CDAS’s Copyright Photo/Video Claims Defense Checklist for Media Platforms

opyright infringement claims from photographers and image licensing companies have become increasingly common with the widespread use of easily accessible digital content on the Internet and in social media.  Photo copyright owners discover these claims en masse by way of image recognition software, and often pursue them using high-volume contingency fee-based law firms, claiming that any number of posts from time immemorial constitute infringements justifying large settlement demands.  But just because you’ve received an unreasonably high demand that far exceeds any typical license fee doesn’t mean you’re liable for that amount.  Some due diligence can help you gain leverage in these disputes, and possibly even avoid further litigation.  To be sure, content creators should be fairly paid if their content has been misused, but the extremely aggressive way some of these claims are pursued calls for a nuanced and informed approach.  You should contact a firm with experience in copyright and litigating image claims if you find yourself on the business end of one of these demands (especially a formal lawsuit), but for now, here are the basic steps you should take to preserve your best defenses and minimize potential exposure to costs and damages:

• Receipt of a Demand Letter or Complaint
  • Step One: Take a screen shot of the image and the post first to preserve evidence, and then remove the image from your website or platform while you investigate whether you have a license.
  • Step Two: Investigate the claim:
    • Review records and interview employees, interns, contractors, etc., to try to determine at least the following:
      • Do you have a license for the image from the owner or an authorized licensor?
        • If yes, review the terms to ensure the image was used for an authorized purpose under the license and put the licensor on notice of the claim.
      • Where did poster get the image?
      • Did the poster pay for it? If so, whom did they pay?
      • Was the image copied and hosted on your server, or was it embedded or linked?
      • How much would a license for this image or a similar image cost?
      • Is it possible the image is public domain (g., published before 1923)?
      • When was the image posted (is there a possible statute of limitations bar)?
      • Who is the photographer and/or their representative?
        • Is this a serial litigant or notoriously aggressive attorney?
      • Step Three: Do you have a valid defense?
        • Fair Use:
          • What fair use is NOT
            • Availability on the Internet does not = fair use.
            • “Right click and save” does not = fair use.
            • Copying from social media does not = fair use (without additional context and factors).
          • Consider the following factors:
            • Was the use commercial? Was it editorial?  Did you comment on the photo itself?
            • Was the use “transformative” in any way? That is, was the image used for a different purpose or was anything changed or added?
            • Was the work more factual or creative?
            • How much of the work was used?
            • Is there a market for the way in which you used the photo?
          • Look at the context around the use, how size of the image used and if there is commentary regarding the image. However, note that fair use is a complicated question likely best suited for attorney review.
        • Step Four: Respond to the Claim:
          • If you have a license, send a copy to the claimant or their representative.
          • If you have no license:
            • Ask to see a copyright registration if it has not already been provided.
              • Lack of registration means no standing to sue (except for foreign authors).
              • Untimely registration means no statutory damages or attorney’s fees for infringement (although they could be available under other parts of the copyright laws); this means that damages are typically tied to a reasonable license fee and a minimal use may not be worth pursuing.
            • If you have plausible defenses, use them as leverage to demand a more reasonable settlement.
              • Defenses include: fair use, lack of registration, and untimely registration (see above); de minimis use (use of a small fraction of the entire work, g., a screen shot of a longer video); minimal damages (see below).
            • Make use of your research concerning the value of the photo at issue; the reasonable license fee you would have paid often serves as the benchmark for a damages award and a basis for negotiations.
            • Consider settling quickly; initial demands are often negotiable, but tend to increase as time goes by and the other sides invests more in legal fees and costs.
          • If you’ve been served with a formal complaint:
            • If the claim is truly frivolous (your attorney can help determine this), consider the possibility of a “Rule 11” sanctions motion.
            • Motion to Dismiss: most defenses are fact-intensive and not amenable to motions to dismiss, but some may be, including fair use in the realm of news reporting, parody, commentary, and de minimis
            • Answer: if your defenses are not viable at this early stage, you must answer the complaint to avoid defaulting.
          • Step Five: Proceed to Litigation (if all else fails):
            • Consider the possibility of mediation
            • Absent prompt settlement, initial case planning and discovery will commence
              • Bear in mind this can get expensive quickly!
• Best Practices Bonus: An Ounce of Prevention…
  • Ensure all employees (including interns) are trained on what images they can and can’t use; and in particular do not rely on online image search results for licensable images.
  • Memorialize training in written policies or manuals signed by all trainees.
  • Default to licensed content from trusted image licensing platforms such as Getty Images, Shutterstock, or Adobe (for licensable images that can be searched by keywords, try dmlasearch.com).
  • If seeking content outside vetted licensing services, check with counsel first.
  • Consider Creative Commons licenses, which allow for certain types of use without further permissions or license fees (although all require attribution/credit to the copyright owner and may have other terms and conditions).
  • Do not rely solely on traffic agreements between websites even if the trading partner claims to have licensed the image.

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Dealing with copyright claims and litigation involves complicated analyses, financial burden, and stressful uncertainty.  Today’s climate of mass-produced, algorithm-supported copyright litigation by aggressive plaintiff’s lawyers provides every incentive and virtually no downside to litigation for the millions of potential plaintiffs whose photographs make their way online.  Accordingly, content users must look out for themselves, be proactive, and remain diligent in their appropriate procurement of content.

CDAS LLP Litigation Group Partners:

Scott J. Sholder                 ssholder@cdas.com

Nancy E. Wolff                  nwolff@cdas.com

Disclaimer:

This blog is provided for informational purposes only, does not constitute legal advice, does not necessarily reflect the opinions of CDAS or any of its clients, and is not guaranteed to be complete, correct, or up-to-date. CDAS does not intend to create an attorney-client relationship with any readers by way of publishing or disseminating this blog.

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