Dealing with a Copyright Troll

The legal industry is full of a variety of different types of trolls.  When people refer to a troll in a legal sense, they mean parties who make a living suing others for oftentimes petty claims.  Even though the claims might not be too meritorious, or might be worth a small sum of money, parties may want to settle with these trolls since the cost of a defending a claim in court might be much greater than the settlement.  Trolls are typically seen in the patent context and with copyright infringement claims as well.  When dealing with a copyright troll in particular, there are a few things individuals can keep in mind when resolving a matter with the least amount of hassle possible.

Lawyer Up

The most important thing to do when dealing with a copyright troll is to lawyer up.  Copyright trolls often hope that individuals will be so scared by their claims that they will settle the claim early and not involve lawyers.  Trolls typically do not like dealing with parties that are represented by counsel.  This is because parties represented by counsel might have a better understanding of the value of a case, and whether it might be worth it to litigate a case.  Furthermore, when a party is represented by counsel, lawyers who represent the troll usually cannot contact the person being trolled directly but must go through counsel.  This can eliminate some of the stress and hassle associated with dealing with a copyright troll.  In any case, an attorney can help someone targeted by copyright trolls through all parts of the settlement process and litigation so that the client has the best chance of successfully resolving the matter.

Copyright Registration

One important thing to inquire about when dealing with a copyright troll is whether the copyright at issue has been registered.  Parties need to have a copyright registered before they can file suit based on copyright infringement.  However, parties are allowed to file for registration after infringement occurred and still sue for infringements that occurred before registration.

Nevertheless, whether or not the copyright was registered at the time of the infringement can have a massive impact on damages.  If the copyright was registered at the time of infringement, or of the infringement occurred within 90 days after the work was originally published, then a copyright-holder is allowed to sue for statutory damages.  This is a predetermined amount of damages written in the copyright statute.  Although the range of statutory damages can change based on a variety of circumstances, these typically range from between $750 to $30,000.  If a party is unable to sue for statutory damages, they are only allowed to sue for actual damages.  It might be difficult to prove the precise amount of damages a party faced because of copyright infringement.  Moreover, juries may simply award a nominal sum in actual damages.  As a result, inquiring about registration is important when dealing with copyright trolls, since if it is discovered that the work was not registered, it is easier to dismiss the claim of a copyright troll.

Amount of Damages

Another important part of dealing with a copyright troll is to determine how the troll calculated the amount of the damages they are alleging.  Oftentimes, copyright trolls will demand exorbitant amounts of damages from people they target. However, the actual amount of damages trolls can recover if their works are not registered is usually a low amount.  This is because in many cases, if there was simply an inadvertent use of an image on someone’s website or another innocuous use, it is difficult to assert that the troll was seriously harmed.  Of course, if the copyright infringement occurred when conducting a massive advertising campaign, the amount of damages can be higher.  However, if you inquire about how damages are calculated, this may put the troll on notice that you understand that statutory damages cannot be recovered in many instances without registration and you are informed about your rights.

Fair Use

One important argument to consider when dealing with a copyright troll is fair use.  Fair use is one the biggest defenses against copyright infringement.  Although there are substantial court cases and publications that detail the contours of fair use, in a nutshell, fair use is when courts carve our reasons to use copyrighted work that will not give rise to damages.  Generally, when assessing whether the use of an infringer was protected by fair use, courts consider the nature of the copyrighted work, the nature of the alleged infringer’s work, the amount of the copyrighted work that was copied, and the effect on the market for that type of work.  As a result, if a party only uses a small part of a copyrighted work and there is not much of an economic impact, then it is likely that this use will be considered fair use and this will be a defense to infringement.  However, if a party uses all of the copyrighted work and this has a substantial impact on the business of the copyright infringer, it is more likely that fair use will not be found.

The Rothman Law Firm has substantial experience dealing with copyright trolls and taking copyright cases to litigation if necessary.  If you are dealing with a copyright troll or have any other issues regarding copyright law, please feel free to reach out to The Rothman Law Firm to request a free consultation.