Pixsy demanding I pay a fee for unauthorised use of an image. Urgently need help.

[Les]

Sent you a PM, Steve, with the latest from Pixsy, which is slightly out of character. Just for your interest.

[jewellery]

Hello everybody. yet another pixsy demand for an unauthorized use a photo - with a little difference

I have received a letter from Pixsy regarding an Unauthorized Use of an image which belongs to a person named Mr. T( i have hidden the name) - Case Reference: 002-222996 and pixsy demands £350 for this. The unauthorized use was detected at this location on your website.
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If the alleged copyright infringement did take place, be assured that it was entirely innocent and unwilling. However, until this matter is resolved, and as a good-faith gesture, the potentially infringing image has been removed from the Website, and any other location on our server, including any server backups.

Do I now ask to add to the info I have gathered below at Point 1?

Please provide proof of Pixsy right to manage the Image.
Please provide proof of proper copyright registration and the chain of title for the Image.
( This should also include the exact specifications registered i.e. the item that we showed, now removed) the reason for asking the item, althogh same design has different metal base and type of jewellery used)
Do I ask?
Please provide a clear explanation as to how Pixsy or the alleged owner has determined the valuation of this image as being so far above comparable images.
Please provide sales data for the Image for each size and use. Please detail your costs incurred related to the pursuit of this case.


POINT 1 - Now - how we obtained this imaged:
============================
We are a dropshipping company selling fashion jewellery, using Shopify to store the images. We downloaded the image from a supplier in China ( as 99% of dropshippers do)

seller page: ( can be supplied) with the same image

The seller has 75.1K Followers who has access to this product
So it is able to reach to offer this item to,
- Public ( 71k followers) so in fact Pixsy really must approach the source and not us.
- Trade ( many mentioned below)

As far as I know, ( although some say can be taken with a pinch of salt)
China is a signatory to the Berne Convention ( as stated in the US copyright office.doc https://www.copyright.gov/circs/circ38a.pdf) and other international intellectual property (IP) treaties, so copyright in China automatically arises when an original work is created.
China also acceded to the WIPO-administered Madrid Agreement for the International Registration of Trademarks in June 1989. China is also a signatory to the WIPO-administered Beijing Treaty on Audiovisual Performances, which enhances performers' intellectual property rights.
China is also member in several international organizations related to IP rights: Paris Convention (priority rights) – since 1985; Patent Cooperation Treaty (patents) – since 1994; Madrid Protocol (trade marks) – since 1995.

Therefore it has come to our knowledge that the following major sites are also using the exact image with exact specification and sell it online

AMAZON, GETCRUNCHED, ONBUY.COM, FRUUGO.CO.UK, WICCAVIBES, STEAMPUNKANDRENAISSANCE, DHGATE, WOLFHORDE, MEALGUESJEWELRY, JOOM,

Therefore. we confirm that, all probability, the above onward sellers also use the same Chinese supplier. Nevertheless, Pixsy is trying to punish us for this problem.

NOW LETS EXAMINE WHO IS THIS PERSON AND HIS CONNECTIONS TO THIS IMAGE

The person in question
MR T ( pixsy confirms he is the photographer)
has a presence in ETSY under the name of (COMPANY NAME HIDDEN)
and has this item ( with different specs and sold at a much higher price)
He claims to be the owner of the copyright, which may be so, but apparently his motive is to punish anyone else using this image.
He thinks we are a competitor to him like the companies mentioned above( not sure he has also approached them!) but the product offered by us is nowhere the quality of the item he sells in ETSY. There is no copyright notification on ETSY page, EITHER!

Here is his page in ETSY ( link hidden, can be provided))


Based on our research he is also the owner of the company in US records - as below according to US records

(company name hidden)
Name Mr T
Street address (full address hidden) CO 80207, United States

============================

So I am not sure this becomes conflict of interest as his real motive is to take advantage of people's legal ignorance. It is also true many people are not intentionally trying to hurt photographers either.( one and the same here is the photographer and the company owner selling it)

I hate the feeling that I'm being victimized here as this image has been used extensively by other websites without license or attribution.

I have also checked istock, shutterstock, alamy, getty images and have found there is no existence of this image therefore cannot determine the real value of the image, or indeed, we could have purchased the licence before hand.

There is a such thing as a "de minimus" infringement, The image is not special or noteworthy and they could not sell it for $10. I feel he is using people's legal ignorance to coax me to pay up egregious amount of money over an image that could never sell for $10 as it refers to a product advertised in Etsy. On top of that, It was not done intentionally.

Therefore, I need your advise how to go about answering Pixsy based on the information above.
Awating our reply,
H.Ozturk

[AndyJ]

Hi H.Ozturk and welcome.

Just a couple of points on your earlier remarks. Copyright arises automatically when a work with sufficient creativity is first made and it doesn't require to be registered to be valid. Secondly Pixsy have absolutley no rights in the copyright; they are simply agents of the copyright owner, tasked with finding instances of alleged infringements and sending out their demand letters. You should certainly challenge them to produce credible evidence that the person they represent is the actual copyright owner. And you are also entitled to ask them to justify the fee they have demanded from you. If this person, Mr T, has a copy of the image on his website, compare the size (number of pixels) of the two images and if you are able, check the metadata which is embedded in the images. If this information is different, there is a strong possibility that the two are entirely different images which just happen to look vey similiar.

Based on what you have said about the image being made available on your supplier's website, I think that establishes grounds for saying that, at most, you may be liable for secondary infringement (see section 23 Copyright Designs and Patents Act 1988), but since you had a good faith belief that you were authorised by the wholesaler to use the image, even this liability falls away. That is to say, you did not know and had no reason to believe that the image you used was an infringing copy. If the Chinese supplier is also the manufacturer of the jewellery, then you have an even stronger defence since they are much more likely to be the originator of the image than the person Mr T who is claiming to be the copyright owner. He is most likely to be doing exactly the same as you, in using the company's image to sell his goods.

On the face of it, Pixsy has a very weak case against you, and you should make it clear to them that you know this. Because they will not want to take the matter to court since it is quite likely they will lose, you are in a strong position either to offer them a more realistic fee to settle the matter, or to stand your ground and refuse to deal with them at all, on the basis that there has been no infringement. Much depends on your desire to get the matter settled quickly.

[jewellery]

Thanks for your reply. the photographer ( and the owner of the company) did register the photo among hundreds that he uses.
usa copyright office:
https://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?
SC=Author&SA=Guild%20of%20Metallic%20Content%20LLC&PID=bKSeo8lbIjJG8xYeIShtVk681cLB&BROWSE=1&HC=1&SID=10
Does this make his case stronger?

As the Chinese supplier is the only one providing this item, I am almost sure they are the minufacturers.

In the meantime, another seller - AND IN ETSY - also selling this item well below the MR T s site
https://www.etsy.com/uk/listing/1713550 ... ch_click=1

so even in ETSY otself he has a competitior, which looks like getting their stock from the same manufacturer in China!!!!!!

[jewellery]

Pixsy seems to keep the cases open. I have just received after 7 weeks , having written to them

"* Please provide proof of proper copyright registration and the chain of title for the Image.?

* Please provide a clear explanation as to how Pixsy or the alleged owner has determined the valuation of this image as being so far above comparable images.?

* Please provide sales data for the Image for each size and use. Please detail your costs incurred related to the pursuit of this case.?"

with a response
==============

"Pixsy is a licensing agent for the sale of our photographers’ work online. We are not seeking damages, but a license fee payment for the retroactive use of Mr. Tobias’s work on your website.

Provision of copyright registration information only becomes required once a case is referred for legal escalation, and is used to establish damages for what is then considered a case of copyright infringement.

Please advise if you would prefer this matter to be handled through legal proceedings. If this is the case, also keep in mind that once the copyright infringement case is escalated to a partner law firm, fees incurred will be significantly higher and my offer to license the work at the current rate will no longer be available.

In the meantime, you will receive a declaration of rights document directly through our electronic signature partner, DocuSign, confirming our client's copyright ownership of their work, and certifying that Pixsy, and when necessary, our legal partners, act as their agent to resolve matters of unauthorized use.

Robin Gillham
"

Anybody can help what all these mean?
H Ozturk

[AndyJ]

hi again.

If legal action was to be taken in the USA then yes a registration with the US Copyright Office would be accepted by the court there as presumptive of copyright ownership. Here's what § 410(c) of the US Copyright Act 1976 says:

(c) In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court.

However a UK court would not necessarily accept a US registration as prima facie evidence of ownership. It might be persuasive however.

However since the USCO registration doesn't include an actual image it's hard to tell from the description 'Wolf Ring' alone if this is definitiely the image at the centre of the claim. I note that the image on the Etsy site has an embedded tag which refers to the Etsy seller's company. It also appears from a quick google image search that the same ring is available on numerous other sites including Temu and Amazon, but they do not appear to being using the same image as on the Etsy shop, with its distinctive foreground.

Given this uncertainty about the actual image which is in dispute, I cannot comment further.

[Terrar56]

I'm curious, what do everyone's 'case reference' status' say after you haven't been contacted by pixsy for a while? Do they just keep it open indefinitely?

[stevedavies]

Been several weeks since I got the latest round of threatening language from Pixsy. Today I got:

Legal Escalation Notice:

Followed by the case number and artist's name.

So many escalation notices. Seems that escalation notices have been escalated...over and over. Joke.
The emails always look virtually the same with just a few differences. It's gone from level of escalation to another in their usual intimidating style language from 1st to final to Overdue to Escalation to a few others like that, and now Legal Escalation.

Not this is not the first time they've threatened "legal escalation". That goes back weeks and weeks.

Same process pretty much. All nonsense. One process difference though is that it's not from the usual case manager but from the "Legal Partner Team" who started the email saying "My colleague forwarded me this case file for review."

The latest email inserts this:

Our offer to license NAME's imagery for a fair market fee is available until the end of business on Friday. At this stage, we will expediently advise our client as to the appropriate next steps to take to resolve this matter, which will include our recommendation to immediately initiate legal proceedings in our Legal Resolution Program using a local copyright attorney.

Keep in mind that the full value of NAME's imagery is much higher when we account for copyright infringement. In our Legal Resolution Program, our partner attorney's will seek the highest possible damages for unauthorized commercial reproduction of our client's work.

The same "client" who has been banned from Flickr. And I still wonder what mug of an attorney they can find in the UK to pick up this at all. And at costs that make it worthwhile to them - which it is not nor to any lawyer - and what lawyer will look past so many aspects i.e. how no financial loss occurred. They say "much higher when we account for copyright infringement" which they can't do since that has nothing to do with actual damages off a flickr CC2.0 image. They are not talking to any old mug. I'd hoped they realised that by now. It's just more threats again and I think I will block their emails from here.

How's everyone else's cases going?

[Terrar56]

Just block them, they're full of shit.

[Les]

Nothing for a month in our case. I don’t think I’ve heard the last of it.

[Les]

Interesting update. In our last email to Pixsy rejecting their reduced demand, I made a derisive offer of 1/10 of their demand, never expecting they'd accept it.

They now have. While I'm reluctant to feed them in any way, honour (and probably contract law) suggests I have to pay it. It will be a relief to have them off my back, but I'm sure other people will say I'm a mug for paying anything.

[stevedavies]

Hi Les. If they'd accepted my offer, best I could offer, I'd have paid up probably. For that reason: off my back. 1/10 of the fee demanded is far less than what they refused to accept for me.
I don't think you're a mug if you pay. I've been bothered by their threats and garbage since August. It's been a nasty experience dealing with the constant emails.
their whole business model thrives on and depends on responses to emails demanding money.
But they rejected my offer. If it did go to court and I lost, it would be a seriously big shock considering how they operate and how the law views the so-called infringement.
There is no "honour" in what they do.
I do though get why you want them off your back and in so doing, sigh with relief.
I'm just blocking them until an actual legal team contacts me, so not Pixsy, or when my finances improve and I feel okay with a slightly bigger offer.

[armyofme]

Hi all, just wondering if anyone has updates on their Pixsy shenanigans. My business received an email from them recently with pretty much the same stuff that's been talked about here - a free Flickr photo under CC2.0 and they're demanding WAY more than you've all mentioned - over £1,000. Has anyone made any progress or can give solid advice on how we should respond?

[Les]

Well I paid in the end, but a tenth of what they were asking for. I didn’t think they would actually go to court in the end, but I’d made the offer, and surprisingly they accepted; so I thought it’s there in writing, I can’t really get out of it.

This was after about four or five demands, over four months. They reduced it to half, I refused and said a figure I was sure they’d reject, but they didn’t. I’m glad it’s over, though.

[stevedavies]

Hi all, just wondering if anyone has updates on their Pixsy shenanigans. My business received an email from them recently with pretty much the same stuff that's been talked about here - a free Flickr photo under CC2.0 and they're demanding WAY more than you've all mentioned - over £1,000. Has anyone made any progress or can give solid advice on how we should respond?

Hi. Best to read through all the posts in this thread particularly how Andy advised me throughout since August. What a gent.

I wouldn't be concerned. They won't get £1000 for an image under the CC 2.0 license. The image has cost the artist in your case nothing. Zero. Pixsy want folks to yield and just get intimidated into paying but do read through all the posts as there is so much to digest around how Flickr and CC view the matter, the use of a free CC2.0 image and how Pixsy position themselves in such a threatening way yet have no legal powers whatsoever.

In my case, I blocked them so have no idea if they are trying to contact. If I hear from an actual lawyer - which I doubt as the costs to the artist are not worth the hassle - I'll respond but I'm done responding to Pixsy.

Your first response should ask for a breakdown of how they arrived at such a high figure for a free image under CC2.0.
I can tell you though they won't answer that and just try to boggle you with a load of threatening legal buff which is meaningless.