Copyright Trolls Explained: When Enforcement Crosses the Line
Copyright trolls are entities or individuals who attempt to enforce someone’s copyright against an unwitting infringer. These trolls know that copyright infringement is a strict liability offense. When they see that someone’s copyright might be infringed, they pounce and demand a monetary settlement via a copyright infringement claim. The most common are those enforcing copyrights on photographs posted on websites. The demand usually comes in the form of a letter or email from a law firm advising of the claim and setting forth the requested compensation. Often, the demand is usually somewhere between the cost of hiring a lawyer to defend the claim versus simply paying the requested amount.
Potential Damages for Copyright Infringement
With a copyright registered in the United States that otherwise meets the requirements of enforceability, in the case of ordinary infringement, the copyright owner could be entitled to statutory damages between $750 and $30,000, with the amount determined by the judge or jury. If the owner can prove the infringement was willful, the amount for a copyright infringement claim by a copyright troll can increase up to $150,000 per work. The owner can also receive attorneys’ fees for bringing the case.
Berne Convention Protections and U.S. Enforcement
Under the Berne Convention, copyrights created in foreign countries that are signatories to the treaty receive the same protections in the United States as works created domestically. This means a foreign copyright holder may be entitled to enforce its rights in U.S. courts, even if the work was created and first published outside the United States. However, while the Berne Convention eliminates many formalities, U.S. law still imposes specific requirements that can affect enforceability. Its always prudent to check with someone familiar with the jurisdiction to see whether the requirements for U.S. enforceability have been met.
Registration Timing and Eligibility for Statutory Damages
Whether the copyright owner is entitled to statutory damages and attorneys’ fees for a copyright infringement claim depends on whether the owner has registered their copyright with the copyright office, and when. If the work was infringed before registration, and the work was not registered within three months of first publication, then the owner may not be eligible for these statutory damages and attorneys’ fees. Sometimes, copyright trolls wait for years before making claims, so it is prudent to ask the troll whether they can prove that their client has a registration and when that registration was obtained.
Clients can perform an audit of their online assets to make sure they know where each image used came from. If provenance cannot be determined, then if the image can be replaced with one of sure provenance, then going forward there would be less likelihood of a copyright infringement claim. Each situation is fact specific, so for a consultation on specific questions, please contact Kevin Thompson through our website.
