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I've been receiving threatening letters from a law firm regarding a meme I posted on my blog 2 years ago. Turns out the image was derived from a photo by Agence France Presse. I took it down immediately but they claim I owe $938 for the infringement. I can't pay this amount -- my blog makes no income -- and I originally thought it a scam. When a law firm called I told them they wouldn't see a penny of this blackmail money. Wouldn't this be covered by fair use?

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    1) Where are you (a resident of)? 2) Where is the law firm from? 3) Has the claim mentioned litigation, and if so, does it mention where? – sharur Jul 6 '18 at 18:31
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French law protecting authors' rights are fairly strong, and there is no doctrine of "fair use" there. Even in the US (where "fair use" is probably the biggest exception to copyright), it is unlikely that unauthorized distribution of a photographic work would be found to be fair use. It would have a significant effect on the market, and the amount of copying was (apparently) quite substantial (i.e. the whole photo?). However, it is possible that you could prevail on a fair use defense, as in Bramer v. Violent Hues. It probably comes down to exactly what the original photo was of and used for, and how you used it (which is where your attorney will tell you whether you should save yourself the expense of a trial, or is it worth it to fight it).

  • It was a popular meme featuring part of a photo of an international politician (not French) that was widely distributed at the time. In my case, I used it to illustrate a post about that politician. This was a totally non-profit blog. How can they extort money from me here in the US, when I complied with their request to take it down? And isn't $938 a completely unreasonable amount? – user18905 Jul 6 '18 at 18:16
  • And isn't anyone who posts any kind of image content on the web believing fair use at a serious risk of financial destitution? – user18905 Jul 6 '18 at 18:25
  • @user18905: you are a US resident then, where is the law firm from? And if they mentioned litigation, did they mention where that would take place? I.e. France or the United States? – sharur Jul 6 '18 at 18:33
  • The law firm is in California, I believe. They threatened me a $30K max penalty if I didn't pay up immediately, but didn't go further than that. I assume they must be pursuing multiple parties since this was a very popular meme. – user18905 Jul 6 '18 at 18:35
  • Furthermore, it was about a year ago that I got 3 letters regarding the issue. None of them were registered mail so I assumed it was part of a scam. – user18905 Jul 6 '18 at 18:37
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Well, the statute of limitations on a civil copyright infringement claim in the US is 3 years, so if it has already been 2+ years, then you could always wait to see if they file suit. 17 U.S.C. 507(b).

The $30,000 max penalty is the max for non-willfull statutory damages, which are damages selected in lieu of actual damages and are set by the judge in an amount between $750 to $30k. 17 U.S.C. 504(c). If the judge believed that you had no reason to believe that your use of the image was an infringement, then the judge can reduce the statutory damages to as little as $200. Id.

Further, statutory damages are only available to copyright owners of published works if the owner registered the copyright within three months of publication, or if not within that three month period, then before the infringement occurred. 17 U.S.C. 412(2). So, they may not even be able to seek statutory damages, and no attorney is going to spend time and money suing you over de minimis actual damages.

Based on my experience as an attorney, it is extremely unlikely that they will sue you to recover $938. Even the full $30k may not be enough to cover the fees for discovery and a trial, and that amount is at the discretion of the judge. You sound like an innocent infringer and the judge would be much more likely to award the minimum/low statutory damage amount even if he didn't think you qualified for the reduced $200 damages.

If you choose not to ignore them and hope they don't sue before the statutory deadline, then you should ask for a copy of the Copyright Office's certificate of registration. The certificate of registration should include an effective date and other identifying information related to the work and the copyright holder. Tell them that you want the information to be sure they are not a scam/may have a legitimate claim. Once you have the registration certificate you can determine whether or not they could pursue statutory damages.

In the event they do sue you, definitely don't ignore the complaint and definitely hire a lawyer to respond. Your potential defense based on the statute of limitations is an affirmative defense and must be plead in your answer or it will be waived.

  • Mr. Lawyer, could the OP also file an anti-SLAAP motion of dismissal? It seems like this is more about silencing a critic of a politician than it is about actual damages from my read. As I understand it, California is quite favorable to the defense with regard to anti-SLAAP motions. – hszmv Jul 9 '18 at 20:21
  • I doubt it. First, copyright claims arise under federal law and thus would be brought in Federal Court rather than state court. Second, it sounds like the copyright holder would have a valid claim for infringement, so the claim isn't frivolous. Their problem is that they likely won't win enough money damages to justify the time/cost of filing a lawsuit. – KDavis Jul 10 '18 at 11:29

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