Innovation@work: Is Your Website Safe from Copyright Trolls?

By: Kristin Mendoza

If you are a small business owner looking to launch your Shopify site or company website on WordPress, you’ll be looking for attractive (perhaps somewhat generic) images to add visual interest to your site. The temptation to keep costs down in developing your site could ultimately bring you to pages like Google Images or Bing where you’ll be able to use key search terms that produce pages upon pages of images for your perusal and, with a few mouse clicks, download. But, what you may not realize, is that by using that downloaded image on your own site, you may be opening yourself up to claims from copyright trolls.

These days, downloading content from the Internet can be accomplished so quickly and easily that few people stop to consider the legal ramifications of their actions. In fact, what they are doing may be called copyright infringement.

What is a copyright?

A copyright is a set of rights that are given to the creator of an artistic work that allows control of where and how their artistic work is used. These rights automatically exist upon creation of the work and the creator need not take any special action to acquire these rights.

What is copyright infringement?

Copyright infringement is the use of a creative work without the permission of the creator. Permission can be given exclusively to one person or non-exclusively to many people through a licensing arrangement. It is also possible for a creator to grant permission to the general public by putting the work in the public domain or giving very broad rights of use through what are known as “creative commons” licenses. It is also possible to buy all of the rights to a creative work from the original creator, for example, when you hire a graphic artist to design an image for you. In the absence of creating the image yourself, buying the rights to the work from the original creator or acquiring a license or other permission to use the work from the current owner, you can be subject to a claim for copyright infringement for images posted on your website without permission from the creator.

What are copyright trolls?

Copyright trolls are individuals and businesses that acquire rights of large portfolios of images and other creative works for the sole purpose of threatening to sue others who use those images without express permission from the copyright owner. The general pattern of a copyright troll is to search the Internet for use of one of the images within their copyright portfolio and identify all websites containing that image. Basic contact information is collected about each website and then letters from a law firm supporting the copyright troll are generated and sent out. The letters themselves provide an “offer” to settle the matter through purchase of a copyright license for the image, usually for thousands of dollars. The letters will also usually state that simply deleting the image from the offending website is not an appropriate remedy and that only a settlement through license agreement will resolve the issue.

(NOTE: They are partially right here. Deleting the image doesn’t erase the fact that you, as the website owner, have already committed copyright infringement and ignorance as to the copyright owner’s identity is not a defense. However, the copyright owner could simply demand that the website cease further use of the image and promise not to use it in the future as a remedy. But, since the mission of a copyright troll is to make money off of the unauthorized use of a copyrighted image, such generosity of spirit in accepting a non-monetary settlement is rarely found.)

How can you protect yourself from a copyright troll?

The obvious answer here is to not download images from the Internet if you do not purchase a license to use those images. Sites available through Adobe or Getty Images make digital images available for licensing. Some images can be licensed for as little as $1. The initial upfront investment is generally worth it compared to the thousands of dollars that you might need to spend to get rid of a copyright troll.

If you do find images on the Internet that are available for download without cost, take a few minutes to read the terms of use on the website hosting those images to understand how those images may be used. Websites such as http://www.freeimages.com provide a broad license to use images hosted on its page. However, some sites may offer images under creative commons licenses, of which there are several varieties. Some creative commons licenses allow for broad use, but others prohibit use on commercial websites or require users of the image to maintain attribution of the copyright owner in connection with use of the image. (You’ll notice that sometimes under an image there is a parenthetical such as: (Source: John Doe). This is attribution.) For any images that you find that you believe are available for use by the general public, print out and save the terms of the license in the event that your use of the image is questioned.

If you are contacted by a copyright troll, be ready for the onslaught of communications that will be coming your way to encourage you to settle the copyright infringement claim through purchase of a license to use the image. However, before handing over your credit card number or cutting a check, do the following:

• Ask the firm to verify the copyright owner’s claim by providing you with copyright registration information. Many times these demand letters will suggest that the copyright owner is entitled to statutory and punitive damages, attorneys’ fees and other remedies. However, some of the rights and remedies are only available if the image has been registered with the U.S. Copyright Office.
• If you downloaded the image from a site that you believe gave you a license to use the image, either dig through your files to find the terms of use or go back to that website and print any information you can find about that site’s term of use for downloading images. It may be that the original owner of the copyright posted the image on that website as a way of building their portfolio and professional reputation before transferring ownership of the image to the copyright troll. If this is the case, you do, in fact have a license to use the image in question.
• NEGOTIATE! Remember the goal of the copyright troll is to make money. While they would certainly like to make thousands of dollars off of your use of their image, they are still making money if they accept a settlement for $400-$500 because they have not invested a lot of time or resources into pursuing you yet. Conversely, don’t ignore the demands completely. While they prefer settlement through licensing arrangement, copyright trolls have typically anticipated that they will need to fund at least a few lawsuits, and the law firm they have previously engaged has the complaint and process against you ready to go so they can pursue you as quickly and efficiently as possible. Once a lawsuit is filed, the chances of a low-cost settlement are gone.

Remember that Google Images and sites like Bing do not evaluate whether an image coming up in a search result is freely usable or subject to copyright. And even when those sites do try to detail whether an image is subject to a creative commons or other license, you still must go to the source site and determine what exactly those license rights are for yourself.

Remember, ignorance that the image was protected by copyright is not a defense to copyright infringement! For every image on your website, you should be able to demonstrate that either:

1. You created it yourself
2. You purchased or licensed it from someone else
3. You acquired the image through a website where the terms of use gave you permission to use it

If you are not sure whether an image that you would like to use is available to the general public for use, the safe approach is not to use it or to seek the advice of a legal professional who can assist you.

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