Anyone gone to court over a Pixsy case?

[sdavies1]

First HI to the forum and I can see that plenty of good advice travels around this site. I've been active about my issue with Pixsy since August on another forum and when I found Pixsy threads here, I wanted to post my tales of woe with this rogue brand.

Long story short: In August I got my first threat from Pixsy over a free image from Flickr under CC2.0 I used on my blog in 2022. I was unaware that free images needed attribution but that's irrelevant against the crap coming my way. They demanded £556 as a "license fee" and gave me 3 weeks to pay. I've gone to and fro since then and thus far, they have not stuck to their threatened deadlines. I explained how the matter was a moral rights issue and not infringement going by the Copyright Act 1988. No losses were incurred by the photographer - clearly a troll - as it's a free Flickr image. Plus Pixsy refuse to break down the costs and explain how they arrived at the fee. My site always looked like a commercial site but never was taking any business in content writing services. Just a front window. They claim I can't use the "fair use" rule for that but actually I can prove that the site never took any money. They even went to my Facebook page and quoted a line which looks business like. Okay, so what. Still irrelevant though as they've gone off on a tangent to avoid explaining how they arrived at the fee demanded and how it impacted the photographer financially, which it didn't of course. They do think that providing evidence of fees paid for licensed images to the photographer by various brands is relevant. How? The image I used is not in those lists and it's a free image. Flickr frown on it all and ended their Pixsy partnership in 2019. Creative Commons explicitly say in their rules that artists should contact anyone first and request a takedown and not use Pixsy services for financial gain. This all amazes me then as surely no cases should end up costing folks at the IPEC court at all. Pixsy offered a reduction to about £400, but I have stood my ground and repeated my reasons and request for justification of the fee demanded. Now I'm getting told that as I won't negotiate, they will escalate to IP lawyers.

I'm in a lot of debt and can't afford the fee if I chose to pay. I would hope that a court would consider that too.

So, anyone gone through/going through this debacle with Pixsy? What stage are you at and can any experts shed light on what to do next? I have reported the photographer to Flickr to investigate his trolling actions. I found his profile on LinkedIn. So I may get in touch with the rogue.

I see this not ending and despite Pixsy delays, it feels a tad more real now that they say it's getting "escalated" if I'm confirming that I won't negotiate.

Thanks in advance for any details from folks on how you handled/are handling your Pixsy case.

[echat11]

Hi SDAVIES

Welcome to LB

An odd place to start, but have a glance through Trustpilot, you'll get a feel for what you are dealing with.

It seems from what you say, they deem your actions as a transgression, but has given you no way of correcting the transgression, i.e. 'takedown' etc that's simply 'unfair'. Courts are 'hit and miss', but you weren't given the opportunity to take corrective action.

Just posted for information -

https://copyrightaid.co.uk/forum/viewtopic.php?t=3104

[sdavies1]

Hi SDAVIES

Welcome to LB

An odd place to start, but have a glance through Trustpilot, you'll get a feel for what you are dealing with.

It seems from what you say, they deem your actions as a transgression, but has given you no way of correcting the transgression, i.e. 'takedown' etc that's simply 'unfair'. Courts are 'hit and miss', but you weren't given the opportunity to take corrective action.

Just posted for information -

https://copyrightaid.co.uk/forum/viewtopic.php?t=3104

Yes, seems to be a mix of success by looking at Trustpilot. But enough to indicate that folks should take it seriously. I am in the process of hopefully getting IP pro bono support. But the fee, while for me is beyond what I can afford, is not a high enough figure to bother with for most lawyers. That may indicate that Pixsy's associated legal partners will not be interested. Some TP reviews say lawsuits went through and won but what figures were they involving.

That's if it does escalate, which Pixsy now threaten.

Pixsy are no legal pros at all. For one, they confuse copyright infringement with breach of moral rights. The image being free means that there were no losses incurred and therefore their demanded fee does not justify the image's true market value. They compared the image to the client's licensed images which is what he charged when not free on Flickr. But the image's value is not based on that but on the fact it was added as a free image on Flickr. Statutory damages also can't really push far since Flickr now have an updated community guidelines with a request for 30 days to be sent to anyone not attributing before seeking legal action. Not just license specific as it is with 4.0, so applies to all licenses.

This may go to court, may not. Hard to determine but the threat is there. I am trying to decide how much more to negotiate with Pisxy, or even if I should, or wait till it is escalated.

[echat11]

Update the thread with developments, there is also other information out there on Pixsy etc.

[sdavies1]

How does it normally go down in the IPEC court? Is the attribution failure, while not a transgression, enough for the court to go against me?

Something going for me, other than the lack of justification they offer for the fee amount since they first contacted me with a license fee demand in August.
It seems that Flickr have updated their community guidelines in March this year. And now require that artists do notify users of their images first if not attributed - that's all licenses not just CC 4.0.

I have asked Flickr to investigate the client of PIxsy, and how he uses his images to make money on Flickr. Since the Pixsy demand came to me after March, these significant changes matter as the guy did not follow them, made no attempt to contact me to request it taken down or attributed, breaching the guidelines and knowingly out to make money through Pixsy.

The Trust and Safety team at Flickr are not impressed that I was not notified.

And they have requested many details on the case against me such as the image URL, and the Pixsy client details. He's so obviously a troll with over 13,000 images on his Flickr account. Most look so similar as though done quickly. He does also sell licenses for images on other sites but that should not be relevant as this was a free Flickr image. Had it been one he requested payment for, that would have been clear on discovery of the image. But I was on Flickr under the impression that free images found off a Google search can be used.

These changes in the Flickr and CC policies should carry some weight as of March this year.

I'll keep updating this thread.

This may provide weight to my case if not even help put an end to it. Hard to say.

Flickr updated their guidelines as I mentioned and I want to post that change in case anyone has not read the March 2023 update.

Previously, Flickr’s community guidelines were a list of do’s and don’ts. Because of this format, our community guidelines evolved into a long list of policies and prohibited behaviors with minimal information about what type of interactions Flickr is for.

Then the big specific part that changes how they view use of the licenses:

Another significant addition is the new “Give some grace” guideline, applicable to Flickr members using Creative Commons licenses on their work, asking licensors to give good-faith reusers a 30-day grace period to correct any error or misuse of their open-licensed content with no penalty. This change was introduced to prevent the malpractice of so-called copyright trolls using the threat of litigation to generate income, and in support of the strategy for addressing license enforcement described in the Creative Commons Statement of Enforcement Principles.

Flickr applied the update in March so any demands through Pixsy, with no notification from the Flickr account holder, did not follow guidelines. This guy using Pixsy to get money out of me did not follow their rule: He did not give me 30 days grace, a good-faith reuser, it is a breach of their guidelines. This may be a step in my favour.
https://blog.flickr.net/en/2023/05/18/h ... uidelines/

Creative Commons Statement of Enforcement Principles are also updated and at https://creativecommons.org/license-enf ... rinciples/. I am not sure when CC made the changes but it's significant. Not really directly changing how copyright was misused I guess in the IP law's eyes but significant. Or perhaps it is enough. Don't know.

As a licensor, you may always choose to reinstate a license that has been terminated, no matter which version of the license you’ve used. When you contact someone about a violation of the pre-4.0 license terms and they take the necessary steps to correct their errors, it is recommended that you follow the 4.0 practice of reinstating the license.

How a court would view this, I'm not sure at the IPEC. Creative Commons stress that "Legal action should be taken sparingly." CC don't want firms like Pixsy using the infringements as a business model as it is damaging to the wider community of artists, of course. And their statement rightly says:

But damages awarded for copyright infringement can sometimes be far out of proportion to the magnitude of the harm, and often inappropriate in the case of a good faith reuser. When enforcement becomes profitable, especially when licensors act in a way that suggests they want reusers to violate the license so they can collect fees, it crosses over into trolling and runs counter to these principles.

Anyway, don't know if this adds strings to my bow but it does put pressure on Pixsy's client to explain why he breached Flickr guidelines. And proves he's a troll and he may lose his account on Flickr. Good riddance if so. I'll be back with the latest on the investigation from Flickr Trust & Safety.

[R0b]

Hi,

Let me try to answer a few points as a summary response to your posts

1. It's very unlikely Pixsy will take you to court if you show them enough teeth that you intend to defend any legal proceedings. Usually from what I have seen they are full of hot air at best and tend to pick on the vulnerable and those who have no clue. Case in point, lots of threats, demands and deadlines but they don't seem to be going any further.

2. Moral rights are distinctly different from copyright but closely related. Moral rights protect non-economic interests whereas copyright protects economic interests. I think you are right to argue this is a moral rights issue, but do be aware that damages can be award for moral rights issues.

3. You say you found the photographer, is he based in the UK or somewhere else?

4. Will Pixsy take you to court on behalf of the owner of the image? Highly unlikely for several reasons.

(i) Pixsy are based in the US and I suspect they are not registered or authorised by the Solicitors Regulation Authority to perform certain reserved legal activities, one of which is the conduct of litigation. What that means in practice is that if the copyright owner wants to pursue this, they are going to have to stump up some money to find a solicitor or barrister or some other legally qualified person or law firm to act on their behalf to issue what appear to be baseless claims.

(ii) The IPEC has a small claims track to handle low value claims and operates very much in the same manner as the small claims track for county court claims i.e. if the value of the claim is less than £10k the rule is that no legal costs are recoverable. The costs of instructing lawyers to handle proceedings will dwarf the sum of money they are seeking from you and therefore not commercially viable.

Of course, they could issue a claim in the copyright owner's own country, but they will then need to spend much more money trying to get a foreign judgment turned into an enforceable court order in this country. It's not a straight forward process and you would have pretty decent grounds to object if it ever went that far. Again, the key point here is that cost is involved which eats into the copyright owner's (and Pixy's) profits/greed.

(iii) There is law in the UK called the IP (Unjustified Threats) Act which was intended to protect vulnerable people and small businesses from baseless claims, intimidation, threats of legal proceedings which are not justified (which includes threatening proceedings but then not following through with it). I reckon you have good grounds to use this as a defence and may very well be entitled to compensation yourself if it ever went to court.

5. I haven't fully read up on the CC terms or Flickr's terms of use but if the copyright owner is required to do certain things, then that is another line of defence against any proceedings brought against you. Courts will typically not allow people to benefit from their own breach.

If I were in your shoes, I would want to put this to bed once and for all by sending out a final response, explaining your position and any breaches the copyright owner may have caused himself on the basis that he uploaded to Flickr and failed to comply with the terms so his claim for compensation is void for all intents and purposes.Weave in the unjustified threats also and reserve your rights in that regard if legal proceedings are issued here in England and Wales.

I would round off by saying you have no intention of paying and as such you will not be engaging any further with Pixsy. Their client now needs to put up or shut up by either starting legal proceedings or dropping the matter altogether. If they continue to make repeated demands despite being on notice that you have no intention of paying, any subsequent demands, threats and other correspondence will be treated as harassment (except for matters related to legal proceedings) and you reserve the right to pursue an action against both Pixsy and their client. If they continue to ignore you and bombard you with (presumably emails) then you may want to also say that you will block their email address without further notice.

If you want any feedback on any draft response, feel free to post up here and we can comment. So, in a nutshell, I don't expect this to go anywhere at all because if they had any intention, they would have taken steps by now.

[sdavies1]

Thanks so much for your detailed response and even more thanks for your time.

How is copyright infringement determined? Is it straightforward copying of an image? Not that linking to it's source on Flickr would be that different as the CC 2.0 attribution was not added. The UK Gov site has a clear page on IPO stuff when it comes to infringement. Is it more serious to download an image, so copying it, and uploading to a web site with no attribution when used? It's the use without permission that is highlighted in the accusations.

They have not mentioned a lack of 'attribution' as per the license, just the use of the image without permission is what I'm accused of. That's why I ask? On Flickr, the free images are all under the CC 2.0 license rules so creators want to be credited, something I was not aware of as a rule last year.

While I see it as a moral rights issue, due to the lack of attribution, perhaps it is a straightforward infringement issue, one that the IPO recognises. Is there a legal difference depending on linking to it or copying to the computer for uploading? All the CC 2.0 license states is that it must be attributed if used.

I've been back and forth since August and have shown 'teeth' bared by disputing the amount asked for, how it's broken down, the lack of a takedown request, why I think it's moral rights but as said, is it? The creator of the image is based in Slovenia.

Flickr can't influence the case against me but it's gonna be a problem for the creator as he did not follow their guidelines and looks like the troll he is.

The the IP (Unjustified Threats) Act is an interesting fact you sent my way. I'll bear that in mind. If it does go the legal distance.

My latest email response to them has mentioned the creator's failure to contact me and request I take it down or add attribution, again. But this time it is going against Flickr and CC's updated policies as of March this year. Would have been so simple for all involved. I have also instigated Flickr investigating the guy and I hope to hear he's shut down. I have offered to negotiate further mainly as the case manager insinuated that I don't want to negotiate as I rejected the demanded fees. And I did also round off by saying that unless further negotiation on the demanded amount is possible, I am no longer in contact unless legal proceedings start.

I didn't say I had no intention of paying in case the threat to escalate is real, but I am not agreeing to any figures either. I asked that the fee is negotiated further as it's too high a figure and not anything like the market value of a free image. And does not represent economic losses to the creator as it's free on Flickr. A court can easily see it's a business venture to make money and will surely frown on it.

My next move is simply to say they will be no intention of paying if the figure is not reduced. I don't see them reducing the demanded amount. And do as you suggested on the harassment part if they just send more threats. Though, they have said that the next move is to send a final notice and escalate. So I'm waiting to hear from my latest response to them.

Thanks for your time and the offer of feedback on any draft response. I'll be back with an update on how this goes. Not heard yet this week since last Friday's latest threat. But as sure as, you know what, they will be back.

[sdavies1]

As a worrying update, though these are US case examples. One guy allowed it to get escalated over a $750 fee he refused to pay and he ended up in court and lost and had to pay thousands of dollars. Another case or two show that people just paid the fee. It may go different at the IPEC in the UK but this is uncomfortable reading.
https://www.bbb.org/us/ca/walnut/pro...368/complaints

It should be noted though that Flickr updated their guidelines in March 2023 that required takedown notices to be sent to users of their images without attribution. And Creative Commons actively request that photographers do this. Pixsy state that they give their clients this option via their accounts on the Pixsy site, like a cease and desist notice. And Pixsy say "We do offer the ability to send takedown notices to all of our clients and it is each photographer's choice whether to send a takedown notice, or pursue compensation." In my case the photographer chose not to obey the updated Flickr guidelines asking that the same 30 days notice is given no matter what license is used.

Take a look here, https://www.flickr.com/help/guidelines

"Give some grace. When you choose to grant permission to your photos under any open license available on Flickr, we ask that you give the reuser a 30-day grace period to fix any possible mistake or misuse of your CC-licensed work with no penalty. Failure to allow a good faith reuser the opportunity to correct errors is against the intent of the license and not in line with the values of our community, and can result in your account being removed. If you use CC licenses, please understand that we support and adhere to the strategy for addressing license enforcement described in the Creative Commons’ Statement of Enforcement Principles."

And here is CC's statement of enforcement principles, https://creativecommons.org/license-...nt-principles/

[R0b]

Cases in the US is of no relevance to the laws in this country, people over there will sue because their Mcdonalds fries look oddly shaped. As I mentioned before, the costs of pursuing you is not going to be commercial viable for Pixsy or their client so this is not going to go very far. If it does go to court, it will likely be out of principal as their costs will be higher than the claim which is unlikely to be recoverable from you.

Why don't you just settle/pay and you can be done with it and stop worrying about this. Our views about this topic are not going to change and if it comes to legal proceedings, we can help you draft a defence. You'll still have 6-12 months before a trial date is given so worst case, you can save up a little amount every month so if you did lose, yu can immediately pay it back.

Unless you have anything meaningful to report back on, I don't have anything further to say on this thread.

[sdavies1]

Thanks for the info. I do appreciate your advice. I'm just having to play devil's advocate on this one despite me seeing how useless their case is. Particularly to a lawyer. I have had no luck getting even pro bono lawyers interested so can't see them finding someone bothered plus all the costs as you say.

I'll keep the thread updated as the case slithers along. That bugs me, the fact that like another forum, folks who dealt with Pixsy didn't come back to spread the news on the outcome. I will be, I assure you. Transparency all the way. If I need help with a defence draft, I'll be back. I am making an offer, one I expect them to refuse, may be calling their bluff, maybe not.

Thanks. Back soon with an update.

[atticus]

A lawyer acting "pro bono" is entitled to select the cases he or she takes on. The phrase does not mean free to all comers. Sorry.

NB be prepared for your offer to be accepted. If their business model is to squeeze money out of people but not sue, they will take what they can get.

[sdavies1]

Well, as expected, Pixsy came back with the same threats as back in August. It's no shock now. Only no attribution is cited and therefore this is not copyright infringement at all. So based on the excellent advice here and on another forum, I am deciding whether to shut it down and request no further contact or offer a settlement, a low one as compared to their demand but at least my records show compliance then. I'll update here how it goes.

[sdavies1]

Hi,

Let me try to answer a few points as a summary response to your posts

1. It's very unlikely Pixsy will take you to court if you show them enough teeth that you intend to defend any legal proceedings. Usually from what I have seen they are full of hot air at best and tend to pick on the vulnerable and those who have no clue. Case in point, lots of threats, demands and deadlines but they don't seem to be going any further.

2. Moral rights are distinctly different from copyright but closely related. Moral rights protect non-economic interests whereas copyright protects economic interests. I think you are right to argue this is a moral rights issue, but do be aware that damages can be award for moral rights issues.

3. You say you found the photographer, is he based in the UK or somewhere else?

4. Will Pixsy take you to court on behalf of the owner of the image? Highly unlikely for several reasons.

(i) Pixsy are based in the US and I suspect they are not registered or authorised by the Solicitors Regulation Authority to perform certain reserved legal activities, one of which is the conduct of litigation. What that means in practice is that if the copyright owner wants to pursue this, they are going to have to stump up some money to find a solicitor or barrister or some other legally qualified person or law firm to act on their behalf to issue what appear to be baseless claims.

(ii) The IPEC has a small claims track to handle low value claims and operates very much in the same manner as the small claims track for county court claims i.e. if the value of the claim is less than £10k the rule is that no legal costs are recoverable. The costs of instructing lawyers to handle proceedings will dwarf the sum of money they are seeking from you and therefore not commercially viable.

Of course, they could issue a claim in the copyright owner's own country, but they will then need to spend much more money trying to get a foreign judgment turned into an enforceable court order in this country. It's not a straight forward process and you would have pretty decent grounds to object if it ever went that far. Again, the key point here is that cost is involved which eats into the copyright owner's (and Pixy's) profits/greed.

(iii) There is law in the UK called the IP (Unjustified Threats) Act which was intended to protect vulnerable people and small businesses from baseless claims, intimidation, threats of legal proceedings which are not justified (which includes threatening proceedings but then not following through with it). I reckon you have good grounds to use this as a defence and may very well be entitled to compensation yourself if it ever went to court.

5. I haven't fully read up on the CC terms or Flickr's terms of use but if the copyright owner is required to do certain things, then that is another line of defence against any proceedings brought against you. Courts will typically not allow people to benefit from their own breach.

If I were in your shoes, I would want to put this to bed once and for all by sending out a final response, explaining your position and any breaches the copyright owner may have caused himself on the basis that he uploaded to Flickr and failed to comply with the terms so his claim for compensation is void for all intents and purposes.Weave in the unjustified threats also and reserve your rights in that regard if legal proceedings are issued here in England and Wales.

I would round off by saying you have no intention of paying and as such you will not be engaging any further with Pixsy. Their client now needs to put up or shut up by either starting legal proceedings or dropping the matter altogether. If they continue to make repeated demands despite being on notice that you have no intention of paying, any subsequent demands, threats and other correspondence will be treated as harassment (except for matters related to legal proceedings) and you reserve the right to pursue an action against both Pixsy and their client. If they continue to ignore you and bombard you with (presumably emails) then you may want to also say that you will block their email address without further notice.

If you want any feedback on any draft response, feel free to post up here and we can comment. So, in a nutshell, I don't expect this to go anywhere at all because if they had any intention, they would have taken steps by now.

Seems copyright is not covered where the unjustified threats part is concerned. No grounds under the Intellectual Property (Unjustified Threats) Act 2017
Shame that but it's the rest of the great advice that I'm pursuing here as it is time to shut this case down.

[R0b]

Seems copyright is not covered where the unjustified threats part is concerned. No grounds under the Intellectual Property (Unjustified Threats) Act 2017 Shame that but it's the rest of the great advice that I'm pursuing here as it is time to shut this case down.

Yep, you are correct and if i recall passing off is another IP claim not covered by the Act, but I simply included it just in case Pixsy or the owner tried to argue something else other than copyright.

Good luck either way, hopefully they will stop contacting you.

[Jack Harmon]

Hello sdavies1 ,

Thank you for sharing this.
Any updates?

I am in a similar situation. See my post:

https://legalbeagles.info/forums/for...-use-of-images


Should I just ignore them? or ask for a discount?
Or should I reach out to the photographer directly and explain the situation?
or what should I do?