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Author Topic: New Pixsy letter  (Read 10976 times)

gnr5

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New Pixsy letter
« on: April 12, 2017, 11:46:12 AM »
Hello everyone,
I've read this forum and I want to share what's happening to me. Last year I ran a celebrity fan site, the site was a complete failure to be honest and at the end of the year I got an email from Pixsy about one picture, they specified the photographer, the URL of the image of where it was originally posted (this was a flickr gallery) and the URL of where I posted it. I went to the photographer's URL and I didn't find any images of this particular celebrity. Then I searched my website for the filename and I didn't find it either. I ignore the email and my hosting came up for renewal so I didn't renew, everything has been deleted.

Now, I just received another email, claiming that "fair market rate is about to expire", they want over $500 for an image maybe about 50 people saw since no one visited the site.

What do I do when I can't even proof that I used that image, all the server info is gone at this point. Should I contact the photographer directly? I haven't replied to the emails.

DavidVGoliath

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Re: New Pixsy letter
« Reply #1 on: April 13, 2017, 07:15:19 AM »
Caveat: I'm a photographer, and Pixsy is one of the tools I use to help me find unlicensed uses of my work, but I don't currently use them to recover lost revenues on my behalf, nor have I done so in the past.

As you'll no doubt know, Pixsy's service will first index a photographer's own works either from their hosting service (Flickr, Tumblr, Instagram, Photoshelter etc.) or from a direct upload - that's how it knows what images to search for.

Once it has indexed a photographer's works, it then scans the web for matches and - this is the crucial bit - reports back the information to the photographer, who then decides what action they want taken. If you've received a letter from Pixsy on behalf of the photographer, it's because that's the action they want to take. Pixsy do not send out letters automatically or blindly.

As for your statement that the image file (and your site) have since been deleted on account of you not renewing hosting/domains - well, the way Pixsy indexes sites, it caches evidence of the uses, such as the URL of the page, and the URL of the static image file that would have been on your server. There'll no doubt be legacy WHOIS data that shows you owned the domain name at the time they indexed your use of the photograph referenced in their letter. There may also be a third party record of your website at the proximate date, on a service such as web.archive.org (known as the "WayBack Machine")

In this way, it's a little like having CCTV footage: you might not recall what photographs you used, or when you used them, but if evidence exists to show what was on your site at a specific date and time, that's all that is required to claim an infringement. Should additional third party evidence also exist, that only bolsters the claim further.

You could perhaps search the photographer's name in the US Copyright Office's database to see if they have any registrations on file. If they do, and any of the registrations suggest they are related to the subject matter of the image in question, that would point to the validity of their claim. You also could try to contact the photographer directly if you want to.

Having worked as a photographer for over twelve years, I can tell you that the majority of my peers simply want to be fairly compensated when someone makes use of our work. Before 2011, it was very hard to trace infringements unless you had very deep pockets to pay for means to do so, but as indexing technologies evolved, they became more commonplace and also free to use (TinEye and Google's reverse search being prime examples)

When you work as a photographer, your images are a result of the time, energy, and money that you have poured into your craft. To find your work being used without permission can not only be an indicator of lost revenues, but also quite deflating. Any of my peers will tell you they'd readily engage in pre-use negotiations but care little for the hassles of recovering losses from infringements. That's what attorneys are for - or services such as Pixsy.

What you decide to do is ultimately up to you, but with Pixsy, I'd personally like you to consider that the genesis of the letter/email you have received is from someone who takes their craft seriously - at least seriously enough to expect to be compensated whenever someone uses their work.

gnr5

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Re: New Pixsy letter
« Reply #2 on: April 13, 2017, 09:32:38 AM »
DavidVGoliath,

I totally get your point, and I also get the photographers point. I'm just trying to see my options and if someone has dealt with anything like this directly. I need to get ideas on how to proceed here without spending over $500 (which I don't have to begin with) on a picture that no one ever saw and I made $0 on.

DavidVGoliath

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Re: New Pixsy letter
« Reply #3 on: April 13, 2017, 10:52:02 AM »
I need to get ideas on how to proceed here without spending over $500 (which I don't have to begin with) on a picture that no one ever saw and I made $0 on.

From a photographer's perspective: the lack of page views and/or revenue generated from your use of the photograph will likely not be a mitigating factor. I'll try to explain why.

If I license my photograph of 'Celebrity X' for use in an online news article for, say, $500, then I don't care whether that article gets 1 hit, 1000 hits, or if it gets the highest traffic of all their stories that week. I don't expect to be paid more if the story gets traction and, in a similar way, I certainly don't offer a refund on my fees if the story falls flat.

It's a little like renting a car for a weekend. The dealer doesn't care whether it's simply parked in your driveway during that time, or if you're taking it on a 48hr road trip... so long as it's returned to them in the expected condition at the agreed time and date. It's not a perfect analogy, but it's one most people can grasp.

I'll also say this: to you (and to most folk), $500 seems like a crazy high asking price for the use of a photograph. Consider that the photographer might well regularly license their shots to clients for that amount, so it's a normal asking price for them.

I do appreciate that not everyone has a "spare" $500 simply laying around to settle these matters but, beyond offering the insights I already have, I can't suggest a course of action to you. Others might say that trying to negotiate a lower amount is a good option, some will say you should just ignore the letter/email and wait until you receive a court summons, or your three year statute of limitations has passed (assuming you're in the US, that is).

gnr5

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Re: New Pixsy letter
« Reply #4 on: April 13, 2017, 11:49:18 AM »
When does the SOL date start? My first notice was Nov 2016, however the picture was taken and first published in September 2015.

Has anyone here dealt with Pixsy before?

Robert Krausankas (BuddhaPi)

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Re: New Pixsy letter
« Reply #5 on: April 13, 2017, 12:32:22 PM »
Use the Nov, 2016 date for the SOL.
Most questions have already been addressed in the forums, get yourself educated before making decisions.

Any advice is strictly that, and anything I may state is based on my opinions, and observations.
Robert Krausankas

I have a few friends around here..

DavidVGoliath

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Re: New Pixsy letter
« Reply #6 on: April 13, 2017, 12:34:12 PM »
When does the SOL date start? My first notice was Nov 2016, however the picture was taken and first published in September 2015.

Almost all courts will hold that your statute of limitations commences when the rightsholder discovered and notified you of the infringement; so, that'll be whatever date is on the letter/email that you received in November of last year.

gnr5

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Re: New Pixsy letter
« Reply #7 on: April 13, 2017, 10:31:45 PM »
I did a Copyright search and this particular image is not copyrighted.

DavidVGoliath

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Re: New Pixsy letter
« Reply #8 on: April 14, 2017, 03:44:20 AM »
I did a Copyright search and this particular image is not copyrighted.

What are your grounds for stating that? Did a search using the photographer's name not turn up any registration records?

gnr5

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Re: New Pixsy letter
« Reply #9 on: April 14, 2017, 08:06:01 AM »
Correct, name came up for other works but nothing related to this particular celebrity. I also found his address and it matches the copyrighted record, so I'm 100% the name I found on the Copyright database is him.

DavidVGoliath

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Re: New Pixsy letter
« Reply #10 on: April 14, 2017, 10:08:23 AM »
Okay - just so that you have all facts to hand: consider that it's possible for the photographer to have filed a group registration of images, and such a registration could have the particular image included, but not specifically mentioned in the registration title etc.

An example would be a certificate "Capital FM Jingle Ball 2016: Day 1". That show had twelve acts appear on stage, and many celebrities in attendance backstage etc.; a group registration of published photographs for that event contains dozens of images, but the title of the registration certificate wouldn't give you any clues as to which specific images are included.

gnr5

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Re: New Pixsy letter
« Reply #11 on: April 14, 2017, 10:33:36 AM »
Hello,

Took that into consideration, without a doubt this picture is not copyrighted. The picture they are going after is a live shot of a certain artist, the image it shows copyrighted is for a cover album and in-studio session of two completely unrelated artists. Nothing else was copyrighted under that name or address.

kingkendall

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Re: New Pixsy letter
« Reply #12 on: April 14, 2017, 11:49:03 AM »
Hello,

Took that into consideration, without a doubt this picture is not copyrighted. The picture they are going after is a live shot of a certain artist, the image it shows copyrighted is for a cover album and in-studio session of two completely unrelated artists. Nothing else was copyrighted under that name or address.

Just to clarify a photo gets copyrighted as soon as it's created.  It doesn't have to have to be registered in order to have copyright protection.  But it doies have to be registered within 90 days if a rights holder wants to bring an action for statutory damages. 

gnr5

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Re: New Pixsy letter
« Reply #13 on: April 14, 2017, 02:00:52 PM »
This photo was taken at a show back in 2015, so it is way past this 90 days. It looks like waiting it out might be my best option, from all my reading in this forum it looks like if they decide to take me to court the most they can get is the photographer's actual damages which from GettyImages a picture from the exact same show but from a different photographer is on sale for $150.

drunkenwerewolf

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Re: New Pixsy letter
« Reply #14 on: April 27, 2017, 03:49:57 AM »
Hello,

I'm experiencing something similar and I'm already glad to have found this forum! Pixsy contacted me last week to complain about an image I've been using on my non-profit blog. They are asking for $250 to expunge the unlicensed use and to allow for a further year's use. Lots of issues with this: to me $250 is a lot of money, I don't really want to continue to use the image if it means paying for it, and there are multiple free alternatives out there as it's only a picture of sheet music. But the BIGGEST issue is that I got it from Pexels.com, which is a free license website! I explained this to Pixsy and sent evidence, but they've come back to say it's still my responsibility to contact the original photographer to confirm that an image is free license. Having looked into the law I now realise this to be true, though incredibly unfair. Who thinks or has time to double check free license websites?!

I'm arguing my point and trying to at least get a reduced fee considering $250 also seems a lot for a license when I didn't earn any money from its use. I'd be interested to know how this pans out for you as it sounds like you've been in conversation with them about similar unreasonable-ness for much longer!

Tiff

 

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