Practical Ecommerce

Copyright Trolls Threaten Your Ecommerce Business

Your website most likely has pictures on it. It might also have video as part of the design or to help in the sale of products. The use of these items is necessary to show your customers what the product looks like or the product’s functions. However, all too often the source of the pictures or video is not properly documented. This opens the door for “Copyright Trolls,” a term that is used to describe a company or individual that buys up the copyrights to works and then engages in a campaign to try to profit from possible infringement through intimidating demand letters.

This term does not refer to someone who is making legitimate claims for use of a photo that may have been copied from a website illegally. The two typical types of Copyright Trolls are (1) those who try to scam people by intentionally putting their works out on the Internet as “free” and then later demand money for their use, and (2) those who purchase another company’s rights (usually a company that owns a large amount of copyrights in photos) and sends out blanket demand letters to all those using the photos to see if they can prove that they paid to use the photos or videos. Some schemes may be legal and some are done through misrepresentation.

What Do the Trolls Hope to Obtain?

Money, of course. A typical demand letter will ask for $1,500 to $2,500 because it will probably cost more than that to hire a lawyer to fight the claims. Owners of registered copyrights have very strong rights to recover damages and the Copyright Troll is betting that you did not carefully document where the photos or video came from and what your terms of use are for those items. Registered copyright owners’ damages are not limited to just the actual damages that they can prove. The statute allows them to collect damages in the amount of $7,500 to $30,000 per work as the court may determine, even if you did not intend to infringe the owner’s rights. If the use is determined to be intentional, then the award of damages can be increased up to $50,000 per work. Also, the copyright owner is entitled to recover his or her attorney fees for suing you, which can add a significant amount to the damage award. These trolls use this statutory language to intimidate people into paying the lesser amount they demand.

How Do You Protect Your Website from Copyright Claims?

Document all photographs and video used on the website, including all photos used in Flash. All photos and video used in the design of your website need to be documented, even if only portions of a photo or video are used or if they have been altered during the development process. You should list all information about that photo or video, including where the photos came from, the photographer, the date you first used the photo or video, the terms of your use of the photo or video (your license agreement) and the date the license expires. You should print out and file all your license agreements in one location and make note of the photo or video to which each license agreement applies.

Summary

If you hire someone to take photos or video for you, you need to document the transfer of the rights to you and the terms of your use of such items. Under copyright law, the photographer owns the copyright interests unless those rights are transferred in writing. Therefore, if an independent contractor creates something for you, you must either obtain a license agreement to use it or obtain an assignment of the ownership rights in the photo or video. Each item should be carefully documented and filed so that if you receive a demand letter you are prepared to defend their claims.

Jeff Jacobson, Jd, Llm

Jeff Jacobson, Jd, Llm

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Comments ( 3 )

  1. Mallory June 17, 2010 Reply

    This is very informative, I really underestimated how serious just using a simple picture can be! For the most part i always use stock photos for the blog or other graphic projects (mostly iStockPhoto or Getty Images), but it really makes you think twice before just hoping onto Google images for a quick visual.

  2. ElderDepot June 17, 2010 Reply

    Thanks for the warning, this is helpful information.

  3. mikeatsky June 22, 2010 Reply

    Copyright laws smell… if it’s online, and you don’t need to ship it = it’s free! Cite the stolen work if you feel, like a bibliography of media, else the creator can find and list his works’ appearances on his own. Sites can protect people from grabbing the images (except screen capture). Less laws = less gov’t and more importantly, less lawyers.

    I take my own pictures and imaging for most items in all the stores at http://www.themuseumshops.com – i’d like credit if you steal them, but whatever…