Have you received a image infringement demand letter and unsure what your next steps are? Receiving a image infringement demand letter is extremely stressful.
We started PicDefense.io to help people just like you. We discuss general strategies for handling photo infringement letters.
This blog is not legal advice or a substitute for legal advice.
Typical Case Example
Many companies use third party marketing services to write their blog or produce content online on behalf of the company.
The marketing firm accidentally (or sometimes “willfully“) uses a photograph that they did not license from a commercial licensing photo company such as Getty images, Big Stock Photo, Fotolia, iStock, DepositPhotos, many many more.
The Demand Letter
Many months pass and the company receives a image infringement letter from PicRights, AP Associated Press, Reuters, Highbee & Associates, Agence-France-Presse, etc.
You ask yourself, is this demand letter real? Should I ignore the demand letter?
Reasons NOT to Ignore the Demand Letter
When you receive a image infringement demand letter, it’s important to take the time to understand the legal implications of not responding. Ignoring a image infringement demand letter can lead to costly and time consuming litigation with significant financial impacts.
- You may be subjected to a lawsuit (the lawsuit becomes a public record, and this can damage your reputation of your company). On top of that, you may be responsible for paying damages up to $150,000 for each image you have infringed. Yikes!
- You may be personally liable (copyright law allows for a Plaintiff to sue officers and directors of the company who have a financial interest in infringing conduct).
- Ignoring the demand letter and will make it a bigger ordeal down the line.
Ultimately, ignoring a copyright infringement demand letter can have serious consequences for both parties involved; therefore it is best practice to treat them with due diligence and immediate attention while taking into account all legal implications before making any decisions.
Step 1: Do Due Diligence on Demand Letter
- Do research on the law firm that sent the demand letter to you. Is this a real Intellectual Property defending law firm or family law firm that no one has heard about? This is a good indication. Make sure you take a look at the lawyer’s website and check out the info. Do they talk about photo infringement? Copyright law? Intellectual property law?
- If you know the image owner, find the owner on the Pacer federal case database. If the image owner has a history of filing lawsuits, you can expect them. You can expect them to typically hold out for a larger settlement amount.
- Research what the image owner charge for their commercial licensing fee? If the content owner has online pricing which indicate how much their photos sell for (or license for) then this is typically an indicator of what the photo is worth and what the settlement of expenses you could have to be. Of course, if a photographer’s representative is included, they will likely desire to get paid as well.
- The real question is whether or not the copyright has actually been registered at the US Copyright Office. This is an extremely important question, in light of the fact that if it does not, they might not really be that interested in speaking with you about the matter in the district court. If they did not invest in their image, they may only be posturing to see if they can get a quick settlement. Also, if the graphic, graphic file, image, picture file is not registered, that may be another indication that they will come around to your demands more quickly.
- Do they have any proof of infringement? The proof is in the pudding as they say. Do they have any proof against you? They might just need the image URL of it on your website. I always ask to see it as long as to present proof by a preponderance of the evidence. Not only do they have defensive options in cases of copyright infringement, but we’ll also make sure you get to see them.
These are the initial due diligence that I would examine before I respond to a image infringement demand letter. It is possible that there are other matters different based on the type of case and your circumstance.
Step 2: Talk to Legal Counsel
We don’t think it’s a good idea to ignore copyright demand letters. We recommend you talk with legal counsel and someone that specializes in intellectual property cases.
If you wish to have a recommendation for legal counsel that specializes in image infringement in your area, contact us. We’ll be glad to put you in touch with a specialist in your area.
Step 3: Handling Demand Letter Negotiations
The most typical question asked is “how much do demand letter cases settle for?”. As can be assumed, the price differs depending upon the factors that define the case.
These factors may include:
- How many images were infringed on?
- Did you immediately remove the infringing image(s) when notified?
- Was the infringement in bad faith/intentional/willful or innocent?
- Did the other person infringe the images willingly (intentionally)?
- Is there any reasonable argument for “fair use”?
- How much is the licensing fee?
- Was the image registered at the United States Copyright Office?
- Did you make money off of the infringement? If so, how much?
- Many other factors.
Generally, in any negotiation, you want to begin low and raise your offer incrementally. Begin at low levels, and make the timing of your response can be a factor. Extra efforts to mitigate financial hardship and sincerity determinants can also be important. To us, negotiating (and managing the settlement contract) are the reason why you would hire a professional lawyer.
Minor infringements often range between a couple hundred and five thousand US dollars, but serious infringements (such as willfully using a photograph on derivatives (such as putting a picture on a book cover, wall art, mural, outdoor furniture, cornhole or other game, wallpaper, or other merchandise sold on Etsy, Amazon, eBay, Zazzle or another e-commerce site) may cost dramatically more.
Step 4: Protect Yourself From Future Demand Letters
We recommend you periodically scan your website images to ensure none of your other images are infringing on copyright.
Use PicDefense.io to quickly check all the images on your website and ensure copyright compliance.
Each image will get a PicRisk Score. The higher the score, the more likely the image is a copyrighted image, and you should replace it immediately. If you have licensing rights to the image, then you can safely ignore the warning. Otherwise, we recommend you replace the images with licensed stock photos instead!
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