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