a pursuing lawyer knows and can verify the facts of the situation of the accused, I am fairly certain they are not going to be that motivated to go full steam ahead on any lawsuit against such parties. It isn't "practical".  Generally speaking, filing lawsuits against broke or impoverished people is not a good use of resources.  But copyright collections are not mind-readers.  Someone actually has to communicate it so they don't think the worse.

That is why I am not a big fan of just "going dark" without some consideration of the pros and cons of such an approach. Lots of factors at play.

"Fair use" defense is something YOU will have to stand by but it is generally very "soft" in my view.

I don't think it matters what the "site" is about...the court would only deal with the image in question, not the site as a whole. Fair Use is solely up to a judge to determine and can sometimes be a very grey area.. see link below:

https://fairuse.stanford.edu/overview/fair-use/four-factors/

[Matthew Chan]

Agreed.

Fair use is much narrower than what most people think. 

[JohnR]

I also have a Picrights email about a singe image on my blog. I have removed the image and done some research, but have not yet responded. The image (on Masterfile, of course) costs $370 for use on a website secondary page; rather pricey, but Picrights wants $1400! It seems to me that to demand anything beyond the listed price constitutes punitive damages, and they can only be imposed by a court and only for egregious, willful actions by the subject. This is especially true, it seems to me, because Picrights is acting as agent for the rights owner, sort of like a collection agency. A collection agency tries to get the bill paid and then takes a commission; the agency cannot simply demand four times the amount owed so he will make more.
Is my logic flawed? Would a court be likely to be sympathetic to this view? If so, it would limit extortion demands to licensing fees alone.

[Matthew Chan]

People assume way too much when they assume their case will go to any court.

I have said it many times.... Statistically speaking, most small time cases never make it to court. Or if they do, they get settled out because no one wants to "go all the way".

And if people do want to assume that their case is going to court and "all the way" then, start ponying up $400/hour for that assumption. It is an expensive and flawed assumption.

[Robert Krausankas (BuddhaPi)]

I'm going to sound like a dick here, but, if you received Getty letters in the past, why on earth did you either not vet all of your images, or why did you continue to use images you had no license for? I'm having a hard to drumming up any sympathy, but I digress. Your options are largely the same as with a getty letter, take a chance and ignore it, or respond, try to settle for less.

[picrightsugh1]

It goes something like ..if you want something done right, you gotta do it yourself.. So yes, everything was "checked" as being license free after getting the Getty notices. Obviously there were a couple missed or added without proper vetting after the fact. Fortunately at the time we received the Getty mailers, there was a whole lot more info online to help us decide how to proceed. I don't see that same volume of info with Picrights, so I'm having a tough time making that call.

[rafhelp]

I also got an email from picrights they said they are acting on behalf of Press Association Images for some photo of cast of suicide squad that I might have used on a personal blog.

I always source images from Royalty free sites or using Google's "free for reuse" or "free with modifcation" settings on Google Images.

They have sent 2 emails and now demanding £109 to settle the matter for using an image in the past.

I have not replied as tbh.

I had read many people saying they are scammers / phishers / or just bullies trying to squeeze money from anyone who responds.  Some people say they are legit company.  Some users have responded to similar emails and actually paid, others say they ignore them.

Their address on the email is a PO Box 61182 address from Anne Sinclair, on companies houses their uk office is not even registered in London, but the PO box is in London.

Has anyone ignored the emails and what happened?

What would be the best advice in this situation?

[DavidVGoliath]

Their address on the email is a PO Box 61182 address from Anne Sinclair, on companies houses their uk office is not even registered in London, but the PO box is in London.

From beta.companieshouse.gov.uk/company/11172740

PicRights UK Limited, 4 Imperial Place, Maxwell Road, Borehamwood, England, WD6 1JN

Borehamwood is within the M25 circular that bounds the Greater London area so, though it doesn't have a London postal code, you're kinda splitting hairs to claim they're "not in London" 

[rafhelp]

People assume way too much when they assume their case will go to any court.

I have said it many times.... Statistically speaking, most small time cases never make it to court. Or if they do, they get settled out because no one wants to "go all the way".

And if people do want to assume that their case is going to court and "all the way" then, start ponying up $400/hour for that assumption. It is an expensive and flawed assumption.

So of the people that get the 14 day threatening email for picright and ignore it, what happened to them after 14 days?

[kingkendall]

Nothing 95% of the time.  It becomes a question of percentages and case specifics. 

[picrightsugh1]

How about if you start receiving calls from the designated lawyer like Higbee's office? That seems like more of an escalation. Is that correct?

[kingkendall]

That's part of the procedure they follow.