Got A Copyright Infringement Notice? Here’s What You Have To Do
By Mikelle Leow, 02 Nov 2022
So you’ve found a lovely photo from Google Images and intend to use it on your website. As someone who doesn’t wish to get on the wrong side of copyright law, you check its license to ensure it’s cleared for use.
The terms say the work is a Creative Commons (CC) resource, and you can share it even for commercial purposes, so long as you provide proper accreditation. Score! You go ahead and publish it in a blog post, adding a line of credit to the photographer.
A year later, you receive a letter forcing you to take down the photo and demanding you to cough up a steep sum—anywhere in the hundreds and thousands—for infringing its copyright. You’ve completely forgotten that image even existed.
There could be a multitude of reasons why this happens. Most of the time, the person who downloaded and reused the offending image could be clueless about copyright law. Some have a little awareness but think they won’t be unlucky enough to get caught. Then there are the “copyright trolls” who lure people into making mistakes, before sending out threats to many users once; our original investigation shows how convoluted this scheme can be.
For one, the New York courts are extremely familiar (and not chummy) with one lawyer who, as of 2019, filed 1,210 copyright claims in the state’s federal trial courts on behalf of photographers and other copyright owners, pursuing so-called “violators” for an estimated US$4.5 million. 500 out of 700 cases he filed in Manhattan federal court were “resolved without any substantive litigation.” This lawyer has since been suspended.
One popular image crawler says it has scanned 65 million photos and amassed US$63 million in “stolen image claims,” as well as won cases in 115 countries. Another service shares that it has taken users to court and emerged triumphant in litigation in 18 countries.
Anyone who has ever downloaded someone else’s image—be it copyrighted or licensed under the Creative Commons—and shared it online may already be putting themselves in a vulnerable position, and it’s easier to get entangled in these “traps” than you think. Here, you’ll find out myths about copyright on the internet, why you can be liable even when you live far away from the copyright owner, what you can do if you receive a copyright letter, as well as contacts to reach out to if paying for legal advice isn’t possible at this time.
If you’re a photographer or artist on the fence of paying for a reverse image search service, our research has shown that there is a darker side to some of these platforms. Here’s a more relevant post that you may want to look at.
If you know anyone who is affected, pass it on. This article is also free for anyone to republish (note: does not include stock images as they ought to be separately licensed)—with attribution and link to this page—so that the broader community can learn from these experiences.
Don’t risk it: it’s too easy to get caught
Illustration 51695666 © Retrostar | Dreamstime.com
Just because practically everyone you know willfully downloads and shares photos from the Wild Wild Web without considering the consequences, it doesn’t mean you’re safe. Every photo has a “fingerprint” made up of letters and numbers, determined by features like its colors, textures, and relationships between the objects in it. With a reverse image search tool, anyone, most definitely including the originator, can track down where else the image has been.
Some of these platforms—such as PhotoClaim, PicRights, ImageRights, Pixsy, and Copytrack—bundle their tools with legal services. When breaches are purportedly detected, their lawyers will be hard at work sending out hundreds or thousands of copyright letters over the same image at once.
First, it’s important to clear up a few misconceptions about image use on the internet to avoid future trouble.
Copyright myths
Myth: public domain = public access
The public domain is “the realm embracing property rights that belong to the community at large, are unprotected by copyright or patent, and are subject to appropriation by anyone,” defines the Merriam-Webster dictionary. So if a photo makes its way to “the community at large” but is copyrighted (be it to your knowledge or otherwise), it doesn’t make it a public-domain work.
“You cannot just go on to Google Images, save an image, and then use it on your website,” says Darren Heitner, founder of Heitner Legal, a law firm that deals with cases involving intellectual property trolls “on a daily basis.”
Just because someone shares a photo or artwork on social media and, therefore, puts it on the “public domain,” it doesn’t make it a public-domain work. The onus is still on the user to trace the image’s origin. You can do this by uploading it on a free reverse image search tool.
Myth: attribution = consent
Citing the creator’s name isn’t always enough. You will also have to double-check the image’s license type, or make sure you have licensed it from an official channel.
If the picture is not something you can download from a stock library, reach out to the copyright holder to see if you have permission to use or share their work. Then, save a copy of your exchange in case you may need it in the future.
Though, as established earlier on, even if you check the license terms and give a mention to the material’s author, you could still slip through the cracks. Maybe the copyright owner doesn’t accept your accreditation as sufficient, or they may not even be the originator of the image.
Myth: asserting “Fair Use” is typically enough to protect your use
Claiming ‘Fair Use’ won’t stop you from getting sued. As per global consulting firm Willis Towers Watson, you can only present this argument in court as defense when you’re already caught in a legal dispute.
When you’re at that stage, it is up to the court to determine if the use was indeed, well, fair. Under the US Copyright Act of 1976, Fair Use can be established when the work is reproduced for the purpose of “criticism, comment, news reporting, teaching… scholarship, or research.”
The judge will also look at the purpose and nature of how the content is being used, including whether it is commercially-driven or for nonprofit educational purposes; the nature of the “infringed” work; the extent to which the original has been reproduced; and how the intended audience may perceive this use.
Ultimately, usage is reviewed on a case-by-case basis by the court.
Myth: Creative Commons = cool for use
Photo 236209943 © Sakibul Hasan | Dreamstime.com
Not all Creative Commons licenses are created equal. CC BY-NC, for instance, is for non-commercial use.
More than that, using a photo tied to an older CC license (anything earlier than a 4.0 license) could bite you in the back later on. If you’re even a little careless with the attribution, your right to use the image will be immediately terminated. The newer licenses are more forgiving—more on that later.
A typo or a hyperlink to a URL that isn’t the one suggested by the copyright owner could be cause for trouble. If the photo is under a no-derivatives (ND) license, you cannot share the material in a state where it has been remixed or built upon.
In 2019, one photographer was ensnared in a legal battle for reusing a photo he had found on Unsplash. Although the site promises to grant users “irrevocable, nonexclusive, worldwide copyright license to download, copy, modify, distribute, perform, and use photos” across its repository, it was later discovered that the image was put there by a third party who wasn’t the copyright holder.
What to do when you get a copyright letter
1. Don’t panic—take down the material
Remove the offending image. Then take a deep breath as you’ll need to be calm and collected to effectively get through the next step.
2. Investigate before even thinking of signing the cease-and-desist
The cease-and-desist declaration has no legal standing—it’s merely a cautionary document alerting you that legal action could be taken if you don’t heed the warning. It’s only when you sign it that it becomes an actual contract. When you do that, it’s an admission of infringement and an agreement to costs being tacked onto you. You may also be subjecting yourself to a foreign jurisdistiction.
“I cannot recommend anyone to sign the declaration sent along,” says Tim Hoesmann, a German attorney-at-law focused on issues relating to media, copyright, and business law. His firm, Kanzlei Hoesmann, deals with threats by “copyright trolls” on a regular basis. “This declaration is a valid contract under German law… On the one hand, a cease-and-desist declaration is issued, but at the same time, high claims for damages are already contractually recognized,” he tells DesignTAXI.
Look up the name of the sender and who they’re representing. Chances are, the takedown request is a plea from someone who is genuine.
However, there are professionals whose niche is to profit off copyrights, and one way of getting there is by sending numerous aggressive emails—sometimes to innocents—and waiting to see who takes the bait. We, too, got a letter, but the dispute was subsequently dismissed after we presented proof of usage rights.
3. Run a reverse image lookup
There are free reverse image search engines you can use to locate the origin of the photo in question. These include Google Images, TinEye, and Bing Visual Search.
By looking up the image, you might end up on a stock library that licenses the same asset. If you’re lucky, you’ll be able to find actual prices for the photo and assess a fair market value if you have indeed infringed its copyright.
4. Check the statute of limitations
Borders don’t really exist now that there’s the internet. You could be liable for damages for distributing a photo created by someone else from the other corner of the world. Their lawyer could be from a different country and hold you accountable for violating copyrights according to their—the attorney’s—law. Weird, but you’ll find out more about this loophole later.
By verifying the limitations of action in your jurisdiction (more on that below) and that of the copyright owner, though, you’ll ensure that the time limit that the copyright claim was brought hasn’t expired.
5. Seek expert advice
While it’s recommended to engage a lawyer, this may not always be feasible. However, pro bono assistance is available.
This year, in the US, a small-claims tribunal called the Copyright Claims Board (CCB) was launched to be more accessible for the masses. Filing a claim only costs US$40, and no legal representation is necessary.
6. Offer a gesture of goodwill
If you discover that you did infringe the work, take accountability and apologize. The photographers are sometimes clueless about the ongoing proceedings, so our recommendation is to always CC the creator in your emails with the lawyer to ensure transparency.
Give an explanation for what may have happened that led to the violation, and offer a reasonable compensation according to what you have researched about the photo or similar images.
If possible, offer a gesture of goodwill, such as helping to spread good word about the photographer.
The “safest” CC licenses
Photo 213655934 © Transversospinales | Dreamstime.com
With older versions like 2.0 and 3.0, your license could be terminated immediately if you don’t follow the terms—such as citing a specific URL—to a T. That means you will have lost the right to publish the material, and any desire to remediate things won’t matter. Still, these licenses remain HEAVILY in use because sites like Flickr haven’t found a way to accommodate the newer versions across their entire ecosystem.
CC BY 4.0 licenses
Until the next license comes along, your best bet would be to use an image applied to the most up-to-date version, the 4.0 Creative Commons licenses, which honestly aren’t that new—they were rolled out in 2013 and now function simultaneously with the older versions.
What sets the latest version apart is that it allows the “infringer” a 30-day window to correct a violation. Following that, their license will automatically be reinstated.
In other words, copyright capitalists looking to game the system are least likely to place their images under the more forgiving CC 4.0 licenses.
Further protecting the user, CC licenses beginning from 4.0 are universal and share the same usage terms worldwide. Before, there were “ported” types that limited usage to regions.
“In all cases, we recommend that creators use the latest version of the licenses, as it reflects the latest thinking of Creative Commons and its global network of legal experts,” notes the Creative Commons Organization, a nonprofit of international collaborators advocating for open sharing.
With that being said, users should check their spam folders regularly to ensure they don’t miss out on edit requests by the copyright owner, or risk losing their right to use a CC-BY 4.0 image after the 30-day window.
CC0
While public-domain works, sometimes labeled as CC0, are generally deemed the most trustworthy, there’s also the danger of the material being assigned to this category by a rando who isn’t familiar with copyright law. You should always obtain public-domain images from reputable sources, such as museums that have digitized century-old artworks whose copyrights have lapsed.
Good to know: CC licenses are irrevocable
So even if the copyright holder were to add a secondary license to a photo, your original rights will still be intact. “Once you receive material under a CC license, you will always have the right to use it under those license terms, even if the licensor changes his or her mind and stops distributing under the CC license terms. Of course, you may choose to respect the licensor’s wishes and stop using the work,” explains the Creative Commons Organization.
Can I be sued for copyright infringement cross-border?
Photo 29983884 © Potowizard | Dreamstime.com
Can you face legal repercussions from someone across the pond? It depends on your jurisdiction, but the general answer is yes.
Most countries and states around the world are signatories to the Berne Convention treaty, which aims to achieve the closest to a universal copyright law. Under this act, there’s no need to file a formal registration to protect a creative work as copyright is automatic across member states—an Indian artist’s painting will immediately be protected in England, for example. The US is one exception where a registration for a copyright must still be made to be entitled to statutory damages and attorney’s fees.
The Berne Convention is also built on the idea of the “country of origin,” the country the work was first published in. However, this being the internet age, courts have a hard time agreeing on the so-called country of origin, since content can go live all across the world at once. “Copyright trolls” can get pretty stubborn about this act and insist that an infringed work can also be a breach of copyright in their country, such as Germany, because it is visible from their internet browsers, and then even enforce their jurisdiction’s copyright law.
If you live outside of Angola, Ethiopia, Eritrea, Iran, Iraq, Kosovo, Maldives, Marshall Islands, Myanmar, Palau, Palestine, Papua New Guinea, Seychelles, Somalia, South Sudan, Taiwan, and Timor-Leste, your nation or state is a member of the Berne Convention.
Offenses have an expiration date
Photo 28676185 © Andreykuzmin | Dreamstime.com
Each jurisdiction has its own limitation period, the amount of time that a person can file a claim against another. It’s good practice to check the country of origin of the “infringed” work and ensure that the limitation of actions in that jurisdiction hasn’t lapsed.
Australia: Six years from the date infringement occurred, regardless of whether the holder was aware of the violation.
Belgium: Five years, in general, starting from when the copyright holder becomes aware of the violation and of the identity of the violator. The maximum amount of time for an infringement to be brought, regardless of whether the holder has had knowledge of the infringement, is 20 years.
Canada: Three years from the time the copyright owner “ought to have known” about the violation.
Denmark: Three years in order for indemnities, compensation, or remuneration to be claimed. The claim can also be postponed for up to 10 years if the violator acknowledges the breach or the holder decides to take legal action.
France: Five years from when the claimant had come to know of the act, or ought to have been aware of the alleged breach.
Germany: Three years from the end of the year of the point of discovery. For infringements that the copyright holder is unaware of, the limitation period is 10 years since they first incurred damage from a violation. The maximum period, for rights holders who have not been made aware of an infringement, is 30 years.
Hong Kong: Six years from the date that damage was first suffered.
Italy: No time limit is observed for when copyright claims should be filed by. However, to be eligible for a preliminary injunction proceeding, claimants must prove “urgency” by making a complaint about six to eight months from when they first discovered a violation.
Norway: No time limit for a claim to be made, though copyright holders will need to file a monetary claim for compensation within three years from the date that they were made aware of the violation and the infringer’s identity.
Singapore: Six years after the time the infringement first took place.
Spain: Five years from the date a claim could legally be filed.
Sweden: 10 years, and five years for criminal proceedings.
UK: Six years from the date the infringement was committed.
USA: Three years from the date of the “last act” of infringement. The way the “last act” is determined varies; it could be the moment a person first publishes a photo on a blog post without consent. Though, if that image has been removed, the last act of infringement would be when the photo was taken down.
Since limitations of actions differ across jurisdictions, you can check here to find yours. All time periods are, to the best of our knowledge, accurate as of the time of writing.
Can I ignore the problem until it goes away?
It’s been established earlier in this article that you shouldn’t sign the cease-and-desist order until you’ve done sufficient research and ensured that there has been infringement, as you would be admitting to guilt.
Even if you did sign the declaration, there’s still hope for salvation if you seek immediate advice. “Anyone who has signed the clause in ignorance of the legal situation can subsequently contest it,” says Hoesmann. “The sooner one defends oneself against these cease-and-desist letters, the better the chance.”
And that’s pretty much all the ignoring you should do.
While the common consensus by the public is to ignore the emails, lawyers and those who have had legal counsel warn against doing so, and recommend turning to an expert.
“Some lawyers, particularly those who are not familiar with copyright image rights associations and plaintiff’s firms, suggest to their clients that the best move is to ignore threats. That is the furthest thing from the truth,” says Florida-based sports and trademark lawyer Darren Heitner. His legal practice regularly deals with threatening copyright letters, many of which are issued by Higbee & Associates, which he says is “known to litigate across the country when there is a complete lack of a reply.”
“For example, the image rights association PicRights may send a copyright infringement demand letter with a low payment request. If ignored, they will typically escalate to Higbee & Associates, which will commonly raise the demand for compensation and be more aggressive about compliance,” Heitner adds.
Italian international law attorney Christian Montana of Gardenal Camatel Montana stresses that while it’s not advised to sign the cease-and-desist order, “in court proceedings, it is always good to show that the cease and desist has been replied to, with valid arguments.”
While it’s true that most cases launched by “copyright trolls” are settled out of court, they have occasionally moved forward with litigation.
How to avoid getting targeted
1. License the photo
If it’s not possible to license it from a royalty-free stock library or the creator’s official press channels, check with the owner to see if you have permission to use the image.
Alternatively, Creative Commons images are some of the safest (albeit not bulletproof) resources to use. There are over 600 million creative works you can access via the Creative Commons search engine.
2. Run a reverse image search
To be extra careful, look up the image on sites like Google Images and TinEye to ensure that whoever you downloaded it from is the true owner of the work.
Do be aware that sourcing from “free-use” sites such as Unsplash isn’t 100% safe, as images may be uploaded by someone who is not the copyright owner.
3. Watch out for typos in the attribution, and read the fine print
At least for this instance, the copy and paste functions are your friends. Read the license terms for “free-to-use” images very carefully as the slightest misstep could void your right to use them.
A student team thought it’d done its due diligence to prominently credit the photographer for its use of a generic medical syringe photo downloaded from a popular Creative Commons website. However, the copyright holder still demanded US$5,000 in compensation because they did not fulfill the stipulated condition to link up a specific page in the owner’s website, as well as display the photo’s licensing terms.
4. Keep a record of authorization
If you get the all-clear from the image’s owner to use their work, or have licensed it through a royalty-free image bank, save the proof as it may come in handy later.
5. Check your email inbox and spam folder
Occasionally, you might receive an email by the copyright holder to take down the image or edit the attribution line. To avoid inconveniences like escalating fees, check your emails (and junk folder!) regularly.
For material under the CC 4.0 licenses, you’ll have 30 days to fix a violation—you don’t want to miss this window.
The takedown letters sent out by copyright trolls oftentimes end up in junk folders too. Checking spam mail will help you avoid being forfeited with climbing interests, or having your non-response assumed as a “non-obligation”—leading to “default” and inflated penalties.
Just In Case: Remove all risky photos from your website and socials
Whenever you have the time, you might want to review and pull down potentially infringing images that have been around since your statute of limitations began running. It’s better to be safe than sorry.
As emphasized above, just because an image has made its way on the farflung reaches of the internet, it does not leave that material open for the taking. With these points in mind, you may now recognize the reasons creators are so protective and why it’s important to be mindful and respectful of their work.
A lot of the time, infringements aren’t intentional. If you find that an error has indeed been made, acknowledge it and learn from this lesson.
It pays greatly to be kind on the internet. A sincere attitude is helpful in establishing positive relationships and opening new doors.
This story is part of a series investigating the unseemly tactics of copyright trolls and their impact on creators and users. See our other features:
• Image Copyright Trolls: The Unseen Tactics Lurking In The Backdrops Of Online Photos
• For Photographers & Creators: Was Your Photo Stolen? Regain Control Without Hurting Your Online Reputation
Resources
Reading material
• US Copyright Office: “Can I Use Someone Else’s Work?”
• US Copyright Office’s Fair Use Guide
• Terralex’s Cross-Border Copyright Guide
• Thomson Reuters’ Copyright Litigation Global Guide
Free reverse image search tools
• TinEye
• Google Images (for desktop browsers)
• Labnol.org (Google Images search tool for mobile devices)
• Pixsy (account required)
• Reverse Image Search App (iOS app)
• Reverse Image Search - Multi (Android app)
Pro bono assistance / affordable claims
• US Copyright Claims Board (fee: $40, no lawyer needed)
Established in 2022, the US Copyright Claims Board (CCB) is “an efficient, streamlined way to resolve copyright disputes involving claims seeking damages of up to $30,000 and is designed to be less expensive and faster than bringing a case in a federal court.” Besides claims of infringement, it also hears arguments of non-infringement and “misrepresentation” in notices sent under the Digital Millennium Copyright Act (DMCA).
Cases are handled online to simplify and accelerate the stressful process for claimants. The filing fee is just US$40, and only basic documents are required.
To prevent copyright trolls from exploiting its services, the tribunal sets a limit for the number of claims any party can file in a single year. Parties or representatives who have “repeatedly acted in bad faith” with their applications will also be restricted from submitting further filings for a year.
While no legal representation is necessary, the CCB also has references for pro bono assistance for anybody who wishes to file a claim with legal counsel.
• American Bar Association Free Legal Answers: virtual legal advice clinic that enlists pro bono attorney volunteers to answer questions for free
• UK Chartered Institute of Trade Mark Attorneys IP Pro Bono scheme for small businesses in intellectual property disputes
• European Union Intellectual Property Office’s free personalized IP support program
• Australian Legal Aid ACT Helpline: free, confidential phone service to connect to a paralegal
• Singapore Intellectual Property Office’s IP Legal Clinic (initial fee is required but will be reimbursed later)
• International Trademark Association Pro Bono Clearinghouse for more pro bono referrals around the world