Q: A photographer is claiming use of an image without permission and demanding copyright damages. What do we do?
N/A
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
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.
