Copyright Aid

Hello

After some advice on behalf of my partner.

A few weeks ago, my partner received an email from PicRights for using 2 x images that apparently required a licence on the clearly labelled blog page of their business website. The business website does not sell anything only highlights their services. The images were used purely to accompany editorial thought/opinion pieces regarding the industry my partner works in. The 2 x images from 2016 were swiftly removed from the website, however an email reply from PicRights stated that:

After careful review, Reuters is willing to settle the matter for £ 740. Please note that we are not adding any fees or attempting to recuperate any of the costs Reuters has incurred in relation to this matter.

My partner paid the money out of sheer panic.

Since then we and the 3rd a party that manages and maintains the blog page have embarked on an extensive double checking and removing of all historic images contained within the website that potentially infringes on copyright to ensure that we would not fall foul of this again. We have also got the web developer to in to help remove the website from wayback machine and any other internet archive so that we are not continuously targeted by those looking for an excessive amount of payment demand.

However, whilst checking and removing historical images with potential, we have now received another new email requesting production of a licence again from another (3rd) image from 2016. We had removed this image prior to this new email requesting to produce a licence.

I have checked that the image is available for licensing for "editorial use in a blog (not advertising)" for a one time fee of £29.99+VAT for in perpetuity use. There is no issue paying this amount or a small admin fee on top however what we are curious about is the definition of "advertising" or "commercial" usage on a web page that has clearly defined headings for pages ie Home/About/Success stories/Blog/Contact etc where the images are not used outside of the blog page. Example from a solicitor page which is very similar to my partners blogs. https://thelondonsolicitors.co.uk/blog/

i.e do we have a leg to stand on regarding "editorial use" if they try and demand payment for a commercial licence as it does not expressly state any definition on the Alamy website under any T&C/licence agreement other than "editorial use in a blog (not advertising)".

Additionally, I am curious on the concept of remedy as websites such as youtube as an example would normally remove content that could infringe on copyright and that is the remedy. It appears with Picrights, there is no choice here on remedy ie, remove picture or pay the licence, it is both remove the image and pay an extortionate sum many times the value of the licence without actually being given a licence. Is this entirely legal?

Many thanks in advance for your opinions.

Hi Mango.

From what you have said about the use of the image, it sounds as if this is editorial use and so the £29.99 licence would be the appropriate one.

Moving on to your question about remedies, in legal terms a remedy for alleged copyright infringement could include removal of the image, damages for the amount lost to the claimant in not having the correct licence, or if the image was being used on a commercial site, an account of profits, that is to say, a sum assessed by the court of the profit made by the alleged infringer through the use of the image. Damages or an account of profits are alternatives, a claimant is not entitled to both. Separate to standard damages, there are what is known as additional damages. These may be awarded by the court if the defendant in the claim has behaved in an unreasonable manner during the pre-trial negotiations or at trial. Additional damages may also be applicable if the claimant is successful with a claim for infringement of moral rights, usually based on the failure to provide a credit to the author of the photograph when this had been asserted.

Outside of full litigation in court, the copyright owner is free to make any demands about remedies that they wish, including asking for a disproportionately large sum of money. It does not follow that such demands have to be acceded to. That said, if an image is not removed once the defendant has been made aware that it is an infringing one, then the tort (civil wrong) continues, even if a sum in lieu of damages has been paid. It is worth noting that if you pay an amount based on the £29.99 licence fee to settle the claim, this does mean that you have bought a licence. This would merely be a remedy for the past wrong. If you wished to continue to use the image, purchasing a licence from Alamy would then be the next step.

The point about Youtube is a different one. Youtube is not responsible for posting the infringing material on their site and so in accordance with the Digital Millennium Copyright Act (DMCA) and the EU eCommerce Directive, they only become liable for infringement if they fail to speedily remove the infringing material after they have been informed about it. This is usually referred to as a DMCA takedown.

I hope this answers your questions.

Hi AndyJ

Many thanks for taking the time to provide a comprehensive reply to my queries, very much appreciated.

We have yet to respond to the latest request for production of a licence but intend to do so before the 14 day reply period stipulated.

Our intention is to acknowledge that the image from 2016 was used by numerous sources but unaware of where the 3rd party gleaned the image from 8 years ago, that it has been removed from the website and that we are willing to offer the "editorial" usage payment plus a small administration fee as a fair and proportionate remedy to place the copyright holder in the same position they would have been in if a licence was purchased.

Fingers crossed.

Interesting development (at least for me) was that I contacted Alamy customer services whom suggested the use was entirely editorial. (Alamy

“Correct. If the image is used within an editorial blog on a company website, the Editorial Website license will cover you for this.”

I requested information from Picrights on the cost breakdown which has not been provided however their reply was

Picrights have responded with:

“As previously advised, the license from Alamy is for Editorial websites only and would not apply to your website/usage. The fee requested is in line with our clients (The Associated Press) Pricing matrix, please forward the full correspondence you have had with Alamy so that I can investigate why they are stating the Editorial website license would apply to this matter. Once I have this information I will reach out to my client, I have placed the matter on hold.”

Question I have is that Alamy is where the image can be licenced from. There was a deal done by AP and Alamy wherby Alamy was to licence AP images to UK and Irish customers. So who is the real client in this secenario? Alamy? Also what rights to Picrights have to claim AP pricing matrix rather than Alamy? What is the best way to respond?

Hi Mango,

It's certainly complicated. My guess would be that PicRights are working on behalf of Alamy. Alamy in turn are acting as agents of AP who, presumably are the actual copyright owner. I don't know anything about the contract between AP and Alamy, but presumably this allows both of them to market the same images but at differnt prices, which is surely a recipe for cockups, not to mention ripping off customers. If PicRights are in fact working on behalf of AP, then they must have some mechanism for checking if Alamy has issued a licence for a particular image before they fire off one of their demands. Irrespective of who theyr are working for, the market value of the licence is the one which a reasonable person would pay, ie the cheaper, Alamy one.

Two things come out of this. First, PicRights cannot unilaterally decide what use meets the editorial standard; if Alamy have told you the use is editorial, that is the end of the matter (this has to do with contract law, rather than copyright law, so I won't go into the detail here). Second, no-one except the copyright owner (here I'm assuming this is AP) can bring a claim in court. If PicRights is working for Alamy then they are at one remove from the copyright owner (the fleas on the organ grinder's monkey so to speak) and neither they not Alamy can make the decision to pursue the matter in court (see section 96 CDPA). This shows how hollow PicRights' threats are.

Please do keep us updated with developments.