Key takeaways:
- Do not ignore copyright threat emails. Silence can lead to default judgments, which are hard and expensive to undo.
- Many stock photos are not registered copyrights. That makes big “statutory damages” threats mostly bluff, as long as you respond.
- Registering as a DMCA agent is cheap and gives you strong procedural protection before anyone can sue for statutory damages.
- Keep your stock photo licenses. Producing the license can shut down many troll claims.
- Predators look for easy prey. If you put up intelligent resistance, trolls often walk away.
- AI-generated images can reduce copyright risk and are increasingly attractive compared to stock photos.
- Fair use is real, but you must argue it within the four statutory factors, especially when you are engaging in political speech or commentary.
The New Grift: Copyright Trolls Targeting Authors and Bloggers
This is basically a new grift that has been enabled by a law passed in Germany. Germany now has very draconian copyright laws. There is one particular law firm in Germany that is doing nothing but harassing American website owners, which includes American authors.
The worst thing you can do with a copyright troll is ignore it.
So here is how the attack works. I will walk you through what it looks like, because I have been hit by several different companies. I will also walk you through several different defenses you can use to protect yourself, because at this point I am basically harvesting them for XP and testing different defenses.
How the Attack Works and What Not to Do
Here is what you do not do.
You get an email from somebody claiming they have the copyright on a particular image you used on your website. If you ignore it, they can go to court against you and get a summary judgment. Now you have a court judgment going after you, or they have court-authorized authority to come after you for money.
That is the worst possible scenario, especially because almost everything they are doing is shady. If you push back in any real way, you will usually win. But you do not want to hire an attorney for hundreds of dollars if you can avoid it.
Typically the email says something like:
“You have this photo on your website. It is a violation of our copyright. We have evidence of you using it. We are going to come after you for $20,000 or you can pay us $900 or $1,500 right now and we will make it all go away.”
It is very much an organized crime style attack.
My Texan anti-bully instincts just flare up. I am like, “I would rather pay every penny you are trying to extort from me to a lawyer just to keep you from getting it.”
Basic Copyright Reality: Registered vs. Actual Damages
For them to actually get a serious judgment against you, the copyright itself matters a lot.
I am not a lawyer. This is what I understand from researching and talking with lawyers. This is not a replacement for getting real legal advice. My hope is that it helps you ask a real lawyer more intelligent questions.
From my understanding of copyright law:
- For them to get statutory damages, they must have registered the copyright within roughly three months of the content’s creation.
- Very few stock photos actually have registered copyrights.
- It is more likely for news agencies like Associated Press or Reuters to have proper registrations.
Most stock photos are not registered copyrights. If they are not registered:
- They cannot come after you for statutory damages.
- They can only come after you for actual damages.
It is very difficult for them to prove actual damages in a court of law. Which means the big scary number in the email is a hollow threat.
Unless you ignore the email. If you ignore it, they can potentially get a summary judgment against you.
Defense #1: Demand Proof of a Registered Copyright Holder
One defense, and this is what I did the first time I was hit, was to hire an attorney.
I talked to an attorney. He sent a letter and handled it for me. He CC’d me on everything, so I could watch what he did.
He kept asking, in different ways, variations of:
“We want to know that you are representing the registered copyright holder.”
This is a kind of hack. Anybody can claim to be representing the copyright holder. That does not make it valid.
A lot of this is a straight-up grift. In some cases, whoever took the stock photo never gave this law firm permission to harass website owners and authors on their behalf. It is a pure scam.
Some of these claims may be legitimate. The key question is still the same.
Is this the registered copyright holder?
That question is really asking:
“Is this copyright registered, and do you actually have a legal leg to stand on?”
They sent certified letters back and forth. Eventually they went away, because this particular stock photo or comic was not a registered copyright.
During that process, I learned about a wonderful protection Americans have. It is called the Digital Millennium Copyright Act, or DMCA.
How the DMCA Is Supposed to Work
Under the DMCA, the process is supposed to look very different from the troll approach.
They are not supposed to come and threaten to extort you for money. The correct process is:
- They ask you to take the offending material off your website.
- You can then challenge that takedown and say, “No, I think this is fair use.”
- There is a back and forth over whether the content should stay up.
There is a whole separate line of defense called fair use that can apply here. None of this has to involve the courts. None of it has to involve large sums of money changing hands.
If you register as a DMCA agent, they cannot come after you for statutory damages until they have exhausted that back and forth process.
So I asked, how much does it cost to become a DMCA registered agent?
I looked it up. It costs six dollars a year.
It is basically free.
Defense #2: Become a DMCA Registered Agent
Another way to defend yourself is to become a DMCA registered agent:
- Pay the small annual fee.
- Get yourself into the official DMCA database.
- Put a DMCA clause in the terms of service or privacy policy at the bottom of your website.
An AI can write that clause for you.
This is another defense I used. I added language like:
“For DMCA takedown requests, please follow the procedures outlined in the DMCA.”
Then I would point any trolls to that page. The page basically tells them to email me, but to email me with a certain subject line and specific information.
I relearned something important. If they go to that page and realize you are a legitimate DMCA-protected website, they typically leave you alone. They realize there is no juice in the squeeze.
They stop harassing you.
Defense #3: Produce the Stock Photo License
A third way to protect yourself is to simply send them the license for the stock photo you bought.
All of this typically comes from stock photos. I was getting harassed for stock photos I had legally purchased.
The second time I was attacked, I:
- Went to the stock photo website.
- Looked up the license.
- Sent that license to the troll.
That worked.
Then three weeks later, they hit me for another stock photo on a different blog. That is when I thought:
“I do not want to keep doing this. This is really irritating.”
I have hundreds and hundreds of blog posts. I have hundreds of stock photos. I do not want to keep proving to some random law firm in Germany that I purchased these images legally.
We have troops in Germany. Germany does not have troops here. Why am I even bothering with these people?
Combining Tactics: Lawyer, License, DMCA
So here is how my first few encounters broke down:
- First time
- I used a lawyer.
- I did not pay anything, because they were not representing a registered agent and had no real case.
- Second time
- I sent the stock photo license, because I had it.
- That handled the claim.
- Third time
- I also had the license, but I did not tell them that.
- I simply said, “Please follow the DMCA takedown procedures on this page.”
- I sent them to the page that had the clause and showed I was a DMCA registered agent.
After that, that particular company has never contacted me again. They basically flagged my website in their system as DMCA protected and moved on.
More recently, I got hit with another copyright troll just last week. I did the same thing:
“Please follow the DMCA takedown procedures on this page.”
I sent them to the page with the DMCA clause. I have not heard back yet. I may have to go a few more rounds, but we will see.
This entire pattern is really abusive. It is not a problem for:
- Social media platforms
- Substack
- Any platform where you are not hosting the media yourself
It is only a problem with your own website.
It is a way for the big guys to oppress the little guys.
It makes me really angry. But I am very thankful to be an American. It would be way worse if I lived in Germany and had to live under those copyright laws. My ancestors left Germany for a reason.
Predators Look for Easy Prey
You have to understand how predators work. They are not looking to burn a lot of energy for their benefit. They want the easiest possible win.
I love this line from The Lion King cartoon:
“Can I just pick off one of the little sick ones?”
That is exactly how these guys operate.
If you are DMCA registered, a predator does not want to come after you. Now they have to work for it, and predators do not want to work. They do not want to run. They do not want to zig or zag.
They want easy prey.
The whole process on their side is almost entirely automated. You click the link in their email and you are not really interacting with their lawyers. You are going to what is effectively a shopping cart where you buy protection from this company.
But if you buy protection one time, you will never be rid of these people.
Defense #4: Stop Using Stock Photos and Switch to AI Images
There is one other protection I forgot to mention. Do not use stock photos and do not use photos from newspapers. Only use AI-generated images.
This is where copyright law is really hurting artists.
If you are an artist with a copyright, and now there are copyright trolls using your copyright to harass people who may have legally purchased your art, you create a huge incentive for people to do this instead:
- Have an AI image made in your style.
Because it is a unique creation, it is legally separate. There are no trolls going after people generating images with AI.
There are no law firms going after AI-generated stuff. The attacks are only happening against people using human-made work.
If you want to protect human-created work, we have to do something about these trolls. They create a massive disincentive to buy real art.
It is already easier and cheaper to get something like GPT to make me an image than to go to a stock photo website. But now, if I have GPT make the image, it is:
- Cheaper
- Easier
- Lower risk
There is less chance of a copyright troll coming after me for using that image.
The system is totally broken.
A New Attack from Canada: The Obama Photo Story
I have an update on my copyright troll story.
A few weeks ago I talked about how I had been attacked by three or four copyright trolls. Since then, I have been attacked by another one, this time from Canada.
Here is the background.
Back when I was fresh out of college, I did a lot of blogging. It was the 2000s and everybody was blogging. I blogged mostly about politics, but I also blogged about dating and relationships. Those were my two main focuses.
At Obama’s very first G8 summit, there was a very famous photo of him looking at a Brazilian woman’s butt. I could not not comment on this photo.
It sat at the intersection of:
- Dating and relationships
- Interactions between men and women
- Politics
This was the ultimate 2008 Thomas topic.
So I posted the photo, wrote some commentary, and then drew some bigger lessons about dating and relationships. It was a classic early Thomas post.
Everybody else was commenting on this photo at the time too. The photo went viral. You can probably picture it in your head.
Later I learned it was just an unfortunate moment pulled from a video. It was not actually what it looked like. Obama was turning his head and the camera caught him at exactly the wrong moment. It was actually the French leader, Sarkozy or [unclear French politician], who was doing something more questionable.
Anyway, lots of drama. None of that really mattered legally.
What mattered was that the photo was licensed by Reuters. It was a Reuters photo. They had licensed and filed the copyright.
That caused a big problem for me:
- The defenses I had used before did not work.
- This was on my personal blog.
- I did not have as strong DMCA protection, because it was a first-party use. I could not say it was a third-party upload.
It was also a different company, a Canadian company, attacking me instead of the German law firm. I could not recycle some of the same arguments.
They had real evidence. In their initial emails they wrote things like:
“This is a licensed copyright. Here is the copyright registration.”
I looked it up myself on copyright.gov. Sure enough, they had copyrighted that image. That is typical for Reuters and AP photos.
Most stock photos do not have registered copyrights. But for newspaper and news agency photos, they usually do.
So all of the defenses I had used before were off the table.
Choosing to Fight: Free Speech vs. Paying the Troll
Even though they were not asking for a huge amount of money, maybe five hundred dollars, I was not going to let a Canadian copyright troll take away my freedom of speech.
I was not going to let them stop me from commenting on my own President allegedly looking at a Brazilian woman’s butt.
This is America.
America.
For me, it was the principle of the matter.
I knew that if I had put that same commentary on Twitter, they would not be coming after me. They were only coming after me because I was doing it on my own platform.
This is an attempt by corporate media and corporate America to silence individual humans they cannot control.
- If I had posted it on Twitter, Twitter could have deleted it if they disagreed with the politics.
- Twitter cannot delete it from my personal blog.
So they are using this legal angle to try to silence individuals. I will not be so easily silenced.
Building a Fair Use Defense with AI
Here is what I did.
I took their email and pasted it into Grock. I said:
“Grock, take on the role of an attorney. Help me with this email.”
Their emails are crafted in such a way that if you do that, the AI is going to say:
“Yes, this is legitimate. You are in big trouble.”
That is what the AI sees from the wording.
So I started talking to Grock and giving it more context. I told it that this was a political photo and that my post was political commentary.
Remember, Grock cannot see the image. It just reads the text of the email and my explanation.
As I talked to it, I built a legal case based on fair use.
Most people want to wave their hands and say, “This is fair use.” But fair use is specific. There are four legal elements of fair use in the statute.
I went through those four factors with Grock to see which applied. The fact that this was political speech went a long way.
American courts do not like to crack down on political speech.
Canadian courts do. They crack down on political speech all the time. Look at how they treated the truckers.
In America, even the Supreme Court has upheld the rights of the Ku Klux Klan and neo-Nazi rallies to speak. It is awful, but under the First Amendment they have that right.
The Supreme Court’s position is that the answer to bad speech is more speech, not less.
So efforts to shut down political speech are heavily frowned upon in American law.
With Grock’s help I built a fair use argument. It basically said:
- Yes, this photo is copyrighted.
- We are not contesting your copyright.
- But under American law, I still have the right to use it under the fair use provision, especially for political commentary.
I told myself, if this has to go to court, it can go to court.
My ancestors died for me to have freedom of speech. I am not going to sell that freedom to some Canadian company for five hundred dollars.
So this became about picking my battles.
Here I stand. I can do no other.
If I go off the air, if I end up impoverished, you will know why.
Final Update: The Fair Use Defense Worked
I have an update on the copyright troll story. This is an ongoing saga.
As you remember, I got attacked by yet another copyright troll. I tried a whole bunch of defenses. They did not work. So I had to do another round.
I worked with Grock again to build a full fair use defense. In keeping with the fair use theme, I put together a detailed argument that my use of this copyrighted image was fair use.
The copyright troll referred my response to their legal team.
Their lawyers looked over the brief that Grock and I put together. They decided the juice was not worth the squeeze.
They emailed me and said they had closed the case.
So hopefully this is the last we will hear about this particular matter. I have chased off yet another copyright troll without paying any money.
Jonathan:
Look, they are just trying to go after the little sick ones. If you put up a fight, they say, “I do not want to do this anymore.”
