What to do with a Copyright Infringement Letter

The Risky Business of Copying Images from the Internet

Today I want to talk about copyright infringement, and in particular, copyright infringement that results from cutting and pasting images from the Internet and using them on your website, in your blogs, your videos, or your marketing materials.

Then I will discuss what to do when you get a letter demanding money for using images.

How do you get caught?

This last week, two companies received letters threatening them with litigation unless they paid money. The owners of the companies wanted to know what to do.

In one letter the damages were less than a thousand dollars; and in the other, less than $500. Both owners thought it was a scam.  But unfortunately, these are typically not scams. There are businesses who protect other’s copyrights. They troll the internet for potential infringers. Here’s a representative list:

There are many others, and what these companies do is search the Internet 24/7 to find anyone using images in their library. If they find you, they send you a threatening letter demanding money damages. I’ve seen them as high as $50,000, and as low as $400; it depends on the company and the image that’s used.

So, to avoid paying damages, don’t cut and paste off the Internet without permission. It’s copyright infringement. You’re not entitled to use these images without the permission of the author.

You may get a letter even though you’ve gotten permission. These companies don’t check that. They just send letters if you are using one of their images. I will address what you should do later.

Never Use Images without permission.

Some of these authors put their images up on free websites, like CreativeCommons.org. If you abide by their terms, you can use these images without infringing their copyright.  One of the typical requirements is attribution. Attribution is giving credit to the author who created the image. If you don’t follow their terms, then you’re violating the license agreement and infringing their copyright. The other option is to use paid sites. I use Shutterstock for all of my images.

What do you do if you get a letter?

Now, whether you use a free site or a paid site, I recommend you keep a folder on your computer and drop every one of those images, and the license terms, into that folder so that you can prove you had a license to use. All the demand letters that I have seen start with, “If you have a license to use these images, please provide us the license.” If you have the license and followed its terms, they will go away.

The second thing that I would recommend is to ask for proof of their copyright registration and the date of registration.  That’s required if they’re claiming infringement.  To bring a lawsuit, you must have a registered copyright. And more importantly, to argue that you’re entitled to statutory damages, you have to register the copyright within a certain period of time. See my article and video on timing.

Statutory damages are $750 to $30,000, per infringement, up to $150,000 for willful infringement at the discretion of the court. Statutory damages are provided because proving actual damages is difficult. But to be eligible for statutory damages, a timely filed Copyright Registration is required.

Copyright law also provides for legal fees. If the author must bring a lawsuit, the court can, at its discretion, order the infringer (you) to pay the copyright owner’s legal fees. Obviously, this is another deterrent to copyright infringement. As you consider what to do with a threatening letter, you must keep this potential in mind.

Most of these businesses are big volume business looking for a quick payday. If they have to work answering your legitimate questions, they may give up and go away. That’s been my experience. I have handled several of these cases and not paid damages. However, Caution, your results may vary.

I start by asking them to provide a copy of the copyright registration and the date of registration. The second thing I ask for is proof of ownership. Do they, or the author they’re representing, really own the image? I’ve had a couple of situations where that was not clear, and I kept asking repeatedly for proof of ownership.

In one case two different companies were claiming to own the same cartoon. In that case, I didn’t know who the owner was, I didn’t know who to pay, and that’s a legitimate question to ask. The other was a photograph of the Dome of the Rock in Jerusalem. The exact same photograph was claimed to be owned by two different photographers.

I found the dual ownership by using Google Image search. I walk through the steps on this video. I also use it to find where the image is available, for example on a free site.

If it’s available on a free site, you shouldn’t have to be pay to use it. Responding to the letter that it is on a free site will usually resolve the issue.

The Takeaway

In many of these situations, if you ask good valid questions and make them work a little bit to prove that they own the copyright and it’s not available for free, they will go away.

But I want to make it clear, cutting and pasting off the Internet is copyright infringement. And these image producers are entitled to be compensated for their images.

So, don’t cut and paste.  Either get your images from a free site or subscribe to a site like Shutterstock or Getty Images. Keep a file of all the images and their licenses that you’re using, so if you do get a demand letter, you can quickly resolve it by showing that you’re licensed.

If you get the demand letter, ask a few questions along the way to make sure it’s not a scam, that they have the proper copyright registrations, and that they actually own it.  Do a little bit of checking on your own as to its availability on free sites.

Bill Honaker, The IP Guy

About the Author:

Bill Honaker, “The IP Guy” is a former USPTO Examiner, a partner with Dickinson-Wright, and author of the forthcoming book, Invisible Assets – How to Maximize the Hidden Value in Your Business. To download a sample chapter, click here.

To get answers to your questions click here to schedule a time to talk, email Bill@IPGuy.com, or give him a call at 248-318-7015.

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