5/19/2023 0 Comments Www pixy ie![]() ![]() In short, there was no legal reason for my client to pay to license the image for this type of use. 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.” 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. 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. ![]() 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 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. “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. ![]() She was kind enough to take some time to review the claim and comment to me for this post: She admitted she’s never seen anything like this third-party click-through claim. 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. Pixsy again supplied the link to its online licensing payment portal. The image in question was posted on your client's twitter and the appropriate attribution was not given, hence an infringement has occurred.” “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. Refuting the claimĪs you can probably guess, Pixsy did not accept my explanation. 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. What they are claiming would break the internet if they are successful.” Internet marketing consultant John Webster said, “These are people looking for low-hanging fruit. However, having dealt with copyright issues before, I know they are relentless about pursuing collections even if the claim is absurd. Since the article with the picture in question originated from a third-party website, I believed the claim to be unfounded. My client initially suspected this letter might be spam, but upon talking with a colleague, it was suggested that I check it out. 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? To resolve the matter, Pixsy requested a payment of $750 for a “license” to the photo, to be paid through an online portal. That link led to a tweet my client shared from another source, which autogenerated the link preview picture in question. 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. 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. Pixsy sent its claim via an email to my client on July 31, 2019. As you can see, the image associated with the post automatically populates to the feed. The user is redirected to Facebook where they can share the post to the newsfeed, a story, or a group. Let’s say a user selects the option to share the post on Facebook. In the image below, there’s a post from my blog. (The images, because they’re embedded in blog posts, appear when articles are shared on Facebook, LinkedIn, Twitter, etc.) The most recent way to try to collect from small businesses comes in the form of citing copyright infringement on images generated in link previews on social media. 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.
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