PA Media/time limit for copyright infringement claims

[Query99]

Hi there, I'm one of the many contacted by PA Media/Fair Licensing about the use of an Alamy picture.

My inadvertent use of the image was in 2013 but I know there is strict liability involved and it is irrelevant whether I was aware or not.

But my question is whether a copyright claim could even be brought against me because the usage is outside the six-year limitation period which I believe exists for copyright infringement claims? (I was first contacted late 2024.)

Thanks for any advice on this question!

[AndyJ]

Hi Query and welcome to the forum,
I have amended this posting to reflect the correction submitted by IP Protection below. Apologies to Query for misleading him/her.
You are right that the limitation period is six years. [text deleted]

It may not be relevant here but a claimant may be able, in certain cases, to ask the court to post date the start of the 6 year period if they can show the court that they could not reasonably have discovered the infringment until a more recent date. However that would not apply if all use of the image had ceased more than six years ago and while the image had been on a website, the public had unrestricted access to it, for instance, it wasn't behind a paywall. Generally speaking if a bot could have found it, then that would be sufficient to defeat an application for an extension to the 6 year period.

[Query99]

Thanks Andy - the image has only just come off my site.

Looks like I will have to try and settle for a lesser fee than the have asked for.

The last email from Fairlicensing said:

"...the fee requested is reflective of PA’s licensing structure taking into account the price we pay to use the services of a web-crawling agency and an admin fee which covers our cost of creating and managing the case.

However, it is never our intention to financially burden any small company / not-for-profit organisation / small business owner and we understand how challenging these times are. However, we have a duty to secure fair payment when work has been used unlicensed.

We can possibly look into offing a discount for you, however to do this we’d first ask that you send across proof of unaffordability (for example your latest Profit and Loss statement, or a 30 day bank statement with the key data redacted)."

I am reluctant to send any financial information to them so I will attempt to argue that their requested fee is not "fair payment" and would not be considered to be so by a court and see where that gets me.

[AndyJ]

Hi Query,

While it is nice that they take into account someone's ability to pay, that redfflects you away from the fact that if this went to court, the only damages they would be eligible for is the loss of the licence fee. Civil justice only seeks to put a claimant into the position he would have been in if a licence had been obtained in the first place. Incidental expenses such as the cost of a web crawling agency would not be admissible in the Intellectual Property Enterprise Court small claims court. And if it went to court the company would probably be represented by a lawyer whose fees would also not be admissible, so in effect this would cost them several times the amount of damages they might win.

[Query99]

Thanks so much Andy. And is a civil course of action the only remedy open to them? Or could they seek a criminal prosecution?

[AndyJ]

Yes civil only. For a criminal action it would need to have been something on an industrial scale like bootleg DVDs where there was a serious financial profit motive. And only the Police or Trading Standards could bring a prosecution, so you don't need to worry about that.

[IPProtection]

Hi Query and welcome to the forum,

You are right that the limitation period is six years, but that period only begins once the act of infringement has ceased. So if you put the image on your site in 2013 and deleted it before the end of 2018 then the limitation period protects you from being sued now. However if the image was up until last year when you were first contacted about it, then unfortunately the limitation period won't have kicked in.

Andy - I respectfully disagree with you on this point. The limitation period for Torts starts at the cause of action, not the cessation of it.
Therefore, the limitation period begins at the moment the work was last modified or published on the site.
If it hadn't been touched since 2013 (ie: not renamed and the 'last modified' date on the server remained as 2013), then that is the moment of the cause of action. Many people would like to argue, and believe that if an image remains visible online, each day begins a new cause of action - but that's not the case. The 'infringer' hasn't created a new cause of action by leaving it in place. If they edited it though, in any way, then that would reset the clock.
There is case law on this - Pirelli General Cable Works Ltd v Oscar Faber & Ptns [1983].. The countdown starts when the damage was first caused, not when it ceased.

[AndyJ]

Hi IP Protection and welcome to the forum,

You are correct on the point about when the accrual occurs and I will amend my original posting to reflect this.

I hope you will continue to contribute to the forum, and perhaps provide the balancing view of companies such as yours which act to protect the rights of copyright owners. I note that one on the company's directors is the photographer Jason Sheldon. Those more familar with copyright infringement claims will perhap be aware of Mr Sheldon's past success in the area (see for instance this win in 2013). As something of a campaigner on behalf of copyright owners, such input here would be invaluable in reminding those facing claims that (usually) behind such claims is an individual trying to make a living.

[IPProtection]

Hi Andy - I'll certainly try and contribute where I can, yes.

While IP Protection is primarily concerned with assisting rights owners enforcing their copyright and recovering fees due, we also make sure infringers are treated fairly - and lawfully - so occasionally we have also assisted people accused of infringement and facing unfairly disproportionate claims.

@Query99 - As long as the image hadn't been reposted, edited, renamed etc - the rights owners cannot issue proceedings against you. They would be statute barred. That doesn't stop them sending you payment requests, and the fair thing to do would be to make an offer to pay the license fee with a gesture of goodwill payment on top to cover their admin - I'd usually suggest at least 100% of the Alamy license fee - which a court might agree is a fair offer, if the infringement wasn't particularly flagrant - but no matter how persistent or 'threatening' they are, they can't take you to court. Their letters will be very carefully worded as payment requests, not demands. They're inviting you to pay.. if they were to threaten court proceedings if you don't pay, they would be skating on thin ice.

Our experience with this particular rights owner with someone who were themselves in a similar position to you found the "license" fee demanded did not correspond with the fee the exact same image was available for via Alamy (£35+vat for the same use) - and Alamy is owned by PA.

Aside from the fact that the claim would potentially be statute barred under §2 of the Limitation Act (1980), their claim would be limited to the amount of their loss - plus possible additional damages where prescribed by the CDPA. This would be £35+vat plus reasonable expenses incurred as a result of the infringement, and potential 'Additional Damages' uplifts for flagrancy, infringement of moral rights, removal of rights management info etc for example. PA wouldn't find a court very sympathetic to claiming hundreds of pounds in lost license fees when the license is advertised for just £35+vat on one of it's own websites.

I would also argue that the cost of their subscription to the service to find infringing images is a normal cost of doing business, and not as a result of your alleged infringement. They would have incurred that cost of the image being discovered - even if you held a valid license. If someone were to break into their premises - they wouldn't be expected to recover the costs of their CCTV or intruder alarms.

The point of going to court is to put the rights owner in the position they would have been, had the infringement not occurred - which is the payment of the license fee and any expense incurred as a direct result of the infringing action (plus any additional damages they'd be entitled to).

The cost of their subscriptions would have been incurred anyway and are not a result of the cause of action.

Jason

[Disgruntled123]

AndyJ, IPProtection.

You're good people. Thank you for the advice and support you offer. Getting massive claims for genuine errors is terrifying and your information is invaluable.

[Query99]

Hi Jason

Thanks for clarifying the timing issue.

I published the image in 2013 on a blog post. The post was updated with some additional copy in 2018, but the image was unchanged. I migrated my blog from a free platform to my own website in late 2020. The post (including the image) remained the same but the URL changed slightly. Would that count as a separate posting in 2020? Or would the 2013 date still stand?

@Query99 - As long as the image hadn't been reposted, edited, renamed etc - the rights owners cannot issue proceedings against you. They would be statute barred. That doesn't stop them sending you payment requests, and the fair thing to do would be to make an offer to pay the license fee with a gesture of goodwill payment on top to cover their admin - I'd usually suggest at least 100% of the Alamy license fee - which a court might agree is a fair offer, if the infringement wasn't particularly flagrant - but no matter how persistent or 'threatening' they are, they can't take you to court. Their letters will be very carefully worded as payment requests, not demands. They're inviting you to pay.. if they were to threaten court proceedings if you don't pay, they would be skating on thin ice.

Jason

I have made a payment offer and will post a separate reply about that.

[Query99]

Hi again Jason

In terms of the payment/offer question, I offered the amount as show on the Alamy website and rounded it up - not quite to double the original licence fee but pretty close (and I would be happy to go to double to resolve this).

The reply I received was:

The price for this infringement has been set due to the missed licence, along with the fee we pay the copyright protection agency to crawl the web looking for uses of images that may not have a licence, and our administration costs.

The market value of the image copyright infringement refers to the economic loss caused by the unauthorized use or reproduction of copyrighted images. When you have used a copyrighted image without permission, it can harm the original creator numerous ways such as:

1. Loss of Licensing Revenue: The creator / copyright holder misses out on licensing fees they would have earned if the infringer had obtained the image legally.


2. Market Devaluation: Unauthorized use can oversaturate the market with the image, reducing its uniqueness and value.


3. Damage to Reputation: If the image is used in an inappropriate or unauthorized context by someone copying the photo from your website, it could harm the creator’s reputation or the perceived value of their work.

The licence fee we are seeking is for the past usage of the image on the website mentioned and consists of a PA image that should have a Editorial Websites/ Blogs license priced at £634, which is for an image being used for 3 years or In Perpetuity. There is also a 25% case admin fee included to cover the cost of creating the dossier – internet scan, validating contact details; the costs of recovery and communication, which is set at £158.50.

the fair thing to do would be to make an offer to pay the license fee with a gesture of goodwill payment on top to cover their admin - I'd usually suggest at least 100% of the Alamy license fee - which a court might agree is a fair offer, if the infringement wasn't particularly flagrant


Our experience with this particular rights owner with someone who were themselves in a similar position to you found the "license" fee demanded did not correspond with the fee the exact same image was available for via Alamy (£35+vat for the same use) - and Alamy is owned by PA.


Aside from the fact that the claim would potentially be statute barred under §2 of the Limitation Act (1980), their claim would be limited to the amount of their loss - plus possible additional damages where prescribed by the CDPA. This would be £35+vat plus reasonable expenses incurred as a result of the infringement, and potential 'Additional Damages' uplifts for flagrancy, infringement of moral rights, removal of rights management info etc for example. PA wouldn't find a court very sympathetic to claiming hundreds of pounds in lost license fees when the license is advertised for just £35+vat on one of it's own websites.

[IPProtection]

I published the image in 2013 on a blog post. The post was updated with some additional copy in 2018, but the image was unchanged. I migrated my blog from a free platform to my own website in late 2020. The post (including the image) remained the same but the URL changed slightly. Would that count as a separate posting in 2020? Or would the 2013 date still stand?

I have made a payment offer and will post a separate reply about that.

I'll reply to your other post separately.. but unfortunately, I think you've reset the limitation timer several times - by updating the copy of the post in 2018, and definitely by migrating to a new server in late 2020. They would only have to look at the "Last Modified" date of the image to see that the date is now within the six year limitation period, and that can be done by simply opening the image URL in a browser window and typing

Code: Select all

javascript:alert(document.lastModified)

into the address bar - then, providing it's the actual image URL and not being served by a Content Management System or Content Delivery Network, you'll get a pop-up alert showing the date and time the image was last modified on your webserver.. If that's within 6 years, then they'd have a potential claim.

J.

[IPProtection]

It looks like they use a standard template to frighten people into paying and there are several things wrong with it:

1. The fee they pay the copyright agency to crawl the web is not a result of the cause of action - it's part of their daily cost of doing business, like their utility bills. They are using the crawling service which is going to flag up ANY image it matches, even if you did have a license so they can't claim for the cost of that as their subscription wasn't a direct (or indirect) result of your alleged infringement.

2. Admin costs - yes, they're entitled to seek to recover these, but they shouldn't be disproportionate.

3. I think they're trying to stretch the definition of 'economic loss' but it might just be the way they've formatted the paragraph..

3.1 Loss of licensing revenue - yes - this is the "actual damages" element of the claim.. the license fee that was due for the use.

3.2 Market devaluation: The market can be oversaturated even with authorised use of the image.. but while this point is still true, widespread unauthorised use of the image can potentially devalue it - your single alleged infringement is no more responsible for every other infringement as any other licensed copy would be - since even licensed websites have their content taken and used unlawfully.

3.3 If someone else used the image from your website without your permission (irony not intended), instruction or encouragement in a context which harmed the creator's reputation or value of the work, then that would be a claim for them to make against that person, not you.

4. The 'Licence Fee' - This figure of £634 is made up. PA Media do not charge £634 for editorial use for 3 years, at least not to their normal clients. It's certainly not reflective of the royalties I used to get when they syndicated my images.
Not only is that figure more than they apparently charge for the front cover a book (which is typically more expensive than editorial blog use)

Getty Images for example - charge £570 for a full front cover image on a retail book, upto 5000 copies, worldwide distribution for upto 6 years and for a COMMERCIAL blog, editorial use, they only charge £151 for upto 3 years (so even if you renewed the license for another 3 years, it would be just £302) - which shows the difference between commercial and editorial rates.
They are also unlikely to succeed in a claim of £634 for the license fee when they offer the same image via their Alamy site, for a comparable license to your alleged use, for as little as £39 - This would be the true value of their loss.. If someone were offered the same product at either £39 or £634, any normal person would happily pay £39 and as the image is available for that price, the £634 is unrealistic. It is also not publicly displayed alongside the image - it is on a poorly composed XLS spreadsheet 'rate card' which was only created in February 2023. If it were to proceed to court, I would ask as part of initial disclosure for the licensing history of the image and the rates/basis it has been licensed for. I doubt there would be any licenses issued for £634 unless they were part of settlements.

They also state a 25% case admin fee - £158.50, which based on the 'license fee' value of £634.. Since the image is available to license at £39, their 25% admin fee for that would be £9.75.. So offering £39 for the perpetual license the image is available for, plus £39 as a goodwill gesture for their admin is a more than generous offer, being 100% to cover their 'case admin fee' based on their own calculations and publicly displayed figures.

I think they would be unwise to take you to court for the sum they're claiming when you can show the claim is vastly inflated and disproportionate, and that you have made an offer which is more than fair, based on the advertised price of the image, but that's not to say they wouldn't.

J.

Hi again Jason

In terms of the payment/offer question, I offered the amount as show on the Alamy website and rounded it up - not quite to double the original licence fee but pretty close (and I would be happy to go to double to resolve this).

The reply I received was:

The price for this infringement has been set due to the missed licence, along with the fee we pay the copyright protection agency to crawl the web looking for uses of images that may not have a licence, and our administration costs.

The market value of the image copyright infringement refers to the economic loss caused by the unauthorized use or reproduction of copyrighted images. When you have used a copyrighted image without permission, it can harm the original creator numerous ways such as:

1. Loss of Licensing Revenue: The creator / copyright holder misses out on licensing fees they would have earned if the infringer had obtained the image legally.

2. Market Devaluation: Unauthorized use can oversaturate the market with the image, reducing its uniqueness and value.

3. Damage to Reputation: If the image is used in an inappropriate or unauthorized context by someone copying the photo from your website, it could harm the creator’s reputation or the perceived value of their work.

The licence fee we are seeking is for the past usage of the image on the website mentioned and consists of a PA image that should have a Editorial Websites/ Blogs license priced at £634, which is for an image being used for 3 years or In Perpetuity. There is also a 25% case admin fee included to cover the cost of creating the dossier – internet scan, validating contact details; the costs of recovery and communication, which is set at £158.50.

[AndyJ]

It will come as no surprise to regular visitors to these forums to hear that I don't agree with Jason on some of his points.

Admin costs. It rather depends on whose costs we are talking about. If it is accepted that hiring a company to trawl the internet looking for instances of infringement is a general overhead then surely the company is not entitled to any admin costs from the people they chase. If it is the picture agency's costs which neeed to be reimbursed, what costs have they actually incurred? Fundamentally the agency provides the details of its images and then confirms whether or not a valid licence is held for each appearance of a particular image. This cost will probably be minimal in fact, just requiring the company to access a database. I don't know the figures, but it seems likely that users with legitimate licences will at least equal if not outnumber the infringing users, therefore again I suggest this cost should be absorbed as a business overhead. I certainly would not suggest that any goodwill payment needs to represent 100% of the actual true market value of the licence.

Market Devaluation. This is just window dressing to make their claim sound more impressive. If a licence for an image is being offered at around £35 then the only way a photographer will make any money from it is through a high volume of licences. By definition, a high value image only remains so if it is offered on the basis of an exclusive licence, which means that it won't also be offered to anyone for £35. But more to the point there is nothing within the Copyright Designs and Patents Act or current caselaw which supports the proposition that market devaluation forms a head of claim. That is to confuse copyright with trade mark law and the commonlaw tort of passing off. I'm sure Jason will argue that section 97 (2)(b) provides a basis for a claim, but the words are clear: for claim to stand there must have been a "benefit accruing to the defendant" for additonal damages to become a viable proposition. The nearest copyright law comes to acknowledging some sort of devaluation is in the moral right for an author not to have his/her work treated in a derogatory manner (section 80 ). But this tort does not apply to a notional or actual economic loss, only to a slightly outdated concept of damage to the honour and reputation of the author.