Photo Copyright Infringement

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I Received the Photo Copyright Infringement Letter - HELP!

What is Copyright Extortion?
Know Your Copyright

Editor's Note: Any opinions expressed are those of the authors and do not necessarily reflect the views of the website owners.
Extortion is the crime of obtaining money or property by threat to a victim's property or loved ones, intimidation, or false claim of a right. (Settlement Demand Letters and Extortion)
What is extortion? Most states define extortion as the gaining of property or money by almost any kind of force, or threat of 1) violence, 2) property damage, 3) harm to reputation, or 4) unfavorable government action. While usually viewed as a form of theft/larceny, extortion differs from robbery in that the threat in question does not pose an imminent physical danger to the victim. Extortion is a felony in all states. (Find Law)
Extortion can take place over the telephone, via mail, text, email or other computer or wireless communication. If any method of interstate commerce is used in the extortion, it can be a federal crime.
Is it really extortion? It is a numbers racket, really. Send hundreds of demand letters filled with legal jargon and scathing accusations, and the odds of frightened website owners paying the hefty demand increases. As with everything on the web, there are always those who are working the system to make money. Now, there is a rise in what is called photo copyright extortion. The technology is way ahead of people’s understanding of the issue, and this has made a very lucrative opportunity for unethical lawyers and copyright owners who are making a business model out collecting on infringement claims through what is commonly called “copyright extortion”. Photographers seed the internet with their images by providing them to wall paper sites and royalty free sites. Then they sit back and wait for people to start using them and soon send out threatening demand letters demanding compensation that is excessive. In some cases, these people aren’t even the owners of the images. They send out mass letters waiting for people who are scared and will just pay rather than hire a lawyer. (BOSS Hawaii)

Fort Pulaski Panorama.jpg
Fort Pulaski Panorama, courtesy Rob Shenk

Photo Copyright Extortion
Communicating the threat

Attorneys and clients who send communications via internet or mail to a person by accusing copyright infringement and of committing a criminal act, with a demand to obtain money, would meet the legal definition of communicating with intent to extort. The following example is carefully worded by an attorney, and, although to the layperson it may appear to be extortion, it does not meet the legal definition. Communications of extortion are defined by 18 U.S. Code 876 and 18 U.S. Code 876. If you are the victim of a photo copyright extortion letter, aka infringement letter, from an attorney or client do not communicate with them, but seek legal advice from an attorney who practices in intellectual property law.
Savvy and seasoned attorneys will skirt the law by merely a few words, thus avoiding the "communication with intent to extort." Although stating in the letterhead, for example, that it is a demand or settlement letter, if the attorney commits any of several blunders, such as threatening prison, it would meet the legal definition of extortion-- as well as willful misuse of copyright (in patent claims known as unclean hands). The infringer turned plaintiff would likely file tort claims, including intentional infliction of emotional distress. 
EXAMPLE: You receive communication from an attorney representing a client who states the following:

1) Our Client has retained this firm for representation in the matter of your infringement of copyrights as you are currently using our Client's Photographs without permission.
2) Specifically, you are using the Photographs without authorization of our Client or the law.
3) Your use of the Photographs without authorization of our Client or the law constitutes copyright infringement. The infringement is clear; the only question is the extent of the damages to be paid.
4) Your infringement is presumed to be willful.
5) Our client therefore is entitled to enhanced statutory damages, $150,000 for each Photograph, for your willful copyright infringement.
6) You reproduced the Photographs while omitting the copyright attribution in violation of 17 U.S. Code 1202(b).You added your company's copyright claim ownership over the material.
7) This false and unauthorized assertion of copyright ownership is in violation of 17 U.S. Code 1202(a).
8) Our client is therefore entitled to combined damages -- actual damages for copyright infringement and statutory damages for the removal of and falsifying copyright management information.
9) You are on notice that litigation is likely regarding your actions concerning the Photographs.
10) Our client is willing to settle claims against you and end this matter immediately if you send certified funds in the amount of $25,000 payable to XXXXXXXXXX within 10 days of receipt of this letter.
11) If you do not accept this offer, our Client reserves the right to seek maximum allowable damages, under the law which far exceeds this amount.
12) Because it states that it is a "settlement demand" but lacks an accusation of committing a crime or threat to injure, etc., it does not meet the criteria of communicating with intent to extort.
United States Code
18 U.S. Code 875 - Interstate communications
(d) Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both.
18 U.S. Code 876 - Mailing threatening communications
(d) Whoever, with intent to extort from any person any money or other thing of value, knowingly so deposits or causes to be delivered, as aforesaid, any communication, with or without a name or designating mark subscribed thereto, addressed to any other person and containing any threat to injure the property or reputation of the addressee or of another, or the reputation of a deceased person, or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both. If such a communication is addressed to a United States judge, a Federal law enforcement officer, or an official who is covered by section 1114, the individual shall be fined under this title, imprisoned not more than 10 years, or both.

Civil War Artillery.jpg
Antietam National Battlefield

Fair Use
What is Fair Use?

Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders. Examples of fair use include commentary, search engines, criticism, parody, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, unlicensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test.

The term fair use originated in the United States. A similar principle, fair dealing, exists in some other common law jurisdictions. Civil law jurisdictions have other limitations and exceptions to copyright.

Fair use is one of the traditional safety valves intended to balance the public's interest in open access with the property interests of copyright holders.

Nonprofit Educational Use
Fair Use
Section 107 of the U.S. Copyright Act states the four factors for fair use, while the enacted "Technology, Education, and Copyright Harmonization Act" -- the TEACH Act -- amends Section 110 of the Copyright Act to exempt certain uses of copyrighted works in the context of distance education (beyond the context of face-to-face teaching). The TEACH Act sets forth in detail the terms and conditions on which nonprofit educational institutions may use copyrighted works in the context of distance education (such as via websites or other digital means) without permission. (George Washington University Law School.) See Cariou v. Prince, _ F.3d _ (2d Cir. 2013); Warren Publishing Co. v. Spurlock, 645 F.Supp.2d 402 (2009); NXIVM Corp. v. The Ross Institute, 364 F.3d 471 (2d Cir. 2004); Higgins v. Detroit Educational Television Foundation, 4 F.Supp. 2d 701 (E.D. Mich. 1998); Authors Guild, Inc. v. HathiTrust, 2012 WL 4808939 (S.D.N.Y. Oct. 10, 2012).
A website can only be considered as "Fair Use" by a federal court. The nonprofit or noncommercial educational website may use "copyrighted work," if it complies with each of the following four factors under Section 17 of the US Copyright Act:
17 U.S.C. 107
Notwithstanding the provisions of sections 17 U.S.C. 106 and 17 U.S.C. 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes
such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright
. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
1.the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2.the nature of the copyrighted work;
3.the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4.the effect of the use upon the potential market for or value of the copyrighted work.
An individual states that his website is for noncommercial, educational research only, but the rights holder accuses him of infringing on 5 photos of historical markers. The site contains 2,000 pages of history, several thousand photos, and is free for public use. By applying the four fair use factors, under Section 107, consider if it is "Fair Use".
1) Owner claims it as a noncommercial educational history website in the introduction. The owner also stated in his introduction that the copyright only applies to his works, so contact him for use of any material. Owner has never charged anyone to access his site nor has he received monetary gain from the copyright holder's 5 small, low resolution thumbnail photos of historical markers, which measure at or less than 300X200 pixels and approximately 1"x2" size.
2) Five small, low resolution photos are of historical markers erected by the United States Department of the Interior located on or near highways. The thumbnail photos have never been the core subject of any of the pages they appear on. Each of the low resolution photos were on separate website pages that already contained from 3 to 20 additional photos of historical markers and maps, and accompanied with text that is equal to from 1 to 10 pages on standard paper.
3) Photographs and artwork often generate controversies, because a user usually needs the full image, or the full “amount." On the other hand, a court has ruled that a “thumbnail” or low-resolution version of an image is a lesser “amount.” Such a version of an image might adequately serve educational or research purposes. The 5 photos in question are poor quality, low resolutions of or about 300x200 pixels and the thumbnails are approximately 1x2 inches in size. The client boasts an online portfolio of several thousand photos with sizes from 3888x2592 to 30,000x100,000 pixels and files sizes of 6.0MB to greater than 1,000,000MB. The rights holder has thousands of photos, mainly of sports' figures and sporting events. So 5 small, low resolution photos of Civil War historical markers would represent .1 percent of 5,000 copyrighted photos. If the number of copyrighted photos is 10,000 then 5 photos is equal to .05 percent.
4) 5 small, low resolution photos of every day stationary historical markers have little if any intrinsic value. The 5 photos in question are resolutions of or about 300x200 pixels and 1x2 inches in size. The client boasts a large portfolio of several thousand copyrighted photos with from 3888x2592 to 30,000x100,000 and files sizes of 6.0MB and up. The majority of the client's portfolio are of famous sports' figures and championship sporting events. While the client may own that once in a life time photo of Michael Jordan making that 3 point jump shot to win the game with 1 second on the clock, or the once in a life time famous catch in the end zone during the super bowl. In context, the 5 small, low resolution  marker photos have very little if any intrinsic value. At this very moment anyone can visit those 5 historical markers in the exact location, because unlike Michael Jordan, the markers are in a permanent location, but perhaps covered with additional pigeon dung. The markers perhaps lack plans to make a famous jump shot anytime soon. The rights holder advertises thousands of sports related photos for sale on several websites, but not each of the 5 photos in question are even listed for sale, at least not on the internet. While the holder does sell large, high resolution, high quality photos of the historical markers, the infringer has never sold or advertised that he sells or trades the small low resolution historical marker photos or seeks monetary gain from them, but he indicates that the site is for noncommercial educational research only.
See also: Cariou v. Prince, _ F.3d _ (2d Cir. 2013); Warren Publishing Co. v. Spurlock, 645 F.Supp.2d 402 (2009); NXIVM Corp. v. The Ross Institute, 364 F.3d 471 (2d Cir. 2004); Higgins v. Detroit Educational Television Foundation, 4 F.Supp. 2d 701 (E.D. Mich. 1998); Authors Guild, Inc. v. HathiTrust, 2012 WL 4808939 (S.D.N.Y. Oct. 10, 2012).

Civil War Artillery Battle of Bull Run.jpg
Manassas National Battlefield Park, courtesy InSapphoWeTrust

Fair Use on the Internet
Reversal of Fortune for the Plaintiff

A US court case in 2003, kelly v. Arriba Soft Corporation, provides and develops the relationship between thumbnails, inline linking and fair use. In the lower District Court case on a motion for summary judgment, Arriba Soft was found to have violated copyright without a fair use defense in the use of thumbnail pictures and inline linking from Kelly's website in Arriba's image search engine. That decision was appealed and contested by Internet rights activists such as the Electronic Frontier Foundation, who argued that it is clearly covered under fair use.

On appeal, the 9th Circuit Court of Appeals found in favour of the defendant. In reaching its decision, the court utilized the above-mentioned four-factor analysis. First, it found the purpose of creating the thumbnail images as previews to be sufficiently transformative, noting that they were not meant to be viewed at high resolution like the original artwork was. Second, the photographs had already been published diminishing the significance of their nature as creative works. Third, although normally making a "full" replication of a copyrighted work may appear to violate copyright, here it was found to be reasonable and necessary in light of the intended use. Last, the court found that the market for the original photographs would not be substantially diminished by the creation of the thumbnails. To the contrary, the thumbnail searches could increase exposure of the originals. In looking at all these factors as a whole, the court found that the thumbnails were fair use and remanded the case to the lower court for trial after issuing a revised opinion on July 7, 2003. The remaining issues were resolved with a default judgment after Arriba Soft had experienced significant financial problems and failed to reach a negotiated settlement.

In August 2008 US District Judge Jeremy Fogel of San Jose, California ruled that copyright holders cannot order a deletion of an online file without determining whether that posting reflected "fair use" of the copyrighted material. The case involved Stephanie Lenz, a writer and editor from Gallitzin, Pennsylvania, who made a home video of her thirteen-month-old son dancing to Prince's song Let's Go Crazy and posted the video on YouTube. Four months later, Universal Music, the owner of the copyright to the song, ordered YouTube to remove the video enforcing the Digital Millennium Copyright Act. Lenz notified YouTube immediately that her video was within the scope of fair use, and demanded that it be restored. YouTube complied after six weeks, not two weeks as required by the Digital Millennium Copyright Act. Lenz then sued Universal Music in California for her legal costs, claiming the music company had acted in bad faith by ordering removal of a video that represented fair use of the song. For more information, see Lenz v. Universal Music Corp.

Practical Effect of Fair Use
Defense against Photo Copyright Extortion
The practical effect of the fair use doctrine is that a number of conventional uses of copyrighted works are not considered infringing. For instance, quoting from a copyrighted work in order to criticize or comment upon it or teach students about it, is considered a fair use. Certain well-established uses cause few problems. A teacher who prints a few copies of a poem to illustrate a technique will have no problem on all four of the above factors (except possibly on amount and substantiality), but some cases are not so clear. All the factors are considered and balanced in each case: a book reviewer who quotes a paragraph as an example of the author's style will probably fall under fair use even though he may sell his review commercially; but a non-profit educational website that reproduces whole articles from technical magazines will probably be found to infringe if the publisher can demonstrate that the website affects the market for the magazine, even though the website itself is non-commercial.
Free Republic, LLC, owner of the political website, was found liable for copyright infringement in L.A. Times v. Free Republic for reproducing and archiving full-text versions of plaintiffs' news articles even though the judge found the website minimally commercial. She held that "while defendants' do not necessarily 'exploit' the articles for commercial gain, their posting to the Free Republic site allows defendants and other visitors to avoid paying the 'customary price' charged for the works."
The April 2000 opinion ruled concerning the four factors of fair use that 1) defendants' use of plaintiffs' articles is minimally, if at all, transformative, 2) the factual content of the articles copied "weighs in favour of finding of fair use of the news articles by defendants in this case", though it didn't "provide strong support" 3) concerning the amount and substantiality prong, "the wholesale copying of plaintiffs' articles weighs against the finding of fair use", and 4) the plaintiffs showed that they were trying to exploit the market for viewing their articles online and defendants did not rebut their showing by proving an absence of usurpation harm to plaintiffs. Ultimately the court found "that the defendants may not assert a fair use defense to plaintiffs' copyright infringement claim".

Defense Against Copyright Extortion
Fair Use as a Defense
The Supreme Court of the United States described fair use as an affirmative defense in Campbell v. Acuff-Rose Music, Inc. This means that in litigation on copyright infringement, the defendant bears the burden of raising and proving that the use was fair and not an infringement. Thus, fair use need not even be raised as a defense unless the plaintiff first shows (or the defendant concedes) a "prima facie" case of copyright infringement. If the work was not copyrightable, the term had expired, or the defendant's work borrowed only a small amount, for instance, then the plaintiff cannot make out a prima facie case of infringement, and the defendant need not even raise the fair use defense.

17 U.S.C. 107
Notwithstanding the provisions of sections 17 U.S.C. 106 and 17 U.S.C. 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1.the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2.the nature of the copyrighted work;
3.the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4.the effect of the use upon the potential market for or value of the copyrighted work.

Effect Upon Work's Value
Measuring Value
The fourth factor measures the effect that the allegedly infringing use has had on the copyright owner's ability to exploit his or her original work. The court not only investigates whether the defendant's specific use of the work has significantly harmed the copyright owner's market, but also whether such uses in general, if widespread, would harm the potential market of the original. The burden of proof here rests on the copyright owner, who must demonstrate the impact of the infringement on commercial use of the work. Yet see Sony Corp v. Universal City Studios, where the copyright owner, Universal, failed to provide any empirical evidence that the use of Betamax had either reduced their viewership or negatively impacted their business. In the aforementioned Nation case regarding President Ford's memoirs, the Supreme Court labeled this factor "the single most important element of fair use" and it has indeed enjoyed some level of primacy in fair use analyses ever since. Yet the Supreme Court's more recent announcement in Campbell v. Acuff-Rose Music Inc. that "all [four factors] are to be explored, and the results weighed together, in light of the purposes of copyright" has helped modulate this emphasis in interpretation.
In evaluating the fourth factor, courts often consider two kinds of harm to the potential market of the original work: First, courts consider whether the use in question acts as a direct market substitute for the original work. In the judgement of the Supreme Court in Acuff-Rose Music they decisively stated that, "when a commercial use amounts to mere duplication of the entirety of the original, it clearly supersedes the object of the original and serves as a market replacement for it, making it likely that cognizable market harm to the original will occur". In one instance, a court ruled that this factor weighed against a defendant who had made unauthorized movie trailers for video retailers, since his trailers acted as direct substitutes for the copyright owner's official trailers. Second, courts also consider whether potential market harm might exist beyond that of direct substitution, such as in the potential existence of a licencing market. This consideration has weighed against commercial copy shops that make copies of articles in course-pack for college students, when a market already existed for the licensing of course-pack copies.
Courts recognize that certain kinds of market harm do not oppose fair use, such as when a parody or negative review impairs the market of the original work. Copyright considerations may not shield a work against adverse criticism.

Battle of Antietam.jpg
Artillery at Battle of Antietam

Copyright Misunderstanding
Ignorance and Arrogance

Fair use is commonly misunderstood because of its deliberate ambiguity. Here are some of the more common misunderstandings with explanations of why they are wrong:

Any use that seems fair is fair use. In the law, the term fair use has a specific meaning that only partly overlaps the plain-English meaning of the words. While judges have much leeway in deciding how to apply fair use guidelines, not every use that is commonly considered "fair" counts as fair use under the law.
Fair use interpretations are unique and limited. Fair use is decided on a case by case basis, on the entirety of circumstances. The same act done by different means or for a different purpose can gain or lose fair use status. Even repeating an identical act at a different time can make a difference due to changing social, technological, or other surrounding circumstances.
If it's not fair use, it's copyright infringement. Fair use is only one of many limitations, exceptions, and defenses to copyright infringement. For instance, the Audio Home Recording Act establishes that it is legal, using certain technologies, to make copies of audio recordings for non-commercial personal use.
It's copyrighted, so it can't be fair use. On the contrary, fair use applies only to copyrighted works, defining some types of uses of those works as non-infringing; in effect, it limits copyright's scope and describes conditions under which copyrighted material may be used without permission. If a work is not copyrighted, fair use does not come into play, since public-domain works can be used for any purpose without violating copyright law.
Acknowledgment of the source makes a use fair. Giving the name of the photographer or author may help, but it is not sufficient on its own. While plagiarism and copyright violation are related matters—-both can, at times, involve failure to properly credit sources—-they are not identical. Plagiarism—using someone's words, ideas, images, etc. without acknowledgment—is a matter of professional ethics. Copyright is a matter of law, and protects exact expression, not ideas. One can plagiarize even a work that is not protected by copyright, such as trying to pass off a line from Shakespeare as one's own. On the other hand, citing sources generally prevents accusations of plagiarism, but is an insufficient defense against copyright violations. For example, reprinting a copyrighted book without permission, while citing the original author, would be copyright infringement but not plagiarism.
Noncommercial use is invariably fair. Not true, though a judge may take the profit motive or lack thereof into account. In L.A. Times v. Free Republic, the court found that the noncommercial use of LA Times content by the Free Republic Web site was in fact not fair use, since it allowed the public to obtain material at no cost that they would otherwise pay for.
Strict adherence to fair use protects you from being sued. Fair use is an affirmative defense against an infringement suit; it does not restrain anyone from suing. The copyright holder may legitimately disagree that a given use is fair, and they have the right to have the matter decided by a court. Thus, fair use does not guarantee that a lawsuit will be prevented.
The lack of a copyright notice means the work is public domain. Not usually true. United States law in effect since March 1, 1989, has made copyright the default for newly created works. For a recent work to be in the public domain the author must specifically opt-out of copyright. For works produced between January 1, 1923 and March 1, 1989, copyright notice is required; however, registration was not required and between January 1, 1978 and March 1, 1989 lack of notice is not necessarily determinative, if attempts were made immediately to correct the lack of notice. Any American works that did not have formal registration or notice fell into the Public Domain if registration was not made in a timely fashion. For international works, the situation is even more complex. International authors who failed to provide copyright notice or register with the US copyright office are given additional contemporary remedies that may restore American copyright protection given certain conditions. International authors/corporations who fail to meet these remedies forfeit their copyright. An example of a company who failed to prove copyright was Roland Corporation and their claimed copyright on the sounds contained in their MT-32 synthesizer.
It's okay to quote up to 300 words. The 300-word limit is reported to be an unofficial agreement, now long obsolete, among permissions editors in the New York publishing houses: "I'll let you copy 300 words from our books if you let us copy 300 words from yours." It runs counter to the substantiality standard. As explained above, the substantiality of the copying is more important than the actual amount. For instance, copying a complete short poem is more substantial than copying a random paragraph of a novel; copying an 8.511-inch photo is more substantial than copying a square foot of an 810-foot painting. In 1985, the US Supreme Court held that a news article's quotation of approximately 300 words from former President Gerald Ford's 200,000 word memoir was sufficient to constitute an infringement of the exclusive publication right in the work.
You can deny fair use by including a disclaimer. Fair use is a right granted to the public on all copyrighted work. Fair use rights take precedence over the author's interest. Thus the copyright holder cannot use a non-binding disclaimer, or notification, to revoke the right of fair use on works. However, binding agreements such as contracts or licence agreements may take precedence over fair use rights.
If you're copying an entire work, it's not fair use. While copying an entire work may make it harder to justify the amount and substantiality test, it does not make it impossible that a use is fair use. For instance, in the Betamax case, it was ruled that copying a complete television show for time-shifting purposes is fair use.
If you're selling for profit, it's not fair use. While commercial copying for profit work may make it harder to qualify as fair use, it does not make it impossible. For instance, in the case Campbell v. Acuff-Rose Music, Inc., it was ruled that commercial parody may be fair use. Hip-hop group 2 Live Crew successfully made a parody, sold for profit, of the song "Oh, Pretty Woman".

See also

Credits: U.S. Copyright Office; Depoorter, Ben; Parisi, Francesco (2002). "Fair Use and Copyright Protection: A Price Theory Explanation". International Review of Law and Economics 21 (4): 453–473. doi:10.1016/S0144-8188(01)00071-0; Gordon, Wendy J. (1982). "Fair Use as Market Failure: A Structural and Economic Analysis of the 'Betamax' Case and Its Predecessors". Columbia Law Review 82 (8): 1600–1657. doi:10.2307/1122296. JSTOR 1122296; Samuelson, Pamela (1995). "Copyright's fair use doctrine and digital data". Publishing Research Quarterly 11 (1): 27–39. doi:10.1007/BF02680415; Fort Pulaski Panorama; Manassas National Battlefield Park.

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