August 18, 2019

Pixsy’s “Unauthorized Use” Claim Would “Break the Internet”

Pixsy “Unauthorized Use” Claim

Big Brother strikes again—and this time, the blow is lower than the case involving Getty Images covered on the #Strella blog a few years ago.

The most recent way to shake down small businesses comes in the form of citing copyright infringement on images generated in link previews on social media. (The images, because they’re embedded in blog posts, appear when articles are shared on Facebook, LinkedIn, Twitter, etc.)

Here’s an example:

In the image below, there’s a post from my blog. Let’s say a user selects the option to share the post on Facebook.

DMCA “transformative” defense

The user is redirected to Facebook where they can share the post to the newsfeed, a story, or a group. As you can see, the image associated with the post automatically populates to the feed.

Third-party click-through claim

The Claim

Pixsy sent its claim via an email to my client on July 31, 2019. The message stated that Pixsy represents a photographer as the artist's authorized licensing and copyright agent—and that my client has been using the artist's imagery without license or permission.

The email alleged Pixsy detected the unauthorized use at a specific location on my client’s website, and it shared a link to that site. That link led to a tweet my client shared from another source, which autogenerated the link preview picture in question.

To resolve the matter, Pixsy requested a payment of $750 for a “license” to the photo, to be paid through an online portal. And it threatened that “failure to resolve this matter of unlicensed use within 21 days will result in escalation to one of our partner attorneys for legal proceedings.”

Now what?

My client initially suspected this letter might be spam, but upon talking with a colleague, it was suggested that I check it out. Since the article with the picture in question originated from a third-party website, I believed the claim to be unfounded. However, having dealt with copyright trolls before, I know they are relentless about pursuing collections even if the claim is absurd.

Internet marketing consultant John Webster said, “These are people looking for low-hanging fruit. What they are claiming would break the internet if they are successful.”

I believed it was necessary to respond to the claim, so I recommended that we delete the tweet and write Pixsy back with an explanation.

Refuting the claim

As you can probably guess, Pixsy did not accept my explanation. They wrote back a few days later:

“In such instances, it is the individual user's responsibility to ensure that the correct licensing requirements are met when using an image in this way, regardless of source. The image in question was posted on your client's twitter and the appropriate attribution was not given, hence an infringement has occurred.”

Pixsy again supplied the link to its online licensing payment portal.

At this point, I knew it was time to consider an attorney. My client is talking with his legal counsel on the options.

Since I’ve engaged my lawyer, Jan Matthew Tamanini of JMT Law, LLC, in previous copyright matters such as the Getty Image suit, I decided to reach out to her for insight.

She admitted she’s never seen anything like this third-party click-through claim. She was kind enough to take some time to review the claim and comment to me for this post:

“There's precious little caselaw on whether online click-throughs connecting to a copyrighted image on a third-party Internet site infringe on an auto-displayed image owner's copyright. The prevailing wisdom of the two higher federal courts that have considered the issue (the 7th and 9th Circuit Courts of Appeals) plus the Southern District of New York (which, due to its location and the amount of intellectual property cases it handles, generally gets a lot of respect from other jurisdictions) seems to come down on the side of the pass-through website owner: click-through use through an html link to another site would not constitute copyright infringement.

In addition to the holdings of the few cases decided to date as binding or persuasive authority (depending on where the site owner or copyright holder is located), the pass-through owner should have protection under the Digital Millennium Copyright Act where the site removes the offending post after they’re made aware that the posted link includes a copyrighted image and there was no intent to infringe. The pass-through could also have a fair-use “transformative” defense under the DCMA where the click-through site is not using the photo for its artistic value, but to “transform” both it and the article which it accompanies for public benefit.

Transmitting information where an image is merely included as an adjunct illustration connected with the article, not using the image as the subject of the post, should protect the pass-through site owner. Including an image as an illustration doesn’t impair the copyright holder’s market for its image; those using the link aren't going there to copy the photo, but to read the accompanying article.”

In short, there was no legal reason for my client to pay to license the image for this type of use.

I asked Tamanini how she would advise someone who receives a letter of this nature. She said it depends on the individual situation. If it involves a click-through link, the person receiving the demand could write back and say there was no infringement, citing the DMCA.

What if a recipient decides to ignore the letter from Pixsy? Tamanini explained that Pixsy—like Getty Images—“will keep harassing until someone pays them or tells them to go pound sand.” Pixsy may still escalate, even with an attorney representing the target business, but with a valid legal defense as in my client's situation, there’s little chance Pixsy would spend the time, money, and effort to file an action. However, there are no guarantees.

The Bottom Line

A letter from Pixsy claiming copyright infringement from images displayed in a click-through link from a third-party website does not constitute an infringement on the image's copyright. Even in instances where a website unknowingly displays a copyrighted image with no intent to infringe, the DMCA exempts the user from liability for infringement as long as the site owner promptly deletes that image upon being informed of the copyright.

It will be up to each individual to determine how much harassment he or she is willing to take if no action is taken, and relative costs are always a factor, but I recommend you consider consulting an attorney who can resolve the matter quickly.

Sadly, this Pixsy claim is another way to extort small businesses with limited resources.

Don’t let them get away with it! Please help me spread the word to other business owners.

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