Copyright and image licensing demand letters

8.1What the letter claims

That a specific work, identified by a screenshot and a URL, is owned by the sender's client, that it appeared on your site, social account or marketing without a licence, and that this infringes the exclusive rights of the copyright owner under the Copyright Act.¹ The letter demands a sum, often described as a retroactive licence fee plus a multiple, and sometimes removal and an undertaking.

8.2What the law provides

Copyright exists from the moment a work is created; no registration or notice is needed for protection. The owner can sue for infringement, but must register the work with the Copyright Office before filing a federal suit.² The remedies are either actual damages plus the infringer's profits, or, at the owner's election, statutory damages of $750 to $30,000 per work infringed, which a court can raise to $150,000 per work for willful infringement or lower to $200 for innocent infringement.³ Statutory damages and attorney fees are available only if the work was registered before the infringement began, or within three months of its first publication.⁴ The Copyright Act's three-year filing period is in limitation periods: how long a claim lasts.

8.3How to judge the letter

1. Is the work theirs? Ask for the registration certificate or number and check it in the Copyright Office's public records. Ask how the sender's client owns it.
2. Did you use it? Check the URL and the date range. Keep a copy of what was there.
3. Do you have a licence? A stock-site receipt, a designer's licence, a Creative Commons term that covers commercial use with attribution. Find the paperwork before replying.
4. When was it registered? That decides whether the sum in the letter is anchored to statutory damages or to a licence fee.
5. Is fair use plausible? Commentary, criticism, news reporting and education can be fair use. Decorative use on a commercial site almost never is.

8.4What to do this week

1. Remove the work from everywhere it appears, including cached and social copies, and record the date.
2. Preserve a copy of the page as it was, and the records of how the image got there.
3. Find any licence. Ask the designer or agency that built the page.
4. Check the registration and its date.
5. Reply in writing before the deadline: removed on a date, without admission; licence attached if one exists; a request for the registration details; and, where use is clear, a proposal that reflects what the licence would have cost, or an acceptance.

8.5Settling or fighting

Where you used the work without a licence and it was registered in time, the sender has a strong claim with statutory damages and fees behind it, and a reasonable settlement is usually the cheapest outcome. Where it was not registered in time, the claim is worth roughly the licence fee, and a proposal at that level with the removal evidence attached is a serious reply. Where you hold a licence, attach it and the matter should end. Contesting a clear infringement in court costs more than any licence fee, and the fee award runs in the owner's favour if the registration was timely. Chapter 13 covers the general decision.