Pixsy demand email

[mac14]

Hi, I'm new to the forum and am looking for some help and advice on what to do after I received an email from Pixsy demanding £450 after I mistakenly used an image that was under copyright. Here is the initial email:

Dear :
 
We act on behalf of ********.  We have identified that ******** has been using one of Mr. ******** images without license or permission.  The unauthorized use was detected at this location on your website:

 
Your use of Mr. ********'s image without a license is a violation of his exclusive right to reproduce, distribute, display and prepare derivatives of his copyrighted work. Unlicensed usage takes power away from the creator and significantly devalues their work.
 
Steps required to resolve this matter immediately:
 
1. Review the details of case ******** in the attached Unauthorized Use Report
2. Refer to the attached FAQ if you have any questions about why you received this letter
3. Make payment of your license fee for your use of Mr. ********'s image on or before ********.
 
Payment can be made through our secure licensing page at the following address, and alternate payment options are available to you in the attached PDF:

 
It is our belief that every photographer has a right to be fairly compensated for use of his or her work, and we will take every effort to ensure that our photographers' intellectual property is protected.
 
Note that a failure to resolve this matter of unlicensed use within 21 days will result in legal escalation.
 
We look forward to resolving this matter with you amicably.
 
Sincerely,
PIXSY Resolution Team

I immediately removed the image from the articles and from the server, and so far I've got them down to £360 after exchanging a few emails. 

I have asked Pixsy to provide proof that Mr ******** has instructed them to seek a license fee from me and also provide proof that the image is under copyright and that Mr ******** is the owner as I have been unable to find any information that clearly states this, how to obtain a license or how much the license would be.

I've also contested their claim that I've 'significantly devalued the image' as it's been widely used on hundreds of other websites without attribution or a license, and I personally know the owner of one site that's used the image and they aren't trying to extort money from him. 

I don't mind paying a reasonable fee if I've stupidly used an image that's under copyright, however, I feel the money they are demanding is too much as I earned virtually nothing from the use of the image and don't like the feeling that I'm being unfairly singled out.

I'm from the UK and as far as I can see the company and owner are from the US, so are Pixsy likely to pursue a legal case against me considering I'm from another country?

Pixsy are due to get back to me with a signed declaration from the so-called copyright owner so once they do, I'm not sure where to go from here. Any advice or help would be appreciated.

Thanks

[DavidVGoliath]

I have asked Pixsy to provide proof that Mr. Dartford has instructed them to seek a license fee from me and also provide proof that the image is under copyright and that Mr. Dartford is the owner as I have been unable to find any information that clearly states this, how to obtain a license or how much the license would be.

First off, photographers sign up to the Pixsy service, which then indexes their own works as hosted on sites like Flickr, Tumblr, 500px, Photoshelter and even their own websites.

Secondly, a quick web search shows that Matthew Dartford is a photographer based in the UK and, since you are too, that sets jurisdiction as UK courts and legal system.

There is no registration process for copyrights in the UK, and every work automatically enjoys copyright protection at the point of creation.. and the duration of copyright is for the lifetime of the author + 70 years after the year of their death.

I've also contested their claim that I've 'significantly devalued the image' as it's been widely used on hundreds of other websites without attribution or a license

Pixsy isn't accusing you of devaluing the image alone - they said: "Unlicensed usage takes power away from the creator and significantly devalues their work". Rampant, widespread unlicensed uses can and do detract from the value of images.

I personally know the owner of one site that's used the image and they aren't trying to extort money from him.

That might just mean that this friend of yours, who used the same image, has not had their use of the image discovered yet - or that they simply haven't contacted him about it at this point in time. You should be aware that there is no statute of limitations (time limit) under UK law to bring about a copyright infringement claim.

I don't mind paying a reasonable fee if I've stupidly used an image that's under copyright, however, I feel the money they are demanding is too much as I earned virtually nothing from the use of the image and don't like the feeling that I'm being unfairly singled out.

You profited to the tune of not paying for something that you otherwise would have, regardless of any income you derived (or didn't) from the specific use of the image. Consider: a car rental firm doesn't care whether the van you hired sat in unused in your driveway all weekend long. The fee due is the fee due, regardless of the use you made of it.

I'm from the UK and as far as I can see the company and owner are from the US, so are Pixsy likely to pursue a legal case against me considering I'm from another country?

Pixsy is a tech firm, but they partner with lawyers in several countries, and the UK is one of them. Thus it is quite possible that Mr. Dartford could instruct them to initiate proceedings on his behalf, at which point additional heads of damage could be claimed under law

Pixsy are due to get back to me with a signed declaration from the so-called copyright owner so once they do, I'm not sure where to go from here. Any advice or help would be appreciated.

You've already negotiated a lower amount than that which they've asked for, and that might be as good as it gets for you.

[kingkendall]

@mac14

Keep your powder dry and don't be so quick to think you have to pay up.  They're trying to intomadate you into paying. 

The extortion scam thrives because unscrupulous characters taking advantage of antiquated copyright laws to make a quick buck.  Then they hide behind the law and claim it’s the law.  Nobody is looking to hurt creators of content.  They just want a nice image to put on their site.  They’re not thieves.  But, ignorance is a money maker for some people

[DavidVGoliath]

The extortion scam thrives because unscrupulous characters taking advantage of antiquated copyright laws to make a quick buck.

Please, explain to me how UK copyright law (the jurisdiction in question), which was last revised in 1988, along with associated regulations which were last revised in 2003, are antiquated in any way?

And also, do tell why the creator of a work is unscrupulous if they discover someone has used it without paying, and then ask to be compensated retroactively? There is no other realm of property right (and yes, copyright is a property right) that a rational person would expect to make use of another's property - without asking permission in advance - and not be liable in some form when the use has been discovered.

Then they hide behind the law and claim it’s the law.

Maybe because it is the f'n law? If you feel the copyright laws wherever you live are unjust or inequitable, then lobby to change them... but you are not exempted from liabilities just because you think someone is being harsh in applying laws, as written, to protect interest in their property.

If I injure you personally, whether maliciously or accidentally, you may have redress through criminal or civil process. If I make use of your property without your consent or damage it, then you can again you can avail yourself of whichever legal options are open you based on my actions. A creator citing copyright law to recoup lost revenues is no different.

Nobody is looking to hurt creators of content.  They just want a nice image to put on their site.

There are a myriad of options available to people who want "nice images" for their sites. Perhaps the simplest is to create them themselves or, if they lack the time or skills to do this, to work directly with someone who can, to your mutual benefit.

They’re not thieves.  But, ignorance is a money maker for some people

I'd counter that ignorance - both of the unwitting and the wilful kind - does hurt creators, regardless of intent. As far as photographs go, it is perfectly reasonable for the copyright (property) owner to expect to be paid when they find out someone has used their work - especially if the creator is in the business of licensing their pictures.

[Matthew Chan]

DavidvGoliath,

I must say you are an interesting ELI contributor. You are nearly the lone wolf here (although Robert (Buddhapi is a semi-pro photographer) but honestly, this is not a good place for your arguments. It is a bit hard-core for most of us.  I am sure you know ELI is about "defense" and we discuss legal tactics and strategies.

And what KingKendall says is right in many ways. He (like most of us) are mostly in the "defense" side and that is where most of the discussions slant.  We are not on the "offense" / photographer side because there are TONS of photography forums where your views are favored and discussed. ELI has a lot of rebel types.  :-) KingKendall telling someone to not be so quick to pay up or buckle to intimidation is a perfectly legitimate response. I agree with some of his sentiments if not his wording.

And there are people who do take advantage of people's legal ignorance. It is also true many people are not intentionally trying to hurt photographers either.

Certainly, you are free to contribute as you have been but ELI will never become a photographer's forum, plain and simple. And we don't pretend to be.  We have differences of opinions and perspectives.

[DavidVGoliath]

I must say you are an interesting ELI contributor. You are nearly the lone wolf here (although Robert (Buddhapi is a semi-pro photographer) but honestly, this is not a good place for your arguments. It is a bit hard-core for most of us.  I am sure you know ELI is about "defense" and we discuss legal tactics and strategies.

That much has been apparent from long before I created a user account here; on the point of ELI not being a good place for my arguments - I would hope you would welcome the perspective of a creator, lest you devolve into an echo chamber. You will note that, most recently, I wholeheartedly agreed with your assessment that NYPhotographic is/was operating what appears to be a honeypot scam, and I have also weighed in on other instances where I believe the law to favor the defendant in an infringement action.

And what KingKendall says is right in many ways. He (like most of us) are mostly in the "defense" side and that is where most of the discussions slant.  We are not on the "offense" / photographer side because there are TONS of photography forums where your views are favored and discussed. ELI has a lot of rebel types.  :-) KingKendall telling someone to not be so quick to pay up or buckle to intimidation is a perfectly legitimate response. I agree with some of his sentiments if not his wording.

You may agree with the heart of his opinions, but I disagreed with the specifics of his language and offered up a counterpoint, even though it may be viewed as an unpopular one by some people.

And there are people who do take advantage of people's legal ignorance. It is also true many people are not intentionally trying to hurt photographers either.

I broadly agree (see NYPhotographic) and I also know that the complexity of copyright law, coupled with gross misinformation on the web that has persisted since the days of bulletin boards and the likes of CompuServe/AOL, has resulted in a minefield for both creators and users of content. I am well aware that a few unscrupulous entities habitually act in manners that make copyright claims a ball-ache for everyone else, whether claimants or defendants but, above all else, I believe that copyright laws (even imperfect ones) benefit everyone.

Certainly, you are free to contribute as you have been but ELI will never become a photographer's forum, plain and simple. And we don't pretend to be.  We have differences of opinions and perspectives.

I don't expect ELI to become anything other that what it always has been - a place to discuss the nuances of copyright claims. I'll contribute to posts where I feel I have either something relevant to add by way of knowledge or experience, and also offer a reasonable counterpoint to anything I believe to be a flawed argument or opinion.

[clist]

I have a belief about the web [world]. 

I believe that whatever your opinion is (Good or bad), you will find others who support it...

Some people like to spend their time searching for affirmation.

I prefer to search for arguments that challenge my beliefs.

To each his own ~ i guess 

That being said, its nice to see that this place isn't an echo chamber. 

[kingkendall]

I don't think Annie Leibovitz spends her time doing reverse searches of her work so she can send 75 yr old grandmothers demand letters for using one of her images on their knitting sites.  Granny didn't know any better.  But, just the same Annie might send Granny a note, "Do you mind , Grand Ma?  That's my photo, please take it down?"  "Oh I'm sorry", Granny says, "I didn’t know." 

But instead Granny gets a demand letter from Attorney Screw You, Pay Me representing Joe Palucka photographer asking for $7,000 or he'll sue.  What no nice note asking to take the pic down?  No way.  Joe Palucka makes in a month what Annie  Leibovitz make in an hour.  So pay up, Granny, or else!   

[DavidVGoliath]

I don't think Annie Leibovitz spends her time doing reverse searches of her work so she can send 75 yr old grandmothers demand letters for using one of her images on their knitting sites.  Granny didn't know any better.  But, just the same Annie might send Granny a note, "Do you mind , Grand Ma?  That's my photo, please take it down?"  "Oh I'm sorry", Granny says, "I didn’t know."

No, Leibovitz probably doesn't do this because I'll lay good money that the majority of her clients engage her on a work-for-hire basis via her agent, and thus she doesn't own the rights to the images she shoots. See http://aphotoeditor.com/2013/02/12/pricing-negotiating-tv-network-work-made-for-hire for an example of how this works.

In my experience, clients at this level do not put resources into chasing infringements for various reasons - mostly because the resulting images have a one-time purpose that benefits them.

The most recent one I can think of is Leibovitz shooting the cast of "Star Wars: The Last Jedi" for Vanity Fair magazine. They teased some of the images online (see http://www.vanityfair.com/hollywood/photos/2017/05/star-wars-the-last-jedi-portraits-annie-leibovitz) which were picked up by hundreds of websites and shared... all of which referenced the fact that VF was publishing four variations of the magazine with different cover shots from Leibovitz's shoot.

The end result is that Vanity Fair gets massive exposure, and hardcore movie/SF fans around the world will likely buy all four cover variations as memorabilia. It's a massive publicity win for VF and, whatever Leibovitz's fee would have been (I'd lay money it was well into five or even six figures), it will have been worth it.

But instead Granny gets a demand letter from Attorney Screw You, Pay Me representing Joe Palucka photographer asking for $7,000 or he'll sue.  What no nice note asking to take the pic down?  No way.  Joe Palucka makes in a month what Annie  Leibovitz make in an hour.  So pay up, Granny, or else!

Joe Palucka, not having an agent or the level of clients Liebovitz does, knows that his income depends on being able to license their images and also that having a registered copyright protects their value. Perhaps Joe is so busy hustling for work that they simply turn over every infringement discovered to their attorney, not having the time or inclination to send a "Please stop, thanks" email for every use they discover. If you're paying for counsel to act on behalf, you're trusting them to perform relevant diligence and act professionally.

If you disagree with how an attorney communicates, you take it up with the related bar association or relevant regulatory body, who will investigate whether said attorney is acting outwith codes of conduct and/or the law. If you think copyright law is unjust or inequitable in your country, work to change it.

Here's a thought for you to consider: if you think that issuing settlement letters is such a predatory "scam" that only serves to make a "quick buck" for property owners and their attorneys - how would you feel if they omitted this step of the process and went straight to filing a lawsuit without any prior warning?

If you see someone taking your property, do you confront them personally with a "please stop", or do you call the police? Maybe you're allowed to own a personal firearm wherever you live, and thus have that to call upon as an enforcement of your words. Do you simply point it at the thief, fire a warning shot, or unload on them?

I suspect most people would say "Well, it depends on the situation and circumstances", arguing that there is no one-size-fits-all response that would be correct for every instance.

The same goes for resolving infringements.

[kingkendall]

No, Leibovitz probably doesn't do this because I'll lay good money that the majority of her clients engage her on a work-for-hire 

In my experience, clients at this level do not put resources into chasing infringements for various reasons - mostly because the resulting images have a one-time purpose that benefits them.

That's a piece of insight others may benefit from on this forum. 

 

[Matthew Chan]

My comments inline...

If you disagree with how an attorney communicates, you take it up with the related bar association or relevant regulatory body, who will investigate whether said attorney is acting outwith codes of conduct and/or the law.  If you think copyright law is unjust or inequitable in your country, work to change it.

So, this is why I stay involved and instill a rebel "attitude" with the community. What you suggest is a conventional approach to solving matters. Here on ELI, if a lawyer does something he isn't supposed to do, he might get rewarded with the Streisand Effect or poor remarks/comments on lawyer rating websites.  Or we contact other websites and let them help expand the Streisand effect further. Many copyright collection lawyers have gotten out of the business after being called out for engaging in bad behavior.  No one had to file a state bar complaint over the matter. And if people disagree with the copyright law, people have the right to go dark and not pay at all. It is then up to the accuser to pursue it.

Here's a thought for you to consider: if you think that issuing settlement letters is such a predatory "scam" that only serves to make a "quick buck" for property owners and their attorneys - how would you feel if they omitted this step of the process and went straight to filing a lawsuit without any prior warning?

Masterfile tried this back in 2012. And while I have no direct evidence, I have a strong suspicion many of those lawsuits resulted in uncollectible judgments. It made the lawyers richer and Masterfile poorer. Masterfile didn't just stop out of the goodness of their heart.  They stopped probably because it didn't work.  They generated lots of negative publicity, legal fees for themselves, and drove their victims underground into hiding. The RIAA also did this years ago trying to sue a bunch of ordinary people on music piracy.  The music industry ultimately got brutalized and the negativity dominated the news and tarnished everyone including the artists. The RIAA ultimately realized they were creating more harm than good and essentially creating enemies with their audience and customer base.

If you see someone taking your property, do you confront them personally with a "please stop", or do you call the police? Maybe you're allowed to own a personal firearm wherever you live, and thus have that to call upon as an enforcement of your words. Do you simply point it at the thief, fire a warning shot, or unload on them?

Piracy and infringements while potentially harmful economically will never compare to physical danger so that is a bad analogy.  It is a civil matter. And honestly, MOST people will never equate small infringements with criminal behavior.

I suspect most people would say "Well, it depends on the situation and circumstances", arguing that there is no one-size-fits-all response that would be correct for every instance.
The same goes for resolving infringements.

This, I do agree!

[Jerry Witt (mcfilms)]

I just want to say that I, for one, enjoy DavidVGoliath's counter perspective. I don't always see eye-to-eye with him and some of his positions are downright infuriating. But it IS useful seeing things from a photographer's perspective.

[mac14]

Thanks for your replies. The case is still on-going. I demanded Pixsy provide me with a signed declaration from the image owner making clear he has instructed them to seek damages - which they have now done. But they refuse to explain how I was meant to obtain a license when there is no webpage available to do so or proof how much a license would have costed.

My advertising agency has advised me to ignore their emails as they believe this is nothing more than harassment and extortion. After a couple of emails chasing me, Pixsy have now threatened that if I don't respond and pay the £360 they will take legal action against me.

I'm not sure what my next move should be so any advice would be appreciated.  Do I continue to ignore them and call their bluff over the threat of legal action? Shall I try contacting the image owner to plead my case? Or do I just cave and pay the money?

I hate the feeling that I'm being victimized here as this image has been used extensively by other websites without license or attribution and I know two web owners who've used this image several times and they aren't being harassed by Pisxy for money. But equally, I obviously don't want them to take any legal action.

Any advice on my next course of action would be greatly appreciated...

Thanks

[kingkendall]

Listen to your Ad Agency and ignore them.  Go live you life.  They want you to bounce around in fear.  But, life is too short.  Go live it. 

[Matthew Chan]

When I first started ELI, I was much more stronger in telling people to fight these letters hard. Over the years, I have soften my stance.

You know why?  Not many people have my sense of conviction, willingness to not only defend but go on the attack, take calculated risks, and being able to muddle through uncertainty.

Most people are like you.  They are conflicted but fearful. I think ELI does a good job of being open and frank about the pros and cons. I think we have a good pulse on how things work and the likely outcomes.

Here is the kicker though.  Most people want "certainty" and "guarantees". They are also brainwashed or legally ignorant in legal matters. And even when provided with "facts", it is insufficient because people want a "1-2-3 step" guaranteed fix.

The "guarantee" is to go try to settle. Otherwise, you are going to hear conflicting opinions of what you should or should not do.

The whole lawsuit threat is constantly talked about. People know so little, they act like it is life-threatening. It isn't.  It is an inconvenience. Oftentimes, it is a sterile threat.

I always tell people if they are going to lose sleep and their stomachs are going to be knotted up over it, go negotiate and settle it. But some people will have to live with the fact they are ultimately pushovers and easily intimidated in life.

In my view, this is an opportunity to self-reflect and see what part of yourself comes out.  For many people, their fears often triumph. Sometimes, the fears are well-founded, other times it is imagined.

It's interesting the way you ask your question about "caving" or "paying"? It really isn't a popularity contest.  Nor is it a black or white decision.  Have you considered using aggressive negotiating tactics to wittle down the settlement to a lower number?  Yes, it does require work and conviction to do that. Do you have it in you to do what it takes?

My advertising agency has advised me to ignore their emails as they believe this is nothing more than harassment and extortion. After a couple of emails chasing me, Pixsy have now threatened that if I don't respond and pay the £360 they will take legal action against me.

I'm not sure what my next move should be so any advice would be appreciated.  Do I continue to ignore them and call their bluff over the threat of legal action? Shall I try contacting the image owner to plead my case? Or do I just cave and pay the money?

Any advice on my next course of action would be greatly appreciated...