In a previous post, I went over some risks of using copyright-protected images without a legal right to do so. The characters in the dialogue below are dealing with a demand letter about alleged infringement for use of an image. We join the discussion midstream.
Q: Let us assume that we infringed on the copyright by using the image, and that we really do not have much in the way of defenses. Do we have to pay what the copyright owner demands?
A: We should evaluate whether the amount demanded is reasonable, whether it would be worthwhile to negotiate, or whether you should do something different. We need to get some information to do this.
Q: What do we need to know?
A: For starters, we need to know: (1) whether the person who sent the letter owns the copyright or has the right to act on the owner’s behalf; (2) whether and when the copyright owner has registered the image with the Copyright Office; (3) when the image was first published; and (4) when you allegedly used the image without permission. We also need to know whether you made any money by using the image, and how much, if anything, the copyright owner claims to have lost because of your infringement.
Q: Why does all this matter?
A: A copyright owner usually can get its lost profits and your profits arising from the infringement, if any. Statutory damages might be an alternative. It is common for statutory damages to be greater than either side’s profits or lost profits. Whether the copyright owner can get statutory damages depends on the timing of events. The timing of events affects whether the copyright owner can get attorney’s fees added to the award if we end up in court. There also are exceptions we need to consider.
Q: What can I do to avoid this mess in the future?
A: Make sure you have the right to use any other images that you are using or are going to use. Do not wait until you get a demand letter or lawsuit about an image you are using.
This post provides general information only. This post is not intended to create an attorney-client relationship or to be legal advice about your situation. Laws change and your situation may be different. You should consult with a licensed attorney for legal advice specific to your circumstances.
© 2016 Matthew D. Macy