Asked in Copyright and Intellectual Property for Massachusetts

Q: A photographer is claiming use of an image without permission and demanding copyright damages. What do we do?

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1 Lawyer Answer
Steve Charles Vondran
Steve Charles Vondran
PREMIUM
Answered
  • Intellectual Property Lawyer
  • San Francisco, CA

A: There are many "photo trolls" out there seeking thousands of dollars for use of a single image. There are many different things we consider in deciding what amounts are fair and proper under the copyright law. For example, some factors to think of are:

1. Is the photo registered with the United States Copyright office? (I usually like to ask to see the registration certificate so it is clear who the rights holder is - you need to be aware of potential fraud of course).

2. Is the photo or image being used "commercially" - if so, for how long? (many photo infringement cases do in fact involve commercial uses and that can severely diminish any hopes of a "fair use" defense - but look that up to be sure as well, or get a fair use opinion from a copyright attorney

3. Ask them to see proof of prior licensing (have they licensed the image before? If so, for how much)? This may give you a guide as to a proper offer to make to settle. Realize, these companies will usually want an "infringement penalty" and if a law firm is representing the photographer, they will likely want attorney fees or a legal "pursuit fee" as we sometimes call it.

4. Sometimes documenting a financial hardship (submit proof of having only a couple hundred bucks in your bank account, for example, may help get a lower settlement)

5. Did your webmaster choose and post the image? If so, perhaps they will kick-in to help with the settlement.

These are some of the main things I look at as an IP lawyer. Always start your negotiations LOW, and be prepared to do a few "bumps." Many times they will threaten to sue you (look up the photographer in the federal Pacer system - do they file a lot of lawsuits? Good information to know.

Best of luck. Attorney Steve®

Kathryn Perales agrees with this answer

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