What to Do When You Get a Letter From a Copyright Troll

Sep 14, 2022 | Business Law

What to Do When You Get a Letter From a Copyright Troll

We thought it might make sense to take a minute and talk about the phenomenon knowns as “copyright trolls.”  Persons or companies looking for copyright infringement, sometimes known as “copyright trolls,” can be an unexpected and expensive problem.

Similar to what has happened with patent trolls, the age of social media and easy image sharing has given rise to liberal use of material that may be covered by a copyright. Hence, the copyright “troll” who makes a living chasing down the use of copyrighted material on behalf of the copyright owner. Instead of suing you for allegedly infringing upon a patent, a copyright troll will claim you infringed on the owner’s copyright. Their claims may or may not have merit. One man’s “troll” is another man’s defender of intellectual property. Consequently, for the balance of this article, we will stop referring to them as “trolls” and refer to them as “copyright enforcers,” a less pejorative term. 

Whether or not a claim has merit, the cost of defending a suit can be significant. If the owner of a work has a registered copyright and if the use in question occurred after the copyright was registered, the claim could have merit no matter how seemingly harmless or de minimis the use. Under the US Copyright Act, registered holders of copyrights may be entitled to statutory damages ranging from $750 to $30,000 per copyrighted work. If infringement is found to be “willful,” a court could impose a maximum penalty of $130,000. Not surprisingly, many business owners are motivated to settle these claims, often at a level that is closer to the defense cost (the “nuisance value”) of the claim.  

In this article, we cover some of the basics. 

What Is Copyright Trolling?

A copyright enforcer is often an agent of a copyright holder, which may be a company that holds a portfolio of intellectual property. A copyright enforcer’s motivation usually is not to prevent infringement, but to collect money from infringers who may be unwittingly using something they did not know was protected. In other words, if you settle the claim and pay for a license to use the work, you should be able to keep using it. Copyright enforcers generally do not discriminate as to industry (they don’t care if you are a not-for-profit). Even the brief use of copyrighted material as part of a larger work may be considered an infringing use. 

A common scenario is where a copyright enforcer uses a reverse image search to find a business that is using a copyrighted image without permission on their website. The copyright enforcer then contacts the business demanding that it either prove that it has the permission to use the material or enter into a retroactive license/settlement agreement. Although the “suggested” license fee may be far above the actual value of the image to anyone, many business owners simply pay a settlement amount to avoid litigation.

Steps to Protect Against Copyright Trolls

Be proactive. Companies should review their website and social media accounts to determine if they are currently using any copyrighted materials without the proper permissions or license. If a website has been created by a web designer, confirm with that designer that he/she/it only uses material for which they have purchased a license. You can check an image’s copyright in a variety of ways. Sometimes, an image will simply have a © symbol present below the image, indicating the image has been copyrighted. Checking to see if an image is protected is one of the most basic ways you can protect yourself.

Other ways to check for a copyright include:

  • Look for an image credit or creator contact;
  • Check for a watermark;
  • View image metadata;
  • Try a reverse image search; or
  • Check the U.S. Copyright Office database.

If you are currently using copyrighted material without a license, or if you have doubts about whether an image is copyrighted, promptly remove it from your website/social media. 

Consider adopting internal policies and procedures governing content on your website/social media to ensure that no infringement will take place in the future. These policies should be revisited periodically. Further, if you need an image for your website or marketing materials, many vendors, such as stock image sites, charge a reasonable fee for the art you license from them. As noted above, it may be significantly cheaper to purchase a license upfront instead of entering into an expensive settlement agreement later. A few hundred dollars can buy you quality images with no copyright infringement.

Enforcement of copyrights is a business. Even if it is obvious that your use of the image was unintentional or seemingly harmless, once a copyright enforcer appears, a problem exists.  They may or may not follow through with a threatened suit. If they do commence an action, your cost of settlement will be higher because they will have invested in the action. The alternative, of course, is to show up in court and fight it. However, that may not be convenient, depending on the venue where the enforcer filed the suit. Recently, we have seen Canadian copyright trolls representing U.S. clients and threatening U.S. persons with an enforcement action in a Canadian court. Obviously, for a U.S. person to defend a lawsuit in Canada would be “inconvenient.”

The most important thing you can do if you receive a letter from a copyright enforcer is to contact a lawyer. Among other reasons, the claim may not be legitimate or there could be good defenses. You will be more credible having a lawyer respond to the claim. Among other possibilities, the work may not really be protected or your use of the work may constitute “fair use” or have another valid defense. The concept of “fair use” may or not be available as a defense. Briefly, the fair use doctrine permits an individual to use a copyrighted work without permission of the holder depending upon: (a) the purpose and character of the infringing use; (b) the nature of the copyrighted work; (c) how much of the copyrighted work was used; and (d) whether the alleged infringing use will adversely affect the market or value of the work. To illustrate, a book review including a brief excerpt of the book in question will likely be protected by fair use. However, removing the watermark from a stock image and uploading it to your business’s social media account will not be considered fair use.   

This article should not be considered legal advice. Every situation poses unique facts and considerations. Whether you turn to us or someone else, consult a lawyer if you have a copyright enforcement matter.