In 2021, we published a guide on how to properly deal with a PicRights copyright demand letter. Since then, Heitner Legal has handled thousands of these matters. While the core of PicRights’ business remains the same, their tactics and the legal landscape have evolved.
If you’ve received a demand from PicRights on behalf of entities like Agence France-Presse (AFP), the Associated Press (AP), Reuters, or CartoonStock, feel free to contact us. In the meantime, here is what you need to know now to protect your business and reach a fair resolution.
1. Don’t Panic—But Take Immediate Action
The standard PicRights letter often demands thousands of dollars and sets a strict 14-day deadline. While these letters can be intimidating, the first step is always the same: remove the image immediately.
Pro Tip: Removing the image from the visible page isn’t always enough. PicRights agents often check the direct image path/URL on your server. Ensure the file is completely deleted from your content management system (CMS) and your server’s cache is cleared to avoid follow-up demands.
2. The Power of Registration (or Lack Thereof)
One of the most critical factors in determining your risk is whether the image is registered with the U.S. Copyright Office. Under U.S. law, a copyright owner must have a registration before they can file a lawsuit.
In many cases, PicRights pursues claims for images that are unregistered. If an image is not registered:
- No Statutory Damages: They cannot seek the heavy statutory damages that often range from $750 to $30,000+ per work.
- Actual Damages Only: Their recovery is limited to “actual damages,” typically defined as the fair market licensing fee they would have received for that specific use.
- Limited Litigation Risk: Suing for actual damages on a single image is often not cost-effective for the copyright holder, giving you significant leverage in settlement negotiations.
3. Challenging the Value of the Demand
PicRights’ initial demands are frequently based on “premium” or commercial rates, even if your use was non-commercial, educational, or on a secondary page with low traffic.
We have successfully negotiated lower settlements by highlighting factors such as:
- Innocent Intent: Demonstrating the use was inadvertent (e.g., believing the image was your own or from a free-use site).
- Limited Resolution: If you used a low-resolution or thumbnail version of the image, its market value is significantly lower.
- Historical Usage: If the infringement occurred many years ago (some demands go back 15+ years), the market value may have diminished, and enforcement delays can be a point of negotiation.
4. The Escalation to Higbee & Associates
If a matter isn’t resolved with PicRights, it is often escalated to the law firm Higbee & Associates. While this is a step toward litigation, it does not mean a lawsuit is inevitable. Higbee will typically make their own attempt to resolve the matter before filing. We continue to negotiate aggressively at this stage, often reaching settlements for significantly less than the original PicRights demand.
5. Settlement is About Releases
If you decide to settle, the most important part of the process is securing a comprehensive release. We ensure that any settlement agreement includes language that:
- Releases all claims: Protects you from future lawsuits regarding that specific image.
- No admission of guilt: Ensures the payment is viewed as a settlement, not an admission of infringement.
- Warranty of ownership: Requires the claimant to warrant that they actually own or represent the rights holder for the image.
Why Hire Heitner Legal?
Navigating copyright law alone can be a “game” that PicRights knows how to play very well. We have handled thousands of these claims and know how to call their bluff on unregistered images, challenge inflated damage calculations, and secure the lowest possible settlement for our clients.
If you’ve received a PicRights letter, don’t negotiate in the dark. Contact Heitner Legal today for a review of your claim.