Copyright Trolls: Scary Letters, Real Risks, and Practical Defenses
Co-Author – Sarai Simpson, J.D. Candidate (not yet licensed to practice law)
In 2015, 360 ABQ, LLC, a real estate brokerage firm in Albuquerque, received a letter from a lawyer representing a photographer. The letter asserted that a photo of the Albuquerque skyline taken by the photographer had been reproduced on the ABQ website without permission. The letter went on to say that ABQ’s use of the image infringed on the photographer’s copyrights and demanded that ABQ pay $30,000 in fourteen days or face a federal lawsuit seeking $150,000. A draft complaint was attached to the letter. Pretty scary stuff.[1]
As it turns out, ABQ had used the image without permission, but it claimed that its employees found the image through a web search on a site not associated with the photographer. The image depicted on that site did not identify the photographer, and no copyright notice was present there. Therefore, ABQ assumed the image was available for use by anyone. ABQ was wrong.
Two things:
1) Copyright infringement is a strict liability infraction. Neither knowledge nor intent are requisite elements of the claim. ABQ was an infringer notwithstanding that it never intended that result.
2) That ABQ was in fact an infringer does not mean that it is necessarily liable for anything close to $30,000 (or exposed to a $150,000 judgment if sued). Indeed, the remedies actually available to the copyright owner in any given circumstance may be insufficient to support litigation of that claim.
What Is a “Copyright Troll”?
A copyright troll is a person, company, or law firm with a business model based on asserting infringement claims primarily to generate revenue by aggressively seeking settlements and threatening, but rarely actually initiating, litigation. They often overstate available remedies, both directly and by systematic misrepresentation of information that may be pertinent in some cases but not necessarily pertinent in the matter at hand.
Copyright trolling is not a recent phenomenon. Its roots go back as far as the 19th century, when Harry Wall, a British businessman, bought up public performance and dramatic rights to musical works – often from deceased or neglected composers – solely to threaten unauthorized local performers with lawsuits and extract cash settlements from them.
Today, the practice has evolved, as modern search technology equips these companies and law firms to easily find infringers to target and send demand letters seeking cash settlements. Unlike the demand asserted against ABQ, often the proposed settlement price is set low enough to discourage the target from seeking legal advice. The hope is that the target will simply pay the demand rather than push back on a claim that might not be economically viable for formal pursuit.
A copyright troll’s initial demand will likely state that you are using their or their client’s content and that there is no record of you having been granted permission or a license to do so. The demand will go on to presume your use is infringing and to list the entire (and imposing) list of generally available remedies, including some that may not be available in the matter at hand.
Ignoring the demand will not work – the troll will not go away unless and until they are convinced that they do not have a viable claim and that you know it.
Potential Defenses and Mitigating Factors that Might Work in Your Favor
- The claimant does not have an ownership interest sufficient to establish standing to assert the claim (see: Copyright Enforcement: If You Don't Have Standing You Might as Well Sit Down )
- The use you made qualifies as a fair use and thus is not an infringement of copyright
- The claim is now outside the statute of limitations
- The use complained of was initiated by one of your vendors (in which case the claim should be tendered to them)
- You may not have a license, but your vendor does
- The claim is covered by an insurance policy (general liability policies often provide coverage for “advertising injuries,” which are sometimes defined to include copyright infringement claims; in such case you should ask your insurer for a coverage/no coverage letter)
- The work is not the subject of a copyright registration (not a prerequisite for copyright ownership but necessary for access to certain remedies)
- If the work is registered, the registration was not timely
- If there is a registration, it is fatally defective for any one of a number of reasons
- If actual damages are the only available remedy, the demand is not factually supported or is in excess of provable actual damages
- The claimant has committed copyright misuse
Not Everyone Who Asserts a Copyright Infringement Claim Is a Troll
Some infringement claims are bona fide – they are generally matter-of-fact in tone, they don’t generally assume willfulness or intent, they include supporting information and documents, if they make a demand for statutory damages they do not automatically go to the top end of the available statutory range, and they don’t typically threaten litigation right out of the gate, but rather assume some reasonable cooperation toward reaching a business resolution. A letter like this, where there appears to be meaningful exposure, is probably a matter best handled by your general business lawyer.
Some claims that look to the untrained eye like infringement claims are actually claims for removal or falsification of Copyright Management Information (CMI). This is a distinctly different type of claim with different requirements and different remedies. Which is to say, it is a topic for another day.
For more information on proper licensing of third-party photographs, see:
What You Need to Know About Business Use of Third-Party Photos Part 1
What You Need to Know About Business Use of Third-Party Photos Part 2
[1] Harrington v. 360 ABQ, LLC, No. 1:22-cv-00063 (US DC NM, 2022)
