>> PUBLISHED ON JUNE 25, 2020
We have seen or read about a number of companies, bloggers and other website owners affected by PicRights Ltd. ("PicRights") and a California-based law firm of "Higbee & Associates" with their copyright enforcement letters - or we should call them threats - over the past few years.
As stated in their letters, they are acting on behalf of "Agence France-Presse" and other third-party content owners to "obtain compensation for one's unauthorized past use of their imagery".
The Wild West style of extortion introduced by PicRights and the overly informal language of communication used by Mathew K. Higbee representing Higbee & Associates, which is not at all the way a reputable attorney at law should address an issue, involves walking on thin ice hand in hand with copyright trolling that is likely to eventually result in reporting a cyber crime complaint.
Little is written about this, so bearing in mind that we are a socially responsible company with rich experience, we will try to help everyone who came into trouble because of the above-mentioned PicRights, Higbee & Associates and other "money hunters" alike.
Subject of the dispute: Unauthorized use of Agence France-Presse's imagery
In the present case which we have documentation for, PicRights states that they are acting on behalf of Agence France-Presse and that a violation of their copyright was committed due to the public publication of certain photos, regardless of the fact that they were previously published on other portals as well.
They cite screenshots from the website as "proof of use". The compensation they are seeking is enormously high and certainly by far exceeds the value of the photographs allegedly being the subject of dispute.
They demand that the money be paid out to them immediately, unconditionally and without discussion. If they say that the photos are theirs, there isn't anything to discuss, is there? Admittedly, they also leave the possibility to prove them wrong.
They, however, don't want to argue with you, their goal is to charge you as much money as possible even if it involves poaching or clutching at straws.
This type of behavior is nothing new and is often used by influential, "major" companies (or those who want to present themselves as such) when representing their interests to let you know you don't mess around with them.
Generally speaking, it is no coincidence that lawyers from California or New York were chosen to act on behalf of third-party content owners, mostly because of the innate belief that a CA or NY-based business is considered authoritative over the rest of the United States and, hopefully, over the rest of the world as well.
Our experience tells us that thinking about the consequences of what they say or do is not one of their virtues (for more details, check this example, or this one too).
Let's split this issue by layers and go through each of them, one by one.
Valid Evidence vs. Incomplete Allegations
1. A screenshot or snapshot cannot be considered "proof of use". The reasons are obvious. Anyone can edit any part of a screenshot, change, crop or delete a part of it, and he can do it very easily. And then he can say that it is an "authentic display" of the content of someone's website and accuse him of anything, including pornography. The screenshot can only be an accompanying illustration coming up with some much stronger proof of ownership.
Specifically, it is by law granted a permission for reproducing public works which appear to be a constituting part of the current event presented to the public to the extent of being appropriate for the purpose of informing.
This is not an isolated case and many of you will find it qualify under the fair use doctrine in the law of the United States, for example.
3. What kind of evidence would be considered solid enough for PicRights and others to be obliged to adduce? Could it be an excerpt from the register of intellectual property rights holders? No, and this is something we want to particularly emphasize: registering your work with an authorized copyright agency, in itself, is neither proof of ownership, nor of the right to use one's intellectual property (unless the property is yours, of course).
There is an advantage of registering a copyright pertaining to the ability to recover statutory damages and attorney's fees in a successful action.
However, the fact is that anyone can download content from online sources and register it under his own name, which does not make him the owner or copyright holder of that content.
So, what is the real evidence of one's ownership and/or one's right to use a copyrighted digital work?
4. The party seeking damages must enclose the infringed photograph either in physical or digital form (we are focused on digital forms here) in full resolution and original format.
Photographs provided in different dimensions, either larger or smaller, and in formats other than the original are not considered authentic works, but only derivates that, more or less, look alike the originals. For example, if the original photo is 1280x720, PNG, 32-bit depth and someone, who came into possession of a 640x360, PNG, 24-bit depth photo looking like the original, cannot attach that photo as proof of ownership.
There is only one original, there are no two originals - only more or less look-alikes, which can be obtained in various legal and illegal ways.
It begs the question of determining the authenticity of an image/photo. There is no definitive answer to this question, but there are two procedures that are very close to the definitive:
Before anyone can sue you, there must be proof that you have been contacted properly and on time and that you have been duly informed of everything.
That's why they so persistently insist that you reply to their emails and open the links therein contained, so they can record your activities and your exact location, among other things.
- First, the alleged owner must provide evidence of when, how and where the photograph was taken, along with the date it was published as such. The question of its registration date is also to be raised. If it turns out that the application was submitted shortly before or after PicRights or Higbee & Associates contacted you, it is reasonable to believe that they first saw the picture on your website and then went on registering it, which automatically disables them to trigger the possibility to receive compensation from you.
- The second is related to the presence of a digital watermark in the claimed images.
The watermark data is physically embedded in the file forming an integral part of the whole.
On the one hand, digital watermarks help us determine the authenticity of digital images being sold, bought, or reviewed. On the other hand, they provide copyright protection for intellectual property in a digital world and give users access to publicly available information about the copyrighted work.
Watermarking is not mandatory, but if a watermark cannot be detected, there can be no trustworthy copyright protection or file recognition procedure.
What you should do
We will not advise you to either reply to or ignore PicRights' letters (we will certainly not advise you to hire a lawyer for something you don't even know if it's legally grounded), but if anyone insists to respond, we advise you to ask them the following questions:
1. Do they have authentic originals of the claimed images/photos?
2. Do they have evidence of the origin of these photographs (who made them, when they were made, how they were made, on what occasions they were made etc.)?
3. Has the registration been made? If it has, when (exactly) has it been made and in which countries?
4. Do the photographs have built-in watermarks and what technique can be used to determine their existence?
Simply put, providing no valid evidence and demanding that the money be paid out immediately and unconditionally can result in filing a complaint with the Internet Crime Complaint Center.
Filing a class action against the party caught in doctoring evidence and extorting money is also an option.
On the other hand, if valid evidence is provided and presented to the public by the party seeking compensation, it is clear that such an issue must be addressed properly and taken seriously.
If your experience is similar to this, please contact us or leave a comment.
* We are not attorneys and the above is not legal advice. If you seek legal advice, consult a competent, licensed attorney in your area.