It’s a common scenario – you receive a threatening letter, alleging that you have infringed on a third-party’s copyrighted images and demanding you pay a certain amount in order to settle the claim. This undoubtedly raises a number of questions: Is this legitimate or a scam? Should you respond or ignore the letter? Should you pay or fight back?
Responding to Copyright Demands: Essential Steps
These types of demand letters typically come from parties commonly referred to as “copyright trolls.” They are generally not true scams, as the “troll” is authorized by the copyright owner to enforce the rights in the copyright, but the goal is more to collect a quick payment rather than to truly protect a party’s intellectual property rights.
Verify the Claim
Because these demands have some legitimacy, they shouldn’t simply be ignored. If you receive one of these demand letters, you should carefully review the claims and the copyrights in question. As an initial matter, you should confirm you are in fact using the copyright. Copyright trolls send out these demands routinely and often, so mistakes do happen.
Assess the Number of Claims
Take stock of the number of copyright claims being made. Did you use one image or an entire catalog of images? Your potential exposure is directly tied to the number of copyrights you allegedly infringed on. If you realize you have in fact infringed on a copyright, you should immediately take down and remove the images. Prompt removal limits the copyright owner’s ability to claim the infringement was “willful” which subjects a copyright infringer to additional damages.
Respond to the Letter
You should respond to the letter, indicating you have removed the content and requesting additional information, such as the copyright registration in question and any other evidence of ownership of the copyright. Note, a copyright owner can only file a lawsuit if the copyright is registered (many times this is not the case).
Seek Legal Counsel and Settlement Consideration
Hopefully, the removal of the content and the request for additional information prompts the copyright troll to drop the claim. If, however, they insist on payment, it would be advisable to contact your attorney to not only provide a more formal response, but to review the claim to determine if you have any defenses to the copyright infringement claim, such as fair use. Unfortunately though, in some instances, a small settlement payment may be the most efficient and cost-effective way to resolve these claims.
If you need assistance in responding to a copyright troll or otherwise need assistance with intellectual property matters, please contact Alex Jones (AEJ@kjk.com; 440.832.0599) or your KJK attorney.