by Wilton H. Strickland

I recently replaced many of the images that accompany my occasional posts here. The reason has to do with copyright law, which I never thought would become an issue on a blog as obscure as mine. What I forgot is that large numbers of people devote their lives to petty pursuits, a lesson I should have internalized a few years ago when a rabid bankruptcy trustee tried to bully me for dispensing some rather minor legal advice. I had put that pathetic episode behind me when, last month, another malcontent crawled out of the woodwork.

A California law firm sent me a letter claiming that one of the images on my blog was being used without a license from the firm’s client. The letter demanded not only that I take the image down, but also pay $1,000 to settle the owner’s claim or be sued for the maximum allowable damages of $150,000 along with attorney fees. I investigated the firm and discovered that it makes a living out of making demands such as this. I also recalled that the image in question came from a website offering such images for free. Where I had slipped up was failing to attribute the image to the creator, which was a condition of free use.

It struck me as odd that the firm would demand removal of the image rather than attribution, since attribution is what the firm’s client publicly had requested. I inquired about this, and the firm clarified that it still wanted compensation for the few months I had used the image without attribution. Petty, petty, petty.

I made a quick study of copyright law — which I have very little experience with — and found that I probably could tell this firm to go play in traffic. However, I wanted this farce to end right away, and I figured the best way to accomplish that was to make a counteroffer that would allow the firm to gain at least something from its “effort” on behalf of its client. This might be helpful to some of you out there confronting similar threats, so for what it’s worth, here is what I wrote (in pertinent part):

You have clarified that you seek to recover damages for my use of the image without attributing the image to your client, which was the crucial condition for a free download of the image from the website PIX4FREE. The website also offers an Attribution Free Option for the image, as shown on the right side of the screen here [link]. When I investigated that option, I found that I can purchase the image without attribution for either $9.95 (for use on a single non-commercial website) or $249.95 (for use on a single commercial website). See attached. Based on this information, I am prepared to pay $500 to settle this matter, which covers the higher cost of acquiring the image without attribution, along with an extra $250 for your trouble.

Apart from the fact that I am offering to pay double what the image is selling for, there are additional reasons that lead me to believe that my counteroffer is a fair one:

• I have not found any evidence that the image has a registered copyright, which is a prerequisite for pursuing relief under the Copyright Act. 17 USC § 411(a). Indeed, you cannot seek statutory damages or attorney fees without a registered copyright, even if you subsequently obtain one. See Sims v. Amazon, No. 2:20-cv-04389-FLA (ASx), 2022 U.S. Dist. LEXIS 48797, at *5, *6 (C.D. Cal. Jan. 27, 2022) (discussing 17 USC § 412).

• I recognize there is an exception to the registration requirement in cases concerning a “work of visual art.” However, it is highly debatable whether the image meets the narrow definition of that term as set forth in 17 USC § 101, which also contains several exclusions that may be applicable.

• Even if the image has a registered copyright or meets the narrow definition of a “work of visual art,” I have a colorable defense of fair use under 17 USC § 107 because I used the image for a free, open, and educational blog that generates no revenue. The mere fact that my website is for a commercial business does not preclude this defense. See, e.g., Kelly v. Arriba Soft Corp., 336 F.3d 811, 818 (9th Cir. 2003). A reviewing court will “assess whether a defendant’s copying led directly to the generation of revenue and profit, or whether it merely had an indirect relation to commercial gain.” L.A. Times v. Free Republic, No. CV 98-7840 MMM (AJWx), 2000 U.S. Dist. LEXIS 5669, at *48, *49 (C.D. Cal. Mar. 31, 2000). There was no direct (or even indirect) generation of revenue from your client’s image on my website.

I appreciate your professionalism and your patience. As an attorney, I understand the importance of representing a client and protecting his or her interests. In my honest opinion, and for the reasons set forth above, I believe that my counteroffer of $500 accomplishes that for your client. If you find this acceptable, feel free to send me a revised Release Agreement that reflects this amount. If you do not find this acceptable, I will consider your reasons and get back to you as soon as I can.

My counteroffer was accepted, and now I am erring on the side of caution by keeping images off my entire website unless I know for certain that I am allowed to use them. You should do the same.