Copyright infringement filings continue to grow with 2023 seeing a 25% increase in cases according to year end federal court statistics. This surge is driven in large part by copyright assertion entities, or “copyright trolls” who are serial plaintiffs that bring infringement claims in volume with the hope of extracting quick, nuisance level settlements without any real interest in litigating their claims on the merits.
Copyright trolls start their campaign by sending aggressive, threatening demand letters directly to individuals or businesses who are alleged to have unauthorized content on their websites—usually photographs. These letters routinely cite selective provisions of the Copyright Act that provide statutory damages in an amount up to $150,000 per infringed photo and allow for the recovery of attorney’s fees to the prevailing party. However, these letters generally ignore the fact that those heightened statutory damages are reserved only for “willful” infringement, that is, when an infringer was actually aware of the infringing activity, or the infringement was the result of reckless disregard for a copyright holder’s rights.
In fact, in situations where an alleged infringer “was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages,” to as little as $200 per work—a far cry from the $150,000 threatened in the demand letters.17 U.S.C. § 504. This “innocent infringement” is typically the more likely scenario in these cases. But those receiving copyright demand letters may not appreciate these nuances in the law—and fearing the potential statutory damages cited in the letters—will often cave to the demands of the troll and pay the full settlement proposal.
If you or your business receive a demand letter, it is best to always seek advice of counsel. In addition to giving you a full summary on the issues of liability, damages and defenses under the Copyright Act, your attorney can also examine the purported copyright and underlying chain of title to see if the asserting entity even owns the subject work.
Additionally, to avoid receiving copyright demand letters in the first place, you and your attorney should periodically conduct a copyright audit of your website to ensure that all photographs and other copyrightable content is accounted for by your actual ownership or by having a current and valid license to the content.
