Photo used with no copyright registration

[Matthew Chan]

I agree.  Calling them is never a good idea. Even filing a lawsuit to get statutory damages is not exactly without its share of time, energy, and work.  It is much easier and less costly to lie and fool legally ignorant victims to pay outrageous amounts of money.

The only way Higbee can file a suit for statutory damages is if the photo was registered with the copyright office within 3 months of publication.  Otherwise they would have to prove actual damages which is a bigger pain in the ass for them.  Making contact with them was you first mistake.  Giving them nomoney would be your biggest.

[Matthew Chan]

Very good informative answer. And your conclusion is spot on:

For some people, the right answer is to ignore their calls and emails and hope they don't sue. For others, it's worth the peace of mind just to settle and move on. There really is no right answer.

You can have the exact same circumstances, infringed image, and demand letter but because each individual have different personalities, priorities, risk tolerances, knowledge levels, experience, and capabilities, the course of action can be very different. There are myriad ways of handling any given situation.  People want black and white answers but generally, there are none. There are probabilities.

Some people need the peace of mind even if it costs them money. Others value the money or principle more.

The answer is that it depends. Generally, you cannot sue unless the copyright is registered. The only exception is that if the photograph was created by a foreign citizen outside the United States, then it does not need to be registered prior to filing a lawsuit. It's not that difficult to get a registration so if they want to get one and sue they will, but it costs money and usually takes a few months to get issued.

The real question is the damages. That will probably be the motivating factor for them to decide whether or not it is worth the trouble of registering the copyright and filing a lawsuit. The copyright right laws allow for a copyright owner to choose between actual damages plus the defendant's profits OR statutory damages, which is a fixed amount set by the copyright law ($750 to $30,000 per infringement). If the photo is not registered right now they probably can't get statutory damages. Depending on how you used the photo will determine the actual damages and profits.

For actual damages, it is usually the licensing fee plus maybe a little extra for diminution of value of the photo. The real wild card in these cases is the profits. You said you used it on a "company" website. If you are using it to sell products or advertise your company then they could ask for the profits that were generated, although it may or may not be hard for them to prove. The point is, you need to look at how you used the photo. If it is a commercial use to advertise a business or product then there is probably a higher likelihood they think they can prove profits.

For some people, the right answer is to ignore their calls and emails and hope they don't sue. For others, it's worth the peace of mind just to settle and move on. There really is no right answer.

[Matthew Chan]

Actually, in many situations and circumstances, people don't necessarily have to respond to a lawsuit at all. The worst that can happen is a default judgment. But most people blindly assume that they have to hire a lawyer and respond to a lawsuit.  They falsely believe once a lawsuit is filed, the next event is a court date.

The civil lawsuit is often the beginning of a long drawn out process for the plaintiff if the defendant chooses to respond and knows how to fight back. We have seen pro se people do very good job fighting back based on their sheer tenacity.

They can't comprehend that there are people who are savvy and determined to not be collectible can and do succeed.

Just because a party gets a default judgment, doesn't mean it is collectible at all. Masterfile learned that the hard way many years ago with their lawsuit campaign. The people who made the most money were the lawyers doing the work, not the plaintiffs.

In my opinion, I think it is only worth fighting if you have an exceptionally strong fair use or other complete defense. The law allows the prevailing party to get attorneys' fees, so that includes the defendants if they prevail. Unfortunately, the way the law is structured, if you used the photo it is very hard to prove a complete defense to infringement. So even if you prove a low amount of damages, you still have to waste time and money getting to that point. Unless you think you can win and get fees then fighting off a lawsuit is only going to cost money and suck away your time.

That doesn't mean you should just acquiesce and pay their settlement amount. Maybe they never sue and you get away with paying nothing. For some people, that's a gamble they are willing to take.