DISCLAIMER: Below is merely a recounting of a recent copyright troll encounter followed by questions from Fatstacks readers answered by me. None of the content here is to be construed as legal advice. If you have or anticipate a legal issue, please consult/hire an attorney.
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How’s this for a Merry Christmas?
On December 3, 2019, I received an email from a copyright and licensing agent (aka copyright troll) stating that I owed them (their clients) $44,000 USD for copyright infringement for 44 images published on one of my niche sites.
I’ll spare you all the legalese, but basically, the agent said unless I can show that I have permissions and/or licenses to publish these images, that I’m on the hook for $44,000 USD which is the cost of a retroactive license.
Here’s part of the email (just so you know I’m not making this stuff up):
That’s a hefty sum of money. What gets my goat is this troll doesn’t know whether I have a license or not. I have to prove I have a license (which I do for all but one image). Hopefully one day trolls will have the onus to prove from the outset that a license does not exist and if an improper allegation is made, the troll is on the hook for fines. Fat chance of course, but one can dream.
Up until this lovely email, I had only received one copyright infringement claim for a YouTube video I embedded (yeah, this lawyer was totally clueless). I dispensed of that matter quickly at no cost to me except for my precious time. Unlike the lawyer, I couldn’t invoice him $500 for the wasted 30 minutes resulting from his utter incompetence.
This new claim is on another level given the amount of the demand.
Here’s how it played out.
I have a file that contains downloaded emails that grant me permission to use many images I use across my sites. I have thousands of additional emails in Gmail granting me permission from thousands of copyright holders (it’s sure nice Gmail is so searchable). All in all, I had written permission to use every image except one.
I ensure that with every image I publish, there’s a way to track it to the entity or person who grants me said permission.
I checked out the list of images that that agent set out inquiring whether I had a license.
Lo and behold, within 20 minutes I had rounded up every email permission that covered every image except one. 30 minutes later, I completed my written response to every image in the list and attached all email permissions. It was a lousy 50 minutes of work, but I had no choice. It was that or pony up 44 large. I figure one hour of drudgery was worth 44 grand.
But dang, one lousy image slipped through the crack.
That one image slipped through the crack because it was an image used in a guest post. My guest post guidelines clearly state that the guest contributor must have permission/license for every image.
However, I got sloppy and did not require written permission. That was my bad. As publisher, I’m on the hook.
After some rounds of negotiations, I settled with the agent for $600 USD for a retroactive license for that guest post image.
All in all, I came out just fine. Had I not been diligent in getting proper permissions/licenses for all my images, I could have been on the hook for $44,000. While that would probably have been negotiated down some, unless I was willing to litigate, I’d still have been out-of-pocket at least $20K (probably a bit more).
1. Get permissions and/or licenses to use images on all web properties under your control. I use Shutterstock for many images. If not Shutterstock, I get email permissions to use images. I then download and file away those email permissions. This practice saved the day. Merely giving attribution (i.e. source link) is not enough. You want written permission.
2. If you accept guest posts on your site and the contributor submits images, require they provide all permissions and/or licenses necessary for those images. I failed to do this for a guest post and it cost me $600.
3. You can negotiate the retroactive fees if you receive a demand.
4. While it sounds like a lot of work and money to get permissions upfront, it’s a very worthy use of your time and money.
5. Copyright trolls are running image recognition software 24/7. This software will only get better. More trolls will enter the fray because there’s lots of money to be made and it’s relatively easy.
6. It’s unfortunate that the legal system is so complex and costly. This pretty much rules out litigation because you end up spending more on lawyers and litigation than it costs to pay the demand fees. The Trolls know this. That’s their leverage.
7. It’s also unfortunate that such trolling software and agents (trolls) put the onus on publishers to prove innocence. The legal system is the same. Anyone can sue anyone. The defendant must prove innocence. In this case, it was up to me to spend nearly one hour putting together a detailed email response. I’m not complaining because I know other publishers have had to pay huge fees, but it still sucks to wasting time on this stuff.
8. Sometimes I suspect the actual copyright holder who uses the troll service has no idea what the trolls are doing. The photographers (or whoever holds the license) hires the troll, uploads images and the troll fires up the software. I suspect the software auto-generates the list of found images, URLs where the images are published and then the troll sends out an email with the auto-generated list. What’s odd about this is that several photographers who were in the list had submitted their work to a press distribution service that I belong to which brings publishers and photographers together. The photographers get exposure and publishers get content. By submitting their work to these press distribution services (or the photographers’ clients submit the images to this service), there is express permission for publisher members to use the images as long as attribution is properly given per the stated requirements.
9. If you receive a hefty demand and you don’t have a license or permission, hire a copyright lawyer. There are defenses available to you and ways to significantly reduce the fee.
Therefore, while photographers (license holders) are keen to crack down on infringement, what ends up happening is that those who do get a license fall into the claws of the automated process. In other words, there’s no human oversight so folks like me end up having to waste time doing this.
What can you do to fight back?
I’m not a copyright attorney so I don’t know the legal defences in these situations. The first step is hiring a copyright attorney if the fee demand is large.
I had a good outcome so I’m not going to do anything, but I was tempted to publish the names of all the photographers included in the original list asking that I prove that I had permission to use the images. This would hurt them because these photographers were hired by clients. Those clients pay for the professional photos to use for marketing purposes including getting their photos distributed featuring their work. If word got out that particular photographers were going after publications that give the clients free exposure, those photographers would no longer get hired.
I decided against this because at the end of the day these photographers dropped their claim probably because it would hurt their clients. Good reason prevailed so there’s no need for me to do anything.
Let me illustrate with an example.
A growing boutique woman’s clothing line hires a professional photographer to take photos of models wearing the clothing. While the photos will likely be used on the clothing boutique’s sales pages, the boutique also loves it when these photos of its clothes are featured positively on other sites and in social media. That’s free marketing (assuming link attribution and proper credit).
Now, here’s the tricky part. Many photographers retain the copyright of the images and merely grant their clients a license. The license may include distribution of the images, but it may not. The more expansive the license, the higher the fee charged by the photographer.
Many such clients don’t realize that photographers retain copyright (unless specifically contracted otherwise). Clients get the photos, put them on their site and are delighted when other publications publish them.
In the meantime, the photographer hires a copyright troll with software and starts going after these publications that give the boutique clothing client free marketing and exposure.
Essentially, the photographer ends up sabotaging the clothing boutique’s marketing (unbeknownst to the clothing boutique). In some cases, unbeknownst to the photographer who doesn’t realize the troll uses software that carpet bombs their client’s marketing.
The publisher gets an outrageous demand for infringement. Baffled, the publisher contacts the clothing boutique saying “Sorry to trouble you, but you said it was okay for me to use the images of your clothing on my site. Today I received a copyright infringement demand for $5,000 for those photos.” The boutique is clueless about this and contacts the photographer. The photographer says “I own the copyright.” Or, the photographer says “oh, I didn’t realize that would happen. Sorry, I’m okay with you having other sites publish those photos.” Either way, the Boutique owner is choked. I sure would be if I owned the boutique. In the meantime, the publisher removed the images hurting the boutique’s marketing efforts.
Photographers who work for clients are shortsighted when they hire copyright trolls. Do you think the boutique is going to hire that photographer again? Nope. I wouldn’t.
Photographers have to realize that photography is like web design. It’s almost a commodity service. Everyone and their dog is a professional photographer, just like anyone who can use a mouse can put up a website.
Sure, there are some photographers who are very, very good, can command huge fees and insist on retaining copyright. Or they’re freelance and sell on spec and therefore retain copyright.
But generally, most photographers have modest talent and work for clients for modest fees. Yet there’s a market for the middling photographers because many clients don’t need the greatest photos in the world. Moreover, middling photographers with decent equipment can produce decent photos (as in good enough). There are tons of them who moonlight hoping one day to make a living doing photography.
What this means is that clients need to realize that they should and can require that copyright transfer to them. If the photographer refuses, hire one of the other 50 applicants no doubt received from one “photographer wanted” ad.
Here’s what publishers who get caught in the crosshairs can do.
One option is to contact all clients (i.e. the boutique in my example) and explain what their photographer did and that consequently, you must remove all images from the site/social media which is too bad because they were popular with your audience. Be very polite and let them know that if they hire a different photographer who doesn’t go after publishers that you’d be happy to promote again. Chances are the client will be choked and will go to the photographer with a big fat WTF?
If you prefer to go nuclear (be very careful here and do this only under an attorney’s advice), publish articles targeting photographers’ names explaining what happened. Simply state the facts of what happened. Applied to my clothing boutique example, you would state that the boutique granted you permission to use the images. The boutique was delighted with the exposure. Out of the blue, the photographer made a demand for copyright infringement which resulted in you having to remove all that free marketing from your site. If you ended up paying a hefty fee, say so.
Do not say that the boutique owned the copyright. You don’t know that. Simply state the facts. Remember, if the photographer owns the copyright, they are legally in the right. The point here is that practically speaking, it’s bad for a photographer’s business if word gets out that they go after publishers who give their clients free marketing.
What this does is other clients will avoid these photographers. Who wants to hire a photographer who will go after publishers and influencers who promote their business? Nobody, that’s who. Even if the photographer has the legal upper hand, just because they can, doesn’t mean they should. Business practicality can and should sometimes trump legal rights. That said, if a photographer wants to torpedo their photography business because “they’re right”, by all means, go to it.
The thing is that often the photographers have no idea that the trolls operate as they do. Photographers believe there is some level of oversight when there is none. They retain trolls to deal with some copyright infringement but unfortunately, the baby gets thrown out with the bathwater. They don’t understand that trolls carpet bomb instead of using a sniper. Collateral damage doesn’t figure into the equation.
Historically and technically photographers own the copyright unless stated otherwise in the contract. This needs to change and is changing because clients expect to be able to do a lot more with the images they commission than be restricted to using them on only their own website.
More and more clients are requiring and getting copyright of the photos and videos they commission. This needs to be set out in the contract. I require copyright to transfer to me entirely. I will NOT hire a photographer or videographer who doesn’t agree. If they refuse or ask some outrageous amount for passing on copyright, I hire someone else. I can get 50 applications on Upwork, Craigslist and Freelancer in 48 hours.
I don’t need haute couture photos. I just need them to look decent and anyone with some decent equipment can do that.
NOTE: Do NOT do the nuclear option above until you’ve resolved all matters and have it in writing that it is resolved. I have an email that expressly says all matters are resolved and that my permissions were sufficient. All claims but one were dropped. I paid the negotiated fee ($600) and it’s now done.
If you’re dealing with a client/photographer situation (like the boutique situation above) and you don’t have permission from the boutique, it’s worth asking after the fact. The boutique might go to the photographer and ask the photographer to drop the claim. Only do this under the guidance/advice of a lawyer.
What about infringements from guest post contributors?
The publisher is on the hook. I am for this one image. I paid the fee for it. However, I’m going after the person who submitted the guest post. I doubt I’ll get anywhere, but I figure it’s worth trying. Technically, they aren’t on the hook (as publisher, I am), but I was clear they needed to have a license for the images they published on my site so I might as well ask. Maybe they’ll pay 50%. Doubtful, but worth asking.
Things are changing in the digital age (I think)
In time, photographers who do work for clients will realize that hiring trolls can hurt their photography business. Clients will eventually get wind of what’s happening and that their free marketing is taking a hit. Many photographers don’t intend for this to happen but the automation inevitably results in more hassle and lost business than it is worth.
Moreover, thanks to digital photography, professional photographers are a dime a dozen. This gives clients the upper hand who can demand that they get a copyright for the photos. This should continue to be the case.
However, we are in a transition phase between old-school photographer/client arrangements and the digital age. I believe market forces will result in this draconian licensing to lighten up. Unfortunately, it will take a long time for the courts to catch up and until they do, many publishers and photographer clients will take a hit.
There are always exceptions. This article is largely geared toward photos that are commissioned by individual clients who commission such photos for marketing purposes. Part of marketing is getting these photos featured on as many websites/social media channels as possible. Think realtors (they want sell houses), product sellers, clothing designers, hotels, etc.
This does not apply to paparazzi, landscape photographers … basically, photographers who take photos for the express purpose of selling licenses to multiple end-users. In this case, photographers retain copyright and rightly so. They essentially work on spec and should be able to sell as many licenses as they wish. These are the types of photos that copyright trolling can properly serve… with a caveat. These photographers need to provide the trolls a list of licenses granted so that those license-holders don’t receive a nasty infringement letter. Trolls should be instructed by photographers to use a scalpel instead of a bomb. Of course that costs more money, which photographers won’t pay for so we’re back to carpet bombing.
Finally, you can’t assume anyone or any business will permit you to use images. While generally, you’d think that a clothing boutique would have no problem with you featuring its clothing photos on your site, you can’t assume this is the case. You must ask them first unless you enjoy paying hefty infringement fees.
Who is the troll that came after me?
As tempted as I am to out them, I’m not going to. I normally don’t out subjects of my blog posts usually because such exposure can be far more damaging than is warranted.
However, that’s not my reason for doing so here. I don’t need to poke the bear. Since trolls can make my life miserable by alleging anything they want and forcing me to spend hours and hours putting together a defense, I’m better off avoiding such unpleasantness. If I were an outfit with far more resources including an in-house legal team, I’d be more provocative, but sadly I’m merely a one man band.
After I sent this post to Fat Stacks email readers, I received many questions. As I always try to do, I answered each one but in this case I suspect many people may have similar questions so I’m publishing the questions and answers below.
Is it okay to use images from free stock photo sites like Pixabay, Unsplash and Pexels?
I would think it is but I don’t use those sites and haven’t asked whether there is any level of assurance by these outfits. The best thing to do is ask them if they will handle copyright infringement claims.
What about photos from Canva or stencil?
I suspect they’re fine because they’re established outfits and probably have the necessary redistribution licenses, but it never hurts to ask.
What about paid stock photo sites like DepositPhotos and Shutterstock?
I’ve used both. I still use Shutterstock. I suggest you ask them but I’m sure they will go to bat for you if a claim is made against you and you had proper licensing in place when you obtained the images.
I’m a big believer in asking many questions and getting email responses to protect my business. It takes time and isn’t fun, but when you need the confirmations/permissions it’s a lifesaver.
How quickly do trolls discover images and issue a claim or notice?
Please keep in mind I’ve only received one such notice (the other was for an embedded YouTube video). For the image copyright issue, those images had been on my site for over a year. Whether they detect images immediately or whether it takes time, I have no idea.
If I live outside the US, can trolls come after you and collect from you?
Likely they can if they’re prepared to pursue it in the courts. If they get a court judgment in the US against you, they can likely seek out your US revenue sources and obtain money owing to them via court judgment from those sources. An example would be getting a court order to collect from AdSense. I’m not saying this will happen, but when the courts get involved, anything can happen. Court orders are very powerful.
If I purchased a site, is there a way to verify whether images were obtained legally?
I hate to tell you this, but if you bought a site I don’t know of a way to verify whether images were obtained legally if you did not get any verification from the seller. This is a problem when buying a website.
When buying a website, it’s a good idea to get a signed representation from the seller that all images (all content) comply with copyright law (as in all images are used with the proper license). You definitely would want a lawyer to draft this document up or review one if provided to you by the seller review. If you have such a representation by the seller, in the event you receive a copyright infringement claim, you may have recourse against the seller. However, there’s the practical aspect of going after sellers and that is it may be impossible to actually get money from them. It’s hard to collect money from broke folks.
Why didn’t you just tell the troll “I do have licenses – Fuck off!”
As tempting as it is to tell them to fuck off, the problem with doing that is they may file a lawsuit and even if I win, I’m out legal fees which is a lot of money. I prefer not having to litigate.
Moreover, and this is a good tip – when dealing with such conflict-arising issues, always be polite. These emails find their way into courtrooms and judges may not like such responses.
Why don’t you just ignore them Jon – maybe they’ll just drop it?
I could but the troll could then file a lawsuit and now I have to hire a lawyer to defend litigation. This is expensive. If I ignore the lawsuit, they get judgment and will ultimately collect the money plus potentially legal fees and who knows what else.
I much prefer dealing with these matters than ignore them. I don’t wish to be looking over my shoulder. I certainly don’t wish to receive a court ordered judgment for thousands or tens of thousands of dollars just because I didn’t want to deal with a simple claim.
Let me wrap with yet another suggestion that if you have legal issues, consult and/or hire an attorney.
Jon runs the place around here. He pontificates about launching and growing online publishing businesses, aka blogs that make a few bucks. His pride and joy is the email newsletter he publishes.
Hyperbole? Maybe, but go check it out to see what some readers say.
In all seriousness, Jon is the founder and owner of a digital media company that publishes a variety of web properties visited and beloved by millions of readers monthly. Fatstacks is where he shares a glimpse into his digital publishing business.