SO YOU RECEIVED a letter demanding that you pay thousands of dollars for the unlicensed use of a photograph on your website or social media. The amount demanded is significantly more than you think the photograph is worth, is perhaps more than you can afford, and certainly is more than you would have paid to license the photograph in the first place. But you also want to resolve the claimed copyright infringement to avoid a potential lawsuit in federal court. To assist you in negotiating a lower settlement payment (or perhaps disposing of the claim without any payment whatsoever), here are some tips in responding to this type of “copyright troll” claim.
1. Ask for proof that the person claiming damages owns the copyright in the photograph. Simply because someone says that they own the copyright in the photograph does not mean that they do own the relevant rights. If the claimed owner is a corporate entity, ask for a copy of the “work made for hire” agreement or assignment agreement between the entity and the photographer, because absent such a signed agreement (or the photographer being an employee of the entity), the owner of the copyright typically would be the photographer.
2. Ask for proof that the person sending the letter has authority from the copyright owner to pursue, and ultimately settle, the claim. If the letter came from a lawyer, it may be reasonable to assume that the lawyer does have such authority. But if the person sending the letter is not a lawyer (e.g., a “licensing compliance service”), ask for a notarized statement of authorization from the copyright owner.
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3. Ask for the relevant copyright certificate of registration. A copyright registration is required before the owner can file an infringement lawsuit. Also, based on the timing of the registration, the copyright owner may not recover certain types of damages in any lawsuit (e.g., attorney’s fees and/or “statutory damages”), and therefore damages may be limited to your direct profits from the use of the photograph, which in many instances will be low.
4. Ask for licensing history for the photograph at issue. Prior licensing fees for similar uses will reflect the actual fair market value of the photograph. The licensing history also is relevant to calculating how much a court might award in “statutory damages” if a lawsuit were filed and the owner is eligible for “statutory damages.”
5. Ask when, where and how they first learned of your use. Copyright claims have a three-year statute of limitations, starting from the date that the copyright owner knew or should have known of your use. If more than three years has elapsed since the owner learned that you posted the picture, threats of a lawsuit may be empty threats.
