I have it on good authority that when a Southerner is annoyed with you, she might say, “Bless your heart.” Where I grew up, we would say to that person, “I’m sure you mean well.” It’s not unusual for me to get a call because a well-meaning volunteer, intern, or employee posted an image on the client’s website or social media account without any due diligence. This could be a seemingly generic image of a skyline, a piece of chicken, or whatever. Now, that client has received a letter stating it has to pay, e.g., $30,000 within a week or two; failure to pay could incur up to $150,000 in damages through an infringement suit. The volunteer/intern/employee will swear up one side and down the other that the image had no copyright notice, and that there was no contact information or licensing options. Regardless, lawyers are now involved.
The best assertion against such threats might be the Copyright Misuse Doctrine which forbids the use of copyright to secure an exclusive right or limited monopoly not granted by the Copyright Office and is contrary to public policy. The New Mexico case of Harrington v. 360 ABQ, LLC outlined how to present this assertion, whether as a counterclaim or affirmative defense.
There, the defendant asserted that the photographer makes his photos available on public websites without copyright notice or contact information, just waiting for someone to use the photo without authorization. Then the photographer “demands ‘extortionate’ settlements in amounts beyond ‘market value.’” When such a person employs these “abusive litigation tactics to extract settlements,” that person is commonly described as a Copyright Troll.
The photographer/plaintiff in Harrington moved to strike the defendant’s counterclaim/affirmative defense, focused on the claim that he has threatened hundreds of persons with copyright infringement lawsuits and filed 75 such court actions, those well-meaning infringers generally paying settlement fees far beyond “fair value.” The plaintiff simply retorted that he owns these copyrights and has a right to enforce them. Of course, this is true.
However, the court stated that the plaintiff’s motion was overall “not well-taken,” which is legalese for “your arguments have no substance.” Specifically, the court stated that while the volume of infringement actions can indicate a Copyright Troll, it is not dispositive. The gravamen of the defendant’s allegation was, pursuant to §106 of the Copyright Act, the plaintiff is “not using the copyright and legal system for an authorized use, but as a method to derive income from infringement demands or suits.” As such, the court declined to dismiss the copyright misuse allegations, and the case will move forward.
While it’s good to know that there are legal weapons to be plied against Copyright Trolls, such as the Copyright Misuse Doctrine, it’s always better to do well and not simply mean well. License your images. Feel free to contact me at davefaux@dhf-law.net if you have any questions or concerns.
