Don’t Let Those Copyright Trolls Get Your Goat!
By Natalie A. Harris, Partner, Baron|Harris|Healey (Chicago, IL)[*]
Is this correspondence legitimate, or a scam?
If you own or operate a business with a website that includes photographs, you may be on the receiving end of demand letter from a copyright troll. A typical demand letter arrives via email directed to the owner or agent of a business. The sender is often a law firm specializing in high volume copyright infringement litigation on behalf of individual photographers or a company known as a “licensing and copyright agent” for photographer clients. The letter identifies the sender’s client, normally a photographer or media group that owns or licenses photographs. Then, the letter asserts that a copy of the client’s photograph(s) was identified on the website owned or operated by the letter recipient (you), and states that the sender is unable to find any record of a license for such use, which qualifies as copyright infringement. Finally, the letter invites the recipient to “resolve the matter outside of court” by paying a sum of money in exchange for a complete release of all liability associated with the recipient’s use of the image.
The formulaic style of the letter and demand for a quick settlement leads many recipients to assume it is a scam or trap, and ignore it. That is a mistake. Many copyright troll demand letters are legitimate, and many of the prominent senders will file suit if you ignore the letter. Some trolls start by filing suit, without providing defendants the benefit of a warning letter, because they have learned that service of a lawsuit generates more lucrative settlements than mere demand letters. So if you receive a demand letter first, consider yourself one of the “lucky” targets.
How does the copyright troll playbook work?
“Copyright troll” is a pejorative term used to describe lawyers and licensing agents whose business is based on generating a high volume of cases based on the identification of actual instances of copyright infringement on the internet. They extract substantial settlements from potential defendants who want to avoid the significant financial and legal consequences of a copyright infringement lawsuit. The practice is perfectly legal, but the “troll” moniker sticks because the system exploits the known cost and burden of litigation to generate settlements that often far exceed the license value of the images at issue.
The playbook works because there is a fundamental misunderstanding of United States copyright law among members of the general public. Many believe that if an image or video is published on the internet, or circulated on social media, it is available for use by anyone, without restriction. That is incorrect. Subject to some legal exceptions, the person or entity that creates an image (known as a “work” in copyright parlance) owns the copyright in that work. A copyright owner has an exclusive “bundle of rights” in the work, including the right to reproduce, create derivative works, distribute copies, publicly perform and publicly display. Copyright protection lasts a very long time. Depending on a variety of factors, a copyright in the work typically lasts for the life of the author plus 70 years, or several decades longer, if the work was created by an employee within the scope of their employment.
This means that unless you own the copyright in a work, or the owner assigned the rights to you in writing, you must have the express permission of the owner to use that work. This rule is subject to certain legal exceptions, including fair use, that are outside the scope of this piece. The legal term for such permission is a “license,” and licenses often cost money. Exploiting an owner’s exclusive rights in a work (e.g. publicly displaying the work) without a license constitutes infringement. There is “strict liability” for copyright infringement in the United States, meaning that it is not a defense to claim that you were not aware of the owner’s rights, or believed you had a license. The penalties for infringement under the United States Copyright Act can be harsh. Statutory damages can range from $750 to $30,000 per work infringed, and if an infringement is found to be willful, the court may increase the statutory damages up to $150,000 per work. In some cases a court may order the infringer to pay the copyright owner’s attorneys’ fees and court costs. This landscape provides copyright trolls significant leverage when they have identified an infringing use of a work.
What can you do if you get a letter from a copyright troll?
If you receive a demand letter from a copyright troll, you should not ignore it, or dismiss it as a scam, without consulting an attorney. If the claim referenced in the letter is legitimate, the matter is unlikely to just “go away,” and the longer you wait to address it, the more expensive resolution is likely to become. Here are some questions you should investigate in preparation for speaking with an attorney, that will be helpful in evaluating how best to respond to a copyright troll demand letter:
- Was the image published on a site you own or operate? When was it first published? Is it still there? If not, when was it taken down, why, and by whom?
- Can you demonstrate that you own the copyright in the image? Did you create it? Did the creator or owner assign the copyright interest in the image to you?
- Can you demonstrate that you have a license to use the image? If so, can you demonstrate that you have complied with the terms of that license (e.g. have you made proper attribution)?
While settling a copyright infringement claim with a copyright troll may feel frustrating, or seem like a waste of resources, it is often the most efficient way to put the matter behind you, and eliminate the risk and worry of a future lawsuit. However, in some instances, there may be strong defenses available that provide leverage to negotiate the amount of a settlement. In other instances, the claimant may have made a factual error regarding their purported claim. Seeking the advice of counsel familiar with the copyright troll playbook is the best way to prevent the trolls from getting your goat.
[*] The information provided here does not, and is not intended to, constitute legal advice, it is for general informational purposes only. Readers should contact an attorney to obtain advice with respect to any particular legal matter.
Natalie Harris is a Partner in the firm Barron | Harris | Healey
Natalie Harris counsels and defends clients in media including journalists, authors, artists, politicians, entrepreneurs, advertising agencies and brands who generate, publish, and broadcast content. Natalie performs prepublication review of creative, editorial and commercial content and provides compliance advice for sweepstakes, contests and other promotions. In the courtroom, Natalie defends defamation litigation, right of publicity claims, invasion of privacy, trademark and copyright infringement matters.