Copyright Infringement - PicRights AFP

[TinKan]

Firstly, thank you for the advice already on this forum - I have found it invaluable.

I have been chased by PicRights, acting on behalf of AFP, for using an AFP image on the page of my business/personal website (it is a mix - I am a sole trader). They have demanded £850 for this. I have removed the image from the site, replacing it with a free, and otherwise good image.

I clearly made a mistake selecting this image (it is the only image I have on my website that isn't mine), so I am willing to settle for the damages due. However, their demand of £850 I believe is preposterous.

I have made a counter offer, having looked up Getty images which has the image in question, where the license is for "Digital Media - Commercial Blog", and found the fee of £125. I added £25 as a goodwill gesture to offer £150 to resolve the matter.

Now PicRights have come back very quickly saying no to my offer of £150, they want £850, based on the Getty Images licence fee for "Digital Media - Corporate and Promotional".

Perhaps this was ill advised, but I thereafter told them they were being extortionate, and I rescinded my original offer of £150 which included the goodwill gesture, and reduced my offer to £125 to settle the matter.

I understand from reading this forum that I should stick with the amount based on the fee the copyright holder would have got form the licence. However, I am uncertain as to whether my use of the picture constitutes a "Commerical Blog" (£125), or "Corporate and Promotional" (£850). The page concerned an ongoing project, which does not make any money (maybe hope to one day). The page sits alongside a project which is a community based project and again, not money making. I have a separate section on my website that is a portfolio of my core (paid) work.

The details of the license terms from the Getty images website are as follows:

Commercial Blog - Use in an editorial-style article on a corporate website or blog. Coverage includes the right to archive the image in context of the original scope of use for up to 5 years.

Corporate and promotional site - Commercial or promotional use on a website, including as a design element on a corporate website or in branding/profile designs on Social Media. (Does not include paid advertising; for example, ""Web – advertisement."")

In my view, the use could qualify as either in some respects, but it is certainly in the spirit of "Commercial Blog". In any case, there is no way I would have paid £125, let alone £850 demanded if I knew that I was infringing copyright (I was operating under the assumption of 'fair use', which I only understand now to be mistaken).

With the licences being what they are, it would make me feel more comfortable if I found an additional defence that would reject £850 as a reasonable licence fee.

Thank you for any help!

[AndyJ]

Hi Tin Kan and welcome to the forum,

As you can appreciate I am not in a better position to evaluate your site than you are. And in any case my opinion on the nature of the site or the use of image would not be relevant.

I am suspicious about this figure of £850. If the Getty rate for the corporate and promotional use licence really is £850, it is odd that Pic Rights are only demanding that figure, since it would leave them (PicRights) with no profit. I think you should first check what is the actual rate that Getty quote for the corporate/promotional use. Obviously, in the worst case this may end up being the figure for your counter-offer. Indeed you may find it is close to the figure of £150

But to return to the issue of how to classify your website, I think we can assume that PicRights aren't really interested in hearing your couter-arguments about how and why the image was used. So to that extent, ultimately it would have to be left to a court to decide which was the appropriate licence. That is not going to happen for the simple reason that Getty's legal costs in arguing their case would outweigh the figure of £850 several times over, and legal costs are not normally recoverable from the losing party in the IPEC Small Claims Track. And as I say I don't think that £850 is the true figure for the more expensive licence, so the idea of going to court for a lower figure is even less attractive.

It all comes down to your ability to tough it out with PicRights. If you stick to you current offer it forces them to make the decision whether to escalate it - obviously they will threaten this, but that doesn't necessarily mean that they will, for the same reason, it occurs new costs.

[TinKan]

Thank you Andy, that is reassuring to hear.

I get that it is unlikely that PicRights would actually take me to court for the reasons you mentioned, and as I read elsewhere on this forum. My desire is to have "something in backup" and have a maintainable position if it ever came to court - think of it as knowing the strength of my hand so I can't be bluffed/intimidated into folding.

The £850 figure is indeed the sum that Getty images licences for "corporate and promotional" use of the image. I have checked this. Perhaps AFP and PicRights have an agreement for splitting recovered licence fees, even if the copyright holder gains less than what the license is worth?

From the experience of being on the receiving end of their threats, when PicRights demanded a sum based on a particular license fee (even if tenuous), lends some weight to their "legal" position from a layman's perspective. The first thing I did was look on this forum and learned that the legally upholdable damages due is the market value of the license (in my case, £125, though PicRights have some dodgy grounds to say £850). Who can say that PicRights don't visit this forum to see what their victims are looking at? Perhaps they are simply adjusting their strategy (the sum demanded) to respond to a better informed public?

[AndyJ]

Hi Tin Kan,

While it would be good to think that PicRights were amending their approach, I can't see how this would make their business profitable. The only way it would work is if the copyright owner and their legitimate agent (in this caseAFP) take a hit, or that PicRights operate on an entirely different basis by being paid a retainer or success fee by their client (AFP). This cost would then be absorbed by the client as a normal business expense, rather like paying a window cleaner to keep their premises looking smart.

As for your other point, I would not be at all surprised to find that PicRights periodically monitor forums like this. We always advise members to be cautious about how much detail they reveal about their individual cases.