Photograph Copyright Trolls and You

NOTE: NOTHING IN THIS POST IS LEGAL ADVICE. THIS IS GENERAL INFORMATION FOR THE PURPOSES OF LEGAL EDUCATION.

From time to time, someone contacts me because they got a letter from a lawyer alleging that they put someone’s photograph on their website without permission and now they must pay a settlement fee or risk being sued. (I’ve even gotten one from an associate of the notorious Richard Liebowitz, which I consider a badge of honor.) They usually come from the US but I’ve seen them from France and Germany as well.

Here’s the thing: while they can and do make mistakes (and there are a few literal con artists out there doing this) by and large they usually did see the photo on your website. Maybe you thought it was in the public domain. Maybe you hired a web designer and the web designer just Googles their photo content. (Seen it. More than once.) And you probably didn’t get a license. Doesn’t make you a bad person, but technically, you’ve probably violated copyright law and infringed their copyright.

Now, to be clear: If you didn’t do it, or they’re lying, or they’ve got the wrong person, then you deal with that differently. You should get all the evidence together you can, and then either hire an attorney (HIGHLY RECOMMENDED) or write them a calm, clear, letter explaining why they’re wrong and bidding them good day. I said Good Day, Sir!

But assuming you did do it, well, don’t ignore them, or they may go to court and get a default judgment against you and you do not want to deal with that, trust me on this one. The problem must be addressed.

Here’s where the troll part comes in: they will claim they have a registered copyright, and are therefore entitled to statutory damages and attorney’s fees, and there will usually be some extremely scary numbers in there.

Those numbers are bunk.

However, like I said, if you let them go to court and get a default judgment, that bunk will be enforced by a judge, and again, you do not want to deal with that.

So the first thing you might want to think about doing is taking the photo down, assuming it’s still up. Don’t delete it: screenshot/backup the web page it’s on, make a note of the date, and then remove it from the live/public-facing page. Hang on to the original file for right now: now it’s evidence, and you want to keep it so you can establish what exactly you did.

Then you have a couple of options.

Option one, which is MUCH PREFERRED, is to hire an attorney who has dealt with this kind of thing before. Like, say, your humble blogger. But if not me, then somebody. These people are literally part of an industry, a copyright infringement monetization industry, and they have lawyers who do this all the time (often badly, but still.) Normal people don’t do well trying to lawyer. After you hire a lawyer, listen to them and do what they say. They can often negotiate a very small settlement by making clear that you have counsel and won’t be pushed into nonsense.

Option two is to tell them you can’t/won’t pay. This rarely works. They don’t care. They will just sue you and get a default and sell it to a collections agency. And then you will be hounded. Forever.

Option three is to try to negotiate a settlement. I can’t really tell you how much to offer because the variables are infinite. However, one standard approach is to try to find a similar photo on a stock website (or better yet the photographer’s own website) find out what the license would have cost, and then offer them that plus something for their legal fees. If you’re comfortable haggling, then haggle. If you’re not, reconsider Option One.

I feel like this post has a lot less actionable information than some I have made, and for that I apologize, but like I said: the variables are infinite. So, takeaways:

  1. NEVER IGNORE THESE LETTERS.
  2. You really should think about hiring a lawyer.
  3. The numbers are bunk, offer a reasonable settlement.

As always, questions are welcome. Thanks for reading!

Marc

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