Sharing Photographs: Excessive Copyright Demands
By Law Office of Vasilios Peros, P.C., Maryland
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Technological advancements in social media sites and website development tools have allowed users to easily share and discuss articles and photographs across the globe. In parallel with these technological developments, various organizations have sprung up that claim to represent owners of these shared photographs. These organizations send a letter and make an excessive copyright demand. Users must understand their rights before deciding whether to succumb to such excessive demands.
Social media websites have become a primary means of communication across the globe. Today, sharing of articles and photographs can be accomplished with a few simple clicks – many times from one’s mobile smart phone. Technological advancements have also made it quite easy for anyone to build their own website and share articles and photographs. In some cases, the photograph is part of an article posted on an online magazine’s website. Such articles typically include buttons for sharing the article on multiple social media platforms.
Copyrights are granted to the creator of a work of authorship the moment that the work is fixed into any tangible form. Copyright protection commences from the time that the photographer creates the photograph or the author writes the article. The creator owns the exclusive rights to copy, distribute, make derivative works of, publicly display and publicly perform the work. Other parties would require a license to use such works.
The organizations that represent photographers may have a legitimate purpose or may simply be copyright trolls. A copyright troll is a plaintiff who seeks damages for infringement upon a copyright it owns, not to be made whole, but rather as a primary or supplemental revenue stream. Trolls understand that enforcing copyrights can be more profitable than creating new works. Despite the possibility that some infringers will fight back in court, copyright trolls continue to exist today.
To prove copyright infringement, a plaintiff must show that it is the owner of the work, and that the user violated at least one of the exclusive rights. Users who receive letters should request proof of ownership or valid license from the applicable creator, and also proof of copyright registration.
A copyright holder can elect for either statutory damages, or for actual damages caused by the infringement as well as profits. Statutory damages generally range from $750 to $30,000. If the court finds the infringement willful, it may raise the statutory damages to as much as $150,000. But statutory damage awards can be as low as $200 if the user can prove that it was unaware that it infringed on the copyrights. However, if the work was not registered for copyright protection, then the creator may not be entitled to statutory damages. Without statutory damages, copyright trolls would lose their incentive to litigate.
Users are typically not aware that the material was protected by copyrights, and any alleged use was likely unintentional, not willful. Upon receipt of the demand letter, the allegedly infringing material may be immediately removed from the user’s websites. Even if statutory damages do apply, the $150,000 maximum would not apply to infringement that was not willful.
The copyright troll’s demands for fees for a retroactive license are typically excessive and unreasonable. Courts have ruled that copyright royalties must be reasonable. On Davis v. The Gap, 246 F.3d 152 (2d Cir. 2001) (finding that a claim of $2.5 million was wildly inflated and speculative and that evidence supported a much more modest claim). Users should review the license fees for comparable photographs to determine the range of reasonable fees in the marketplace.
Under U.S. copyright law, the fair use exception allows use of copyrighted material for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. One factor of the legal test addresses commercial use. Commercial use is given some weight in favor of finding fair use when the use is transformative – for example, use of the plaintiff’s copyrighted work in a different context such that the plaintiff’s work is transformed into a new creation.
Use of thumbnail versions of images linking to full size images and content on another website is fair use. Even though the entire original photo is used by online search tools, it serves a different function than the original photo. The search tools transform an image into a pointer directing a user to a source of information and provide a social benefit by incorporating an original work into an electronic reference tool. The use does not harm the market for full size images. Perfect10 v. Google, 508 F.3d 1146 (9th Cir. 2007).
Use of an image of a magazine containing photos to provide information to legitimate purchasers of the physical magazine is also fair use. The use was transformative with a purpose different than that of the photographer. The photographs in the article were already altered by the editors of the magazines. The photographer had already consented to have his works copied, altered and widely distributed, and had been compensated accordingly. Rosen v. eBay, 2015 WL 1600081 (C.D. Cal. 2015).
In the end, users should modify their processes and select images that are available royalty free or simply get a license in advance. Many online sources exist for such purposes. But when a demand letter is received, users must understand their legal rights and request the above additional information and make the appropriate legal arguments before deciding to pay an excessive royalty.
ABOUT THE AUTHOR: Vasilios Peros
Vasilios Peros is founder and principal of Law Office of Vasilios Peros, P.C. With over 25 years of experience in legal advisory, management and engineering roles, his practice is focused primarily on business, technology and intellectual property law. He has been recognized as one of Greater Baltimore’s top attorneys, including SmartCEO’s 2016 Centers of Influence, 2015 CPA + ESQs, 2014 Power Players, and Legal Elite in 2011, 2010 and 2009.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.