Copyright infringement demands involving photographs have become increasingly common. A business may receive a letter asserting that a photograph appearing on its website, social media account, or promotional materials was used without authorization and demanding thousands of dollars to resolve a dispute.
If you receive one of these demands, the demand letter is only the starting point. Before evaluating settlement or responding to the claimant, several factual and legal issues should be investigated.
1. Preserve the Evidence and Investigate the Use
The first instinct may be to immediately delete the photograph. Before doing so, preserve evidence showing exactly how the photograph appeared, including screenshots, the webpage or social media post, dates, accompanying text, and any available analytics.
Then determine who posted the photograph, when it was posted, where it appeared, how long it was available, and why it was used. A photograph incorporated into a paid advertising campaign presents different considerations than an image appearing incidentally in a social media post or on a page advertising an event that never occurred.
2. Determine Where the Photograph Came From
Understanding the source of the photograph is critical. Speak with the employee, marketing professional, web developer, or third-party vendor responsible for the content. Determine whether the photograph came from a stock image service, social media, a photographer, a customer, a prior website, or another source.
Preserve licenses, subscriptions, invoices, emails, agreements, and other records that could establish permission or explain why the business reasonably believed it was authorized to use the image.
3. Verify the Claimant’s Rights and Registration
A demand letter should not be treated as proof of the claim. Confirm who owns the photograph and whether the party making the demand has authority to enforce the copyright.
Registration should also be investigated. Is the photograph actually registered with the United States Copyright Office? When was it registered in relation to its publication and the alleged infringement? Is it registered individually or as part of a larger collection?
These questions can significantly affect the remedies potentially available to the claimant, including eligibility for statutory damages and attorney’s fees.
4. Evaluate the Claimed Damages
The amount demanded is not necessarily the value of the claim. If the claimant seeks actual damages, determine the photograph’s legitimate licensing value. What does the photographer ordinarily charge to license comparable images? Has the claimant previously licensed this particular photograph? For how much?
If statutory damages are potentially available, additional considerations arise, including the circumstances surrounding the use and any allegation that the infringement was willful. The investigation should focus on the facts rather than assuming that the maximum statutory amount referenced in a demand letter represents realistic exposure.
5. Consider Timing
The timeline matters. Determine when the photograph was first posted, when it was removed, when the claimant discovered or reasonably could have discovered the alleged infringement, and whether there were prior communications concerning the image. These facts may implicate the Copyright Act’s three-year statute of limitations and can affect both the scope and value of the claim.
6. Develop a Response Strategy
Once the investigation is complete, you can then make an informed decision about the response. Depending on the circumstances, that may mean challenging liability, requesting proof of ownership or registration, disputing the damages calculation, raising applicable defenses, or exploring an early business resolution.
The important point is simple: do not evaluate a photograph copyright claim based solely on the demand letter. A focused investigation into the photograph, its source, registration, use, timing, and actual economic value often provides a much clearer picture of the potential exposure and the appropriate response.
Attorneys at WSHB regularly assist businesses in investigating and responding to copyright infringement demands involving photographs. Early involvement of counsel can help preserve relevant evidence, identify potential defenses, evaluate claimed damages, and develop an appropriate strategy for responding to the demand.
