Copyright trolling: It is an issue that goes back as far as the onset of patenting.
It’s why Barack Ferrazzano Kirschbaum & Nagelberg partners Wendi Sloane and Scott Slavick stay hyper vigilant for not only their clients, but of emerging social media trends and technology.
“I’m not of the TikTok generation, but my kids are,” Sloane said. “I told them ‘I know TikTok.’ They went ‘You know TikTok? But, you’re too old!’
“I don’t use TikTok, but I know what it is.”
Sloane knows TikTok — a video-sharing social media application used to create short videos featuring snippets of music — because it is the latest platform brand marketers, influential online personalities and the general public are flocking to in hopes of creating the latest viral video.
But legal issues can arise for those users — or people who reutilize these videos, or photos on Instagram and Facebook, or content from Twitter — if they’re not aware of all the caveats of copyright law.
Under copyright law the exclusive rights are given to the copyright owner. The major player in copyright trolling lawsuits are photographers — especially those of the celebrity-chasing paparazzi sector — who will see their photos hit viral status, being shared on Twitter and other platforms. But if somebody decides to take that photo and use it on a website, the photographer may believe the user is making money off their property, and they will slap a lawsuit on them with incredible speed looking for a big payday.
“The trend of copyright trolls is derived by what are known as patent trolls. That has been a long-standing problem,” Sloane said. “They are just licensing companies that acquired these patents that are completely overbroad and were granted at a point in time where the patent office was not as diligent in weeding out overbroad claims that where nothing more than ideas that generally exist.”
Sloane said copyright trolling isn’t just a high-end luxury brand or social media maven issue. She represents many clients throughout a variety of industries that have “fallen prey to this problem.”
The solution: Vigilance and education.
Copyright trolls are dedicated and constantly searching for possible unauthorized uses of copyrighted work such as photographs, music and video productions. Anyone, especially companies, who use copyrighted works — even if they had no reason to know the work was copyrighted — are at risk in today’s world, Sloane and Slavick explained, because of infringement claims over content posted on their websites or social media feeds.
The majority of copyright trolls will threaten litigation over the use of the materials in hopes of accumulating high licensing fees. According to the U.S. Copyright Act of 1976, statutory damages can reach as much as $150,000 for willful infringement.
“Initially a lot of photographers realized that if somebody reproduced a copy of their photographs, they would then have an opportunity to send a letter saying, ‘pay me money,’” Sloane said. “Certainly, they are correct. You can’t reproduce somebody’s photograph for your own commercial purposes.”
Alisa Simmons, a partner at Fitch, Even, Tabin & Flannery, believes that people are savvy and try to properly adhere to copyright and intellectual property rights, especially with photographs. She, as do Sloane and Slavick, advise clients to thoroughly examine and get express permission to use the property. Fair plaintiffs who aren’t out to score cash with the threatening lawsuits do have fewer avenues to seek damages.
“You have to be careful about if a plaintiff really is a troll,” she said. “Because of the limited means by which a copyright owner can enforce their rights. If there is an infringer you have the federal court system to pursue an infringement. That litigation can quickly get expensive.”
Instilling a proactive culture into clients is the first step you can take, according to Sloane. When they receive a copyright notification, such as one online because of the Digital Millennium Copyright Act, clients need to immediately comply and take down the flagged content, trace back to see who put it up and if there are truly using copyrighted material.
“What you want to do is to minimize any indication you engaged in intentional copyright infringement,” Sloane said. “Because the amount of damages available for intentional infringement versus unintentional infringement is very different. You want to minimize any liability issue.”
Clients should know that a lawsuit can only be brought about if a copyright has actually been registered. Trolls play into the fears of companies and brands to get a payday outside of court. But if that copyright is on file and your client is in violation its time to start looking at the numbers.
“You want to determine the actual risk exposure in terms of money your client faces because you’re going to want to actually negotiate fees and get them down to the smallest number possible,” Sloane said. “Unless the copyright was timely registered you are not entitled to recover certain types of damages, in particular you can’t get statutory damages and you can’t recover your attorney’s fees.”
Know the work
Sloane and Slavick emphasize that copyright lawyers need to get in front of their clients and provide education about all the elements of copyright law. Slavick said there’s a deep lack of awareness and/or comprehension about fair use. Fair use is determined on a case-by-case basis. The same act done in a different medium or for a different reason isn’t always the same or ruled similarly. Fair use is meant to match the concerns of copyright holders with public interest in the distribution of creative works.
“It takes education. People don’t understand fair use,” Slavick said. “They have this concept that if they are not charging people to see something then they are not infringing. They are not making that next step of when you put something on your Facebook page …. you’re not charging them, but it’s helping you in commerce. It’s getting eyes on your site and in front of people.”
Slavick gets the rationale people might have when it comes to these matters, but they don’t understand the gravity of the situation because copyright laws are difficult to fully understand.
“People seem to think they’re just reporting or sharing information,” Slavick said. “(They think) ‘I’m not charging anyone for it and therefore it’s not infringing.’ That’s just not true and incorrect thinking. I can understand the logic behind it, but it’s a common misunderstanding of fair use. I hear it so often from people. But why did you show that picture? You didn’t show it for fun, you showed it to get traffic to your Facebook page. It is helping you financially. Very few things qualify for fair use. That’s where the fundamental problem comes in.”
Simmons, who focuses her work with advertising companies, said the pressure of deadlines may cause a gap in getting the legal issues squared away. Also, if they’re making an ad with some third-party outlet, did the company read and save the agreements in case an issue arises.
“If you found a neat source online, make sure to look at their licensing agreement,” Simmons said. “Lots of those are those ‘click-thru agreements’ where you agree to their terms and conditions and pay a fee and you’re off and running. It’s in that moment where it’s important to take a moment and make a PDF copy of that license and those terms and save them in a library somewhere.
Getting a copyright lawsuit delivered can be a frustrating, annoying and scary proposition, but as long companies have the right safeguards and proper legal advice the problem can be handled.
“I don’t think you can double- or triple-check too much,” Simmons said.