So You received a copyright infringement letter – now what?
You get home and in your mail is a letter, typically from a law firm – accusing you of infringing some obscure copyrighted image you posted on a blog, website or other online location – often one you posted many years before. It asks for a large payment (at least to you) – often several thousand dollars – to remedy the past alleged infringement. Many times the law firm sending the letter is a one trick pony – this is all they do – that is to say, they literally make money by threatening (and suing) small alleged infringers. If the law firm is a real firm – that is to say, they do other things and are enforcing rights of a smaller client as an example, then you probably should take it more seriously.
These copyright holders are often referred to as “copyright trolls” – in reference to their modus operandi of putting copyrighted material on the web – often easy to download, with hidden or hard to find license terms, and then scouring the web and sending these letters, in the hopes that a number of recipients just pay up – because it’s too expensive to hire lawyers. Done incorrectly by the troll . . . and they can go to jail. However the trolls often have enough evidence that the claim appears facially valid – and coupled with the possibility of a lawsuit or losing, and the high cost of lawyers – probably a lot of people just pay. What should you do?
One option of course is do nothing and ignore it . . . and while in many cases the copyright holder might never actually sue you – there is a risk that they do sue you – and often that suit might be in a remote court. At that point it will probably cost a lot of money to defend it, or settle. Copyright cases must be brought only in federal court. So step 1 is to check PACER, and see how “litigious” the plaintiff is. If the plaintiff actually follows through and sues, it is obviously more risky to do nothing. We also recommend internet searching the plaintiff and the lawyer. Often you may find others who have won, or otherwise successfully defended against them – or worse, you might discover they are “Prenda like” (see the link above) and then you would definitely consider rejecting their offer or reporting them to the authorities for extortion.
Step 2 is to investigate what you did, when you did it, and where you did it. We have handled many of these cases. A common statement is something to the effect that “I hired a web developer that handled this” – and more rarely “they got the images and told me they were free.” Just because something is posted on the internet does not make it free. Just because you had a web developer do it for you does not exonerate you. Even the free sites, like Pixabay, have license terms. Some allow unrestricted commercial use, some do not, or require attribution. If a third party did this, you should review your contract with the developer, and see if they represented that they would create an infringement free website. You might have an indemnification right – in which case you need to make a claim against the developer. If you personally did this, you should see if you can track back to where you copied the image from. Some sites, particularly social media sites, have very permissive use rights for people on their platform – though often the original image is copied by another user from somewhere else and posted without permission of the owner of the copyright. You also need to determine if you just linked to the content, or whether you actually copied it and reposted it. In short, you need to determine if in fact you are responsible for the image or other content that is claimed to be an infringement. If you copied the image and did not modify it, you need to review the meta data in the image. Meta data, a portion of which is also referred to as copyright management information or CMI, can be attached to an image to note the author, where to obtain permission, the web site of where the image is available from, and other information. In most cases, it is a violation of US law to modify any CMI in an image.
Step 3 is, if you are a business, to review your insurance policies. In most cases copyright infringement is not within coverage. However, infringements that are contained in advertising can be, and if you had special insurance, known as media liability1, the policy may cover it. Note that a business is not a formal construct – if you were operating as a sole proprietor and purchased insurance, you should check the policy. You may also have purchased “umbrella” personal coverage that might provide insurance coverage.
Step 4 is to determine if in fact you are infringing, and if so, whether you have a defense.
In determining if you are infringing and if you might have a defense, some of the factors are:
- How long ago did this occur? Was it continuing? If the initial act occurred more than 3 years ago and the infringement is not a continuing infringement, the statute of limitations may apply and bar the claim.
- How was the image used – thumbnail? Embedded link (an image tag that references another server), full resolution or lesser resolution? In some cases some uses of images like thumbnails are less likely to infringe than full resolution copies.
- Did the image have a copyright notice on it? (please note, such notice could be contained in meta data/CMI and may not be visible)
- Did you try and remove any CMI?
- Was the image used in connection with a recent news event, relevant to that event, and associated with reporting on such event?
- Was the image posted on social media and is that where it came from (some social media sites have broad licenses to re-use those images by other users – at least within those platforms)
- Did the site generate any revenue of any kind (including 3rd party advertising?)
- Was the image used in more than one location, in emails, text messages, or posted on other sites? Each such use might be a separate infringement.
- If the content is a video and the claim is related to an image in the video (and not the video itself), how long was the image viewable and how prominent was the image?
- Did the copyright holder provide evidence of registration? A copyright holder in the US cannot sue in court without an actual registration certificate (although they can sue inside of the copyright office, and simultaneously file an application)
- If evidence was provided, are there any defects in the registration? Often, the registration is a “group registration” but in fact did not qualify – in which case the registration would be invalid. Group registrations are complex and often authors file them as group registrations but the images are not grouped correctly which can result in a defective registration.
- Did the copyright holder typically license the image? How (for example, alone, or solely in a group of other images)? What was a typical license fee for the image/group?
- Did you make any effort to try and license the image, investigate etc? Did you get legal advice/clearance?
Some notes about common misperceptions. The first is that many people immediately think they have a fair use right to use the content. Fair use is a somewhat limited concept in most cases outside of real news reporting. Every piece of content is not news. For example, where you ate today and what the food looked like is not news in the typical fair use sense. If you grab an image that is copyrighted and include it in your foodie blog, that is not normally going to be a fair use just because you think it is news. However, if the blog is not commercial – in the sense of the blog does not earn you any money – either directly or indirectly, such as from advertising, then that is factor in fair use, though not dispositive. The second is that many people’s immediate reaction is – well only like 50 people saw the image, or “only my family saw the image” or similar. Copyright law does not turn on the external number of views. An infringement occurs if you exercise any exclusive right in the copyright, regardless of whether even one person saw it. Having said the above, to be sure, fair use is a real legal concept and there are cases in which the unlicensed use of a copyright is permitted under that doctrine.
At this point then, if you have determined there might be an infringement, the question is how to resolve the issue. Even if you feel like you were making a fair use, just the elimination of risk can have some value. So then you need to determine – what can a copyright holder recover in damages?
In the US, if the registration was filed within 90 days of publication, or before the infringement occurred, the copyright holder can recover statutory damages and attorneys’ fees. Those statutory damages range from $750 to $30,000, however, criminal infringement can carry a damage award of $150,000 per infringement. Having noted that, however “In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.” This is known as an “innocent infringer.” To be an innocent infringer, however, the work needs to have omitted a copyright notice. If you see a work that has a copyright notice on it (and again, that can be contained in meta data), and you infringe, you cannot be an innocent infringer.
One note about “per infringement” – an infringement is a single exercise of an exclusive right – again, without regard to how many people see the work. So, for example, the posting of an image on a website is a single act of infringement – whether 1 person or a million saw it. However, then embedding it in an email . . . is a separate instance of infringement.
Step 5 is now to determine whether to try and resolve the claim yourself, ignore it, or hire a lawyer to resolve it. A few notes on what we have seen:
1. A fair number of letters we see omit a copy of the registration certificate, or any explanation of the claim of infringement. We would normally never resolve such a claim without seeing the registration certificate and verifying at least to some extent, that the registration is valid.
2. The dollar amount requested is often very bizarre. For example, $3,568. How is that determined? The letters often make no explanation. In our view, the number should be an even number, most typically based on $200, or $750, unless some evidence of bad faith infringement is shown.
3. The release included or provided if you do pay is often woefully inadequate. For example, it often is related to a single example. If a client pays, then it should be released for all uses of any kind in any media through the date of payment. The releases often include other notoriously oppressive language, like arbitration clauses, weird venue clauses in other states, and a variety of other terms that are oppressive and unfair, like future liquidated damages clauses.
While we have helped many of our regular business clients with these issues – it can be tough to help a “one off” personal infringement – as our fees rather quickly approach the amount sought by the copyright troll.
And a final note – if things get very bad and you get sued – HIRE A LAWYER (not us, as we generally restrict our litigation to inside the USPTO). You may have rights under the AntiSLAPP legislation applicable in many states. The copyright law generally gives the prevailing party a right to recover their fees – and in some cases in actual court, you can make a special type of offer, and if the plaintiff ultimately wins, but less or equal to your offer, then they have to pay your fees.