(Updated) Receiving a copyright claim letter from a photo stock house can be an alarming and daunting experience for many individuals. The Internet is an expansive repository of visual content, and it’s a common misconception that most images found online are free to use without permission. However, the reality is that the bulk of these images are protected by copyright law, and the mere act of copying them constitutes infringement.
Numerous individuals mistakenly infringe upon copyrights simply because they don’t understand copyright law. Others incorrectly assume that using photos is fine as long as they aren’t making money from using the images. Given these widespread misunderstandings, it’s not surprising that there is a lot of copyright infringement online.
So why aren’t there an overwhelming number of copyright infringement cases in the courts? Well, there are a couple of reasons for this. First, for most copyright claims, the potential damage awards aren’t high enough to justify hiring an attorney to litigate the case, unless the work can receive statutory damages by being registered with the U.S. Copyright Office. (For more on this, check out our article: Can Statutory Damages Be the Secret Weapon for Artists in Copyright Lawsuits?). Most Federal Courts have determined that infringers only need to pay the fair market value (FMV) of using the artwork or photos, which can be pretty low considering the abundance of affordable images available online.
Second, many copyright holders understand that these offenses are often unintentional, and they’d rather resolve the issue amicably than get into a legal battle. This might involve simply asking for the work to be taken down or requesting a reasonable licensing fee for its use.
As a result, legal action is usually reserved for situations where the copyright holder has suffered significant harm, the infringement was clearly intentional and meant to deprive the copyright holder of potential revenue, or the infringer has gained some other benefit that should rightfully belong to the image owner.
However, there’s one notable exception to this general trend: stock photo companies.
Stock Photo Companies and Their Aggressive Copyright Claim Tactics
Stock photo companies, such as Getty Images, Shutterstock, Adobe Stock, and others, often take a less friendly approach when it comes to infringement. These companies manage millions of images and routinely target infringers, sending copyright claim letters designed to scare them into paying hundreds of dollars more than they might actually owe in damages, or risk facing an even more expensive lawsuit.
Many people who receive these letters lack knowledge about copyright law and can’t afford the high costs of hiring an attorney to handle the case. As a result, they often choose to pay the demanded fee as the path of least resistance. By using these scare tactics, companies like Getty Images can rake in substantial profits from their copyright claim demand letters.
So, what’s the best way to handle one of these demand letters if you receive one?
Strategies and Tactics for Responding to a Copyright Claim Demand Letter
First and foremost, before you even think about responding, make sure you’ve removed the image from your site. If your use of the image was indeed infringing, it’s best to start by fixing the problem. When you do respond, keep it professional and cordial. There’s no need to get hostile or indignant. The people handling these claims are just doing their job, and the company’s profit is based on volume. They have little incentive to drag out an action or take it to court. Give them a reason to wrap things up quickly, and they’ll likely move on to the next case. If you irritate the staff, you’re only giving them a reason to make your life more difficult.
Begin your response letter with an apology, explaining that any use of the image was unintentional and that you were unaware of the infringement. Let them know that as soon as you were made aware of the issue, you removed the image pending the outcome of these discussions. From there, you can start crafting a narrative that accomplishes two things: first, it shows the company that even if there was an infringement, their damage request is too high; and second, it communicates that they need to provide certain information before you’ll even consider making a payment.
Keep in mind that the more time the law firm has to spend on your case, the less money they make. Your goal is to make moving forward not worth their while.
Research stock photos to determine fair market value.
Calculating Fair Market Value
As mentioned earlier, courts have determined that in infringement cases like this, the infringer is only responsible for damages based on the Fair Market Value (FMV) of the image, not the company’s asking price. So, you’ll want to demonstrate what a reasonable FMV would be for the specific image in question and show that it is lower than the fee they are asking you to pay.
To determine the FMV, search for similar images on stock sites like Deposit Photos, iStock Photo, or Dreamstime. These sites typically operate on a membership basis, where users either pay a monthly fee for unlimited downloads or purchase a block of credits that can be applied toward image purchases. Most web-resolution images should only cost a few dollars. Be sure to include some Getty-owned sites in your search as well. Find 10-15 images that are substantially similar to the infringing one. By averaging their prices, you can establish a reasonable FMV. While this may not be a legal standard, it will be sufficient for the purposes of your response letter.
An example of a list item might be:
- iStockphoto: “Puppy ready for a bath” (available on iStockphoto for 2 credits or $4.00): [URL]
Once you’ve compiled your list and calculated the average price, you can use this information to make a counteroffer based on the FMV. This approach demonstrates that you’ve done your research and are willing to pay a fair price for the use of the image, but also makes it clear that you won’t be intimidated into paying an inflated fee.
Navigate copyright claims by understanding the process and making informed decisions.
Requesting Proof of Ownership and Rights in a Copyright Claim
Assuming the stock photo company doesn’t accept your counteroffer, your next step is to ask them for information that proves they have the right to pursue this copyright claim. Keep in mind that the firm you’re dealing with likely makes their money on the volume of cases they handle, with slim margins. Any case that drags on for too long becomes a losing proposition for them. By making the copyright claim more complex and time-consuming, you increase the likelihood that they’ll simply drop the matter. Here are some examples of information you might want to request:
- Proof that the stock photo company has the right to manage the image in question.
- Proof of proper copyright registration and the chain of title for the image.
- An explanation of their calculations for determining the current sales price.
- Sales data for the image.
With any luck, the copyright claim will end after this rebuttal. However, you may receive another letter or two. If this happens, respond by reiterating your counteroffer and reminding them that you requested information that they have not provided. If the letters keep coming, you may want to consider having an attorney write a response on your behalf, as this will likely carry more weight. Of course, if your actions were particularly egregious or the copyright claim demand is for a significant sum, it’s best to hire an attorney right away. But for your typical stock photo company copyright claim demand letter, the tactics outlined above should prove useful.
Sample Response Letter for a Copyright Claim
When faced with a copyright claim demand letter from a stock photo company, it’s crucial to craft a well-structured, professional response that addresses the claim, challenges any excessive demands, and proposes a fair settlement.
However, it’s important to note that if the stock photo company is seeking statutory damages, which may be available if the copyright was registered promptly, the potential financial implications could be more significant. In such cases, it is highly advisable to consult with an experienced intellectual property attorney before proceeding.
If statutory damages are not being claimed, the sample response letter provided below can serve as a template for engaging with the stock photo company, demonstrating your willingness to resolve the issue amicably, and protecting your interests by requesting relevant information to support their claim.
[DATE]
Copyright Compliance Team [STOCK PHOTO COMPANY NAME] [ADDRESS] [CITY, STATE ZIP CODE]
[STOCK PHOTO COMPANY] Case Number: [CASE NUMBER]
To Whom It May Concern:
Thank you for your letter dated [DATE] notifying [COMPANY NAME] (“SHORT COMPANY NAME”) that the website [WEBSITE NAME] (“Website”) may have used an image represented by [STOCK PHOTO COMPANY], without authorization.
If the alleged copyright infringement did take place, be assured that it was entirely innocent and unwilling. However, until this matter is resolved, and as a good-faith gesture, the potentially infringing image has been removed from the Website and any other location on our server, including any server backups.
While we do not admit any guilt or wrongdoing, we are willing to offer a reasonable settlement based upon the fair market value of the image, as a proposed licensing fee does not determine copyright infringement damage awards. As noted in Davis v. Gap, Inc., 246 F.3d 152 (2d Cir. N.Y. 2001):01):
“[C]ourts have construed “actual damages” by examining the fair market value of a license fee that the copyright owner would have obtained for the infringer’s use of the copyrighted material.” The question is not what the owner would have charged, but rather what is the fair market value.
We have found dozens of nearly identical or similar images that could easily replace the image at issue here. In some cases, the photos are available for a fee while others require credits. Below find some of the many functionally identical images from comparable stock photo sites. All prices listed are for sizes equivalent to the image in question, approximately [SIZE IN PIXELS].
“[IMAGE NAME]” (available on [STOCK PHOTO SITE] for [Price or Credits]: http://[LINK TO IMAGE] “[IMAGE NAME]” (available on [STOCK PHOTO SITE] for [Price or Credits]: http://[LINK TO IMAGE] List at least 8 images
Based upon our analysis of easy-to-find comparable images to the one at issue here, we calculate that a small sized, unremarkable image of a [IMAGE DESCRIPTION], has a fair market value of [FAIR MARKET VALUE]. As such, we are willing to offer [STOCK PHOTO COMPANY] $20.00, which is equivalent to the minimum 10-credit purchase on [STOCK PHOTO COMPANY]’s [STOCK PHOTO SITE].com site. We hope our offer will amicably and expeditiously close this matter.
If you choose to reject the above offer, we ask that you provide the following information to establish your rights to the Image and to further support your settlement demand amount.
- Proof of [STOCK PHOTO COMPANY]’s right to manage the Image.
- Proof of proper copyright registration and the chain of title for the Image.
- A clear explanation of how [STOCK PHOTO COMPANY] has determined the valuation of this image as being so far above comparable images.
- Sales data for the Image for each size and use.
- Details of your costs incurred related to the pursuit of this case.
We will expect and require the above information before proceeding further. Thank you again for notifying us of this alleged infringement. We respect and appreciate the fair and reasonable application of copyright law. I hope you find this settlement offer adequate to close this matter prior to both parties investing more time and resources.
Sincerely, [NAME] [COMPANY NAME] [TITLE]
By utilizing this sample response letter as a guide, you can effectively communicate with the stock photo company, propose a fair settlement based on market value, and request additional information to support their copyright claim. Remember, the goal is to resolve the matter amicably and efficiently, while ensuring that your rights and interests are protected throughout the process.
