In order to avoid being a victim of a “copyright troll,” businesses need to be vigilant about the content they post on social media, websites and other promotional materials.
Copyright trolls intentionally make their attractive content easy to find, enticing unsuspecting users to re-post the copyright-protected materials without permission. Copyright trolls then demand payment for the unauthorized use under the threat of a copyright infringement action.
While a social media presence and maintenance of website are necessary components of any modern business, small businesses typically have limited budgets for website design and marketing. Often, a business owner or employee wearing many hats is tasked with marketing and promotion. In creating and maintaining websites, social media posts and other promotional content, businesses commonly search the internet for images, quotations, music and formatting to complement their promotional message. The easy availability of images and music clips on the internet may lead to the false belief that such content is available for use or is otherwise in the public domain. The reality is that such content is nearly always subject to copyright protection, and copyright trolls who are eager to pounce on unsuspecting infringers.
Copyright trolls have become adept at creating and registering content with the Copyright Office that evokes popular business concepts. These could include images of famous landmarks, attractive people in a boardroom, a city’s skyline, pictures of nature, or cute animal photos. It could also involve music, drawings, quotations, sketches and stylistic formatting. Copyright trolls place this content on the internet where it can easily be found. Copyright trolls then use sophisticated reverse image search technology or other algorithms to identify infringers that have used the copyrighted materials without permission and demand a payment for the unauthorized use. Due to the threat of statutory damages, the payment demanded is usually far greater than the amount a user would have paid for a license obtained in advance.
Demands from copyright trolls should not be ignored. Though they may appear unseemly and similar to an illegitimate phishing attempt, copyright owners do have legitimate claims under the existing laws. Ignoring the demands of a copyright troll will not make the problem go away and could actually lead to demands for higher payments. While it will likely be necessary to pay some amount to the legitimate owner of a copyright whose materials were used for a commercial purpose without permission, it may be possible to negotiate the amount of payment. If the use was minimal and the initial demand from the copyright owner is exorbitant, victims of copyright trolls should not be afraid to push back on an unreasonable demand. If the use was arguably a fair use, further pushback may be appropriate.
So how to avoid being the victim of a copyright troll?
The most basic answer is vigilance and education. Because of the unlimited amount of information available with just a few keystrokes, many people do not consider that most of the content available through a search engine was created and is owned by someone else. Contrary to one common belief, providing attribution to the owner of copyrighted material does not protect an unauthorized user from liability. Anyone posting content on behalf of a business should be cautioned to avoid the use of any images, music, quotations or formatting that was not created by the company, licensed by the company or that is in the public domain. Internet searches can be conducted to specifically find content that is in the public domain and can be used freely without a license and without the need to pay a royalty.
Even if website creation, social media posting or other marketing activities are handled by professional outside vendors, the company whose goods and services are being promoted can be liable for any copyright infringement. Accordingly, companies should ensure that they have the right to use all the content posted on their behalf, and companies should be sure their outside vendors are obligated to indemnify them in the event some content used by the vendor infringes on a third party’s copyrights.
While expanding technology will likely exacerbate the trend of copyright owners shaking down unsuspecting users of their content, a little bit of knowledge and vigilance can protect businesses from becoming the next target of a copyright troll. For more information on copyrights and intellectual property, contact Max Sneyd, chair of the Kerr Russell Intellectual Property practice group.
About the author:
Max Sneyd focuses his practice on assisting clients with intellectual property protection, contract formation and negotiation, and entrepreneurial growth. With 20 years of experience, he leads the firm’s Intellectual Property practice group. He also assists clients on intellectual property litigation, licensing, business torts, entertainment law, supplier disputes.
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