The Cost of a Photograph

Intellectual Property Update

The Cost of a Photograph

A famous cartoon depicts a dog at a keyboard with the caption “on the Internet no one knows you’re a dog.” The ability to download and copy images from the Internet to embellish a website, social media post, brochure, or power point presentation is alluring. Unauthorized use of images published on the Internet, however, comes with a risk of copyright infringement. That risk may be increasing because on the Internet no one knows you’re a “copyright troll”.

A copyright troll is “more focused on the business of litigation than on selling a product or service.” Copyright trolls target unauthorized use of photographs by demanding individual defendants settle claims at an amount calculated to be less expensive than the cost to defend the claim. Courts have begun to recognize the cost and disruption that can be attributed to “copyright trolls”. One attorney in New York has reportedly filed over 1,100 lawsuits in less than four years (an average of one copy- right infringement case every business day). That attorney has recently filed a half dozen cases in Arizona. Other attorneys have adopted a similar business model.

Copyright infringement is particularly well suited to the troll business model. First, a photograph can be copied from the internet easily, but that does not mean that it is lawful to do so. The photographer owns a copyright as soon as she takes a photo. The creativity of the photographer (embodied in the lighting, composition, exposure and other elements contributing to the image) results in a copyrighted work. Second, once the copyright is formally registered, the photographer can sue for copyright infringement and recover what are called “statutory damages”. For each infringement, statutory damages can be awarded for not less than $750, not more than $30,000 “as the Court considers just”. If the Court finds an infringement was committed willfully, the Court may increase statutory damage to not more than $150,000.  In addition, the Court may award reasonable attorneys’ fees to the prevailing party. 

Statutory damages give a copyright troll considerable leverage in settling a claim even if the photo would otherwise command only a small license fee. The cost to assert a legitimate defense will be thousands of dollars; consequently, the troll’s settlement demand will be thousands of dollars, untethered from the value of the photo.

The right to recover statutory damages and attorneys’ fees is intended to prevent infringers from exploiting copyrighted works before copyright owners can commercialize their work. Many copyright owners have actual damages that would be difficult to prove and properly seek statutory damages compensate for unauthorized use of their work. Even with a right to recover statutory damages and attorneys’ fees, the cost of copyright enforcement in federal court can be prohibitive. To address this concern Congress is considering legislation (the CASE Act) establishing a voluntary “small claims” procedure to enforce copyright damages up to $15,000 per infringement. If enacted, which now seems likely, this change could further increase enforcement efforts by copyright owners.

To avoid the dilemma of choosing between statutory damages and the cost of litigation, use only photographs either: (i) taken by you, or (ii) licensed by you for a fee paid to the photographer or an organization like Getty Images. Negotiating a license fee up front lets you make a reasonable business decision about whether or not use the image. Some services offer royalty free licenses, but always check the scope of the license — licensed photos can only be used for the authorized purposes and free licenses usually exclude commercial use. 

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