Copyright Trolls Are Striking the Unsuspecting Through Their Web Sites!
Yes, it is possible. You download an image from the internet without anyone asking for payment. You use that image on your web site. A few months later, you receive the letter in the mail, or by Federal Express, saying you have violated somebody's copyright and that you owe anywhere from $1000 to tens of thousands of dollars. You immediately take the image off your web site. You answer the letter with apologies. And you think that is the end of it.
Maybe not. In fact, probably not. The complaining party may still come after you for the money.
If you ignore the continuing demands, the odds are very high that you will be sued in Federal Court.
Let's back up for a minute. The real issue here is copyright law, which says, among other things, that the creator of a photo, the photographer, has the right to control using, copying, displaying, and/or changing that photograph, along with other rights. Those rights spring into being at the moment the photograph is taken. The photographer doesn't have to do anything, to register anything. The existence of copyright rights is automatic at the time the photograph is taken. So any time you use someone else's photograph, you put yourself at risk of being sued. And the law says that the fact that you didn't know you were infringing does not save you. It does allow the court to reduce the amount of damages. But it doesn't save you from the costs of the attorney fees to defend yourself, which can be much more than the damages which the court will award. In addition, the courts are allowed to order you to pay the attorney fees incurred by your opponent. All those attorney fees can add up to real money.
Any time you use a photo or other graphic on a web site, you are posting that image or graphic for the world to see.
Some people think that they can put an image on their web site and not concern themselves with copyright. They think that nobody will notice or care, or perhaps their web site does not get that much traffic, so it isn't important.
Well, there are two kinds of businesses who control rights to copyrighted photographs. There are those that just want their rights respected. Those owners will send you a letter demanding you cease using the image. You take the image off your web site and apologize. That solves the problem.
Well, that is OLD SCHOOL, and is now the exception!
The second kind of copyright owner is a small number of businesses who design their business model around the concept of catching unsuspecting users of copyrighted photographs, and then charging them excessive fees for those alleged infringing uses. They hope you will use their images because that is how they make their profits. They may be setting up intentional traps to get you to use their images, and then catch you. They certainly don't police the availability of their images on the internet, so it is easy for you to find and use one of their images without realizing they have any rights. Once they catch you using one of their images, they spring into action to collect money.
Call it a trap. I've heard it called legalized extortion. Many people call it immoral. But whatever word or words you use to describe it, these operators are smart and efficient. They ostensibly operate within the scope of the law. Some think not. Others think just barely. But wherever you are on that issue, they are making life miserable for thousands of unsuspecting web site owners.
How Does An Internet Copyright Troll Find Me?
The way the process works is that a company which sets up a business unit to collect fees from unsuspecting infringers has software which continuously scans the internet for web pages which contain photographs contained in their database. So if your web site has an offending photograph, the odds are very good that you will be caught.
The problem, from the user's perspective, is that most users who are caught in this trap have no idea they are using copyrighted photos, and have no intention of infringing anyone's rights. In fact, they may have downloaded the image from a free site, from a site which says the download is free, or from a web page which says nothing about copyright. The web page may say that there may be copyright rights, but gives you no hint about how to find out who owns the copyright rights.
Once you are "discovered", they send you a letter demanding that you cease the use, and naming a demanded amount of payment. Typical demand amount is at least $1000.
What Happens After I get a Letter From a Copyright Troll?
If you pay the amount demanded, that will probably be the end of the matter, though you need to be sure to get the proper releases. For that reason, I highly recommend you get legal advice, at least regarding the releases.
Some of these companies will negotiate a reduced payment. Others will not. I have not heard of any case where they simply went away. There are instances where they actually sued if the user of the photo didn't pay. There may be a threshold amount below which they will not sue. I have only anecdotal evidence in that regard. For sure, you run a high risk of being sued. If you defend yourself, you will spend at least $5000 in legal fees, likely much more than that. If you don't defend yourself, your opponent will get a default judgment, which means the court will order you to pay money to your opponent. The court will also likely order you to pay their attorney fees.
If you do nothing, depending who your opponent is, you might receive additional letters, both from the complaining company, then from a collection agency, before you get sued.
What Should I do If I Receive a Demand Letter From a Copyright Troll?
Probably your best course of action is to refer the problem to an experienced Intellectual Property Attorney. He/she will know the bounds of your legal rights under copyright law. He/she can then try to negotiate a lower amount your opponent will agree to. The attorney should also obtain the proper releases from the copyright owner once agreement is reached.
You can try to negotiate with your opponent yourself. But that typically doesn't work well unless you are a skilled negotiator, and know the limits of the copyright rights under the law.
What you don't want to do is to ignore the demand. That will get you sued, which is the most costly option you have.
The good news is that most of these copyright owners do not want to go to court, as that can be costly, and there are risks on both sides. A negotiated settlement is in the best interest of both parties, and the attorneys for most copyright clients know that. So there typically is room to negotiate the settlement amount down.
10 Tips How a Web Site Owner Can Avoid The Copyright Trolls!
1. Above all, get quality legal advice from your Intellectual Property Law Attorney any time you are thinking of using any photographs or other graphic materials.
2. Ask yourself whether you really need any photos on your web site. Can you use hand-drawn illustrations or drawings? Can you use diagrams or graphs you make yourself? Can you use cartoons which you create yourself? Can you take photos, yourself?
3. Instead of looking for the exactly perfect photo for the site/page you have designed, look at the photos that you know you have rights to, and find a way to make those photos work in your web site design. This may mean some additional thinking regarding page or site design, instead of focusing only on photo selection.
4. If you hire a web designer, insist on using a well-written contract. Get your Intellectual Property Attorney involved early. Such a contract requires the web designer to defend you, and to indemnify you, against any allegations of copyright misuse, and provides other protections that will limit the possibility that the web designer can misuse copyrighted material.
5. Hire your own photographer. Get your Intellectual Property Attorney involved early, before the photographer takes any photos for you, to make sure you have the right to use the photos which are taken for you. You cannot assume that just because you paid for the photographs, you can use them as you please.
6. Hire your own photo editors to do any editing, again under suitable contracts.
7. Get public domain images from government web sites. Make sure you follow ownership rules carefully, as some government web sites have very specific rules about how the photos can be used.
8. Maintain tight control on the procedures and assets your web site designer is allowed to use. Never, never allow them to use, in building your web site, any assets, products, or services received from outside the US. Many countries don't strictly enforce copyright like in the US, so any work done outside the US is done in a much different legal environment which does not even recognize the risk to a US user. Too often, they "just don't get it".
9. Don't assume that, just because you can download an image from the internet without someone asking for payment, there is no copyright cost involved.
10. Finally, if you are the person responsible for the money, you need to personally double check ownership of all images before they are posted to your web site.
10 Tips How a Web Site Designer Can Avoid Copyright Trolls!
1. With a few modifications, the recommendations are the same as for the Web Site Owner. However, as the Web Site Designer, you bear a greater portion of the burden of getting the job done rights, because a savvy owner will hold you responsible for any mistakes you make regarding copyright misuse.
2. Above all, get quality legal advice from your Intellectual Property Law Attorney. The work you do involves a number of areas of Intellectual Property law that carry significant legal risks. Making sure you are legally correct has a cost, but makes good business sense when you consider the cost of corrective action if you get caught violating the law. And the internet is making the "catching" easier all the time. If you routinely use photos or other graphics, you can be sure these legal issues will come up from time to time, and at the most inconvenient times.
3. Get a good relationship with your Intellectual Property Law Attorney so you can call him/her any time with quick questions. If you are concerned about cost, negotiate a flat monthly fee that allows you to call any time with quick questions at a known flat monthly cost. More complicated matters will likely have to be paid for at the attorney's hourly rate. Your attorney will love the predictable income, and may be willing to give you a break on cost. Then, you build the cost of that safety net into your pricing, and advertise your safety net as a value-added feature of your services.
4. Ask yourself whether the web site you are building, or re-building, requires use of any photos. Can you use hand-drawn illustrations or drawings? Can you use diagrams or graphs you make in-house? Can you use cartoons which you create in-house? Can you take photos in-house?
5. Insist on using a well-written contract, crafted by your Intellectual Property Attorney. Get your Intellectual Property Attorney involved early so you can use that contract with every customer. If a prospective customer won't sign such a contract after having their attorney review it, and talk with your attorney, you are better off not working for that customer, even though it means loss of some revenue.
6. Hire your own photographer. Again, get your Intellectual Property Attorney involved early, before the photographer takes any photos for you, to make sure you have the right to use the photos which are taken for you. Copyright law is very specific on this. Contract first, before any photos, or other art work, is created for you. You cannot assume that just because you paid for the photographs or other art work, you can use them as you please.
7. Hire your own photo editors to do any editing, again under suitable contracts.
8. Get public domain images from government web sites. Make sure you follow ownership rules carefully, as some government web sites have very specific rules about how the photos can be used.
9. Don't assume that, just because you can download an image from the internet without someone asking for payment, there is no copyright cost involved.
10. Finally, if you are the person responsible for the money, you or your attorney need to personally double check ownership of all images before you release them to a web site, or to a customer.
11. Bonus Tip. Don't ever farm out any work outside the US. Other countries are not so careful regarding copyright rights, and so the risk with working coming from outside the US is greatly increased. And the fact that something happened outside the US does not save you when you get caught with actual copyright mis-use. While your supplier may be equally at fault, your prospects of collecting from them are very small unless they badly need your good will.
Is There Hope for Relief From Copyright Trolls?
I don't see any on the horizon. The existing practices of the copyright trolls appear to be legitimate, though just barely. And it is possible that a good defense can defeat particular cases. But that will depend on the particulars of the specific case. And it will be costly, a money loser for both sides. The lawyers will be the only winners in those cases.
The only way I see relief is if Congress changes the copyright law to provide a forgiveness clause in the law for innocent infringers. But that would reduce the rights of the photographer. Restated, this is simply a matter of public policy. Should we feel sorry for, and forgive, those who can prove they unintentionally infringed the copyright? Or should we vigorously support the "starving artist" photographer? This is a public policy, political, judgment call. I don't see anything that says Congress will change the law this way. On the other hand, if enough people complain to their congressmen, such as a grass roots effort, if someone organizes a lobbying group, that could change. I don't see that because lobbying takes a lot of money and the targets of these trolls seem to be individuals and small businesses, who typically don’t have that kind of money.
WARNING: The information presented here is not intended to be legal advice. It is offered for the purpose of informing, and not advising as to proper action to be taken in any particular situation. Intellectual Property Law generally includes Patents, Trademarks, Copyrights, trade secrets, trade dress, licensing, unfair trade practice, and the like. This is a specialty area of the law. Each situation is different. There are allowances, and exceptions to the general rules. If you have a specific concern regarding any area of Intellectual Property law, you should consult an attorney who practices Intellectual Property law on a regular basis.