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36 GPSolo 72 (2019)
Staying Safe in the Showdown over Digital Content Use Online

handle is hein.journals/gpsolo36 and id is 150 raw text is: {BEST OF ABA SECTIONS} By Scott J. Sholder and Lindsay R. Edelstein he last several years have seen a significant increase in the number of copyright infringe- ment claims filed by photog- raphers and photo licensing agencies, particularly against online and digital media platforms that license or use third-party content. This article sets forth some basic best practices in responding to, evaluating, and defending against these types of copyright claims, as well as some steps that digital media companies large and small can take to reduce their risk of finding themselves on the business end of a copyright infringement complaint in the first place. You've received a demand letter- now what? Step one: Takedown. Before removing the specific image at issue, take a screenshot of the image as it was posted and of the web page or platform on which it was used, as well as any other websites the image or post linked to. Save this in- formation for purposes of discovery; not only do you have an obligation to preserve relevant evidence once litigation is likely, but a detailed file will help you fend off any later claim that you spoliated evidence. Unless you are sure you have a license to use the specific image at issue, or you very quickly agree to a license arrange- ment with the copyright owner, you should remove the allegedly infringing image. If it turns out to be infringing, the longer it is up, the more damages the plaintiff will claim. If you are not sure whether the image was licensed, err on the side of caution. Scott J. Sholder (ssholder@cdas.com) is a litigation partner at Cowan, DeBaets, Abrahams & Sheppard LLP, located in New York and Los Angeles. Lindsay R. Edelstein (ledelstein@ cdas.com) is a litigation associate at Cowan, DeBaets, Abrahams & Sheppard LLP. Step two: Investigate internally. The next step is to review your records and discuss the matter with your own per- sonnel to determine what happened. If the claimed image is in fact the one that you used, the most important question is whether you have a license for the image. If not, find out who posted the image on your website or platform, when it was initially posted, how the image was pro- cured, and whether it was paid for. As a technical matter, was the image file cop- ied and uploaded? Or was it embedded? These questions are key thresholds in determining your liability exposure. If the image was licensed from the photographer or from an authorized li- censor for an authorized purpose, you are likely in the clear. If there was no permission and the image was merely right-click licensed from a site such as Google Images or a social media plat- form such as Facebook and re-uploaded to your site, an infringement may have occurred assuming the use was not fair. Similarly, if the image was licensed from a third party that was not authorized to do so, you may still be liable. Another part of the internal investi- gation is analyzing whether you have a potential fair-use defense. The basic fac- tors relevant to a consideration of fair use include: the purpose and character of the use; the nature of the copyrighted work; how much of the image was used (and whether the heart of the work was used); and whether the potential market for licensing the image was harmed. Independent of the fair-use analysis, you should attempt to determine, at least roughly, how much the image at issue would have cost to license. Determining a reasonable license fee is extremely impor- tant in the context of damages and settle- ment. The availability of statutory damages depends on the owner's having a valid copyright registration, and the amount of a statutory damages award is ultimately within the discretion of the court. Hav- ing a general idea of the possible range of realistic damages, and knowing the law to support your position, can be helpful in negotiating an early settlement. Step three: Respond to the claim. If your investigation reveals you did not have a license and you do not have any other defense, it is often best to settle quickly; the demand tends to go up even higher if a claimant is forced to file a com- plaint or proceed with a lawsuit in prog- ress. The key is to negotiate a settlement that you can live with and that presum- ably is less than the cost to litigate. Plaintiffs and their lawyers and other representatives in image use cases will inevitably ask for far more money right out of the starting gate than they would ever get at trial. They often cite the $150,000 maximum damages range GPSOLO I March/April 2019 72 M=

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