August 18, 2019

By: 
Rachel Strella

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

  1. Interesting read, Rachel.
    Glad it turned out well, although this was a flaky attempt at best by Pixsy.
    I had a Pixsy demand letter in December myself. So, I found this post while researching how much trouble I might be in!
    Although, after finding a few posts like this one where Pixsy was rebuffed, I'm feeling better.
    I'd hold my hands up if I "stole" an image, but I don't feel like I have.
    I picked up a Creative Commons 2.0 image from Wikipedia. Pixsy has since informed me the image belongs to a Flickr user (Pixsy has partnered with Flickr now to carpet bomb usage of Flickr images).
    They want $750 from me, citing among other reasons "loss of earnings" - how can someone who licenses an image for free that's on Wikipedia and who knows where else lose earnings?
    I've gone back on forth on them via email disputing this fact. They keep sending me demands for the money threatening to escalate the issue.
    I'm a bit of a worrier, so I'm kinda buying time here. Copyright lawyers are expensive, but the principle tells me to fight them off.

    1. Hi Matty,

      Thanks so much for the comment. It is disheartening when I see small business owners, and others, get picked on by Pixsy, Getty etc. My principle tells me to fight, as well. Sometimes, you do have to cut your losses and figure out is it going to cost more to fight it, or pay them to shut them up. Sad thing, but that's how they do it!

  2. Matty, we are in the same position . In all of our searching, it clearly appears that the image that was used was pulled from the link they provided on Flickr (the images match). But we never use FLickr.

    Below the image on Flickr there is an option to download with a "Some Rights Reserved" license included. When clicking on that link it points to this creative commons license:
    https://creativecommons.org/licenses/by/2.0/

    This license states this:
    Share — copy and redistribute the material in any medium or format
    Adapt — remix, transform, and build upon the material
    for any purpose, even commercially.

    What I didn't do appropriately is provide credit back to the original owner of the image. As stated in the same license:
    Attribution — You must give appropriate credit, provide a link to the license, and indicate if changes were made. You may do so in any reasonable manner, but not in any way that suggests the licensor endorses you or your use.

    Again, we really don't recall pulling this image from Flickr as we have been using Unsplash and Canva (all copyright free with no attribution) We are a very small company and don't know if we should pay the $750..ignore, wait it out. We certainly can't afford a lawyer

  3. Pixsy are not IP trolls, they act on behalf of the photographers (eho have to individually submit each claim they want Pixsy to pursue, but Pixsy accepts far from all suchrequests). I don't think the "Hey! I got it from Wikipedia, it's a free photo" excuse is the least bit convincing. It's free to use assuming you make a good-faith effort to credit the author, it doesn't even have to follow the exact wording of the license. If you can't even do that, you are just as bad as somebody stealing non-CC photos from elsewhere. It's image theft.
    I agree the twitter thing mentioned in the post above sounds weird though. Normally pixsy doesn't allow photographers to submit requests for user-submitted dmca-able things like that.

  4. Very interesting post. I am however, a photographer and may take is very different. Even though the post may be a 'click-through' post, I can tell you that there are millions of images that end up being used all over the world for advertising, informational blogs, etc. where-in the photographer receives absolutely no compensation or even credit. For far too long media of all types have gotten used to virtually free imagery, while gaining value from those images. It is time for those using the images to take responsibility to find out if an image they want to use is copyrighted or not - or, in a far better solution, PAY for use of images.

    1. Thank you for sharing your perspective as a photographer, Heidi. I definitely understand where you're coming from. It's one of the main reasons why I've started using my own photos more or paying for licenses. Thanks again for chiming in!

  5. "..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."

    This is just flat wrong and you're spreading misinformation by telling people this. It's like saying that as long as you stop speeding when a police officer pulls you over you won't get a ticket. The DMCA offers no such protection. If you can't afford to pay a settlement when caught infringing someone's copyright, or cannot afford a lawsuit, then simply don't use any content without permission or license.

    1. I encourage you to check out the US Copyright Office’s own summary of the DMCA’s provisions (found here: https://www.copyright.gov/legislation/dmca.pdf).

      Here’s the pertinent text from that link:
      ———
      Remedies
      Any person injured by a violation of section 1201 or 1202 may bring a civil action in Federal court. Section 1203 gives courts the power to grant a range of equitable and monetary remedies similar to those available under the Copyright Act, including statutory damages. The court has discretion to reduce or remit damages in cases of innocent violations, where the violator proves that it was not aware and had no reason to believe its acts constituted a violation. (Section 1203(c)(5)(A)). Special protection is given to nonprofit libraries, archives and educational institutions, which are entitled to a complete remission of damages in these circumstances. (Section 1203(c)(5)(B)).
      -------
      ———
      Limitation for Information Location Tools
      “Section 512(d) relates to hyperlinks, online directories, search engines and the like. It limits liability for the acts of referring or linking users to a site that contains infringing material by using such information location tools, if the following conditions are met:
      • The provider must not have the requisite level of knowledge that the material is infringing. The knowledge standard is the same as under the limitation for information residing on systems or networks.
      • If the provider has the right and ability to control the infringing activity, the provider must not receive a financial benefit directly attributable to the activity.
      • Upon receiving a notification of claimed infringement, the provider must expeditiously take down or block access to the material.
      ...The provisions... protecting the provider against claims based on having taken down the material apply to this limitation.”

  6. This is interesting. I'm dealing with August LLC now for a copyright claim from a photo that was posted in 2016 before I owned the site. They're asking for $1600. I told them I'm only using the site for fun and didn't posess it until 2017. As soon as I got her email I removed the infringing image and the links throughout Google as my job is SEO so I removed them all from search console and then put in notice to Google to also remove the image from their search functions. However, they're still pursuing even though I showed them an email and the agreement signed when I sold the site. I'm wondering though if DCMA standards are done and I didn't own the site at the time the image was infringed upon do they have any right at all for making a claim? I'm also unsure where they're located for legal representation as this LLC seems to be Australia based and I'm unsure if that changes any legal claims.

    1. I am sorry to read that you're dealing with this! These trolls are relentless. They don't care if you didn't own it or not. They will just keep bugging you and threatening you. Unfortunately, it comes down to how much harassment you're willing to take. Best of luck as you work through this.

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