copyright fair-use
Copyright shakedown
<p>I've been receiving threatening letters from a law firm regarding a meme I posted on my blog 2 years ago. Turns out the image was derived from a photo by Agence France Presse. I took it down immediately but they claim I owe $938 for the infringement. I can't pay this amount -- my blog makes no income -- and I originally thought it a scam. When a law firm called I told them they wouldn't see a penny of this blackmail money. Wouldn't this be covered by fair use?</p>

<p>French law protecting authors' rights are fairly strong, and there is no doctrine of "fair use" there. Even in the US (where "fair use" is probably the biggest exception to copyright), it is unlikely that unauthorized distribution of a photographic work would be found to be fair use. It would have a significant effect on the market, and the amount of copying was (apparently) quite substantial (i.e. the whole photo?). However, it is possible that you could prevail on a fair use defense, as in <a href="https://www.scribd.com/document/383050982/Brammer-v-Violent-Hues-Productions" rel="nofollow noreferrer">Bramer v. Violent Hues</a>. It probably comes down to exactly what the original photo was of and used for, and how you used it (which is where your attorney will tell you whether you should save yourself the expense of a trial, or is it worth it to fight it).</p>

<p>Well, the statute of limitations on a civil copyright infringement claim in the US is 3 years, so if it has already been 2+ years, then you could always wait to see if they file suit. 17 U.S.C. 507(b).  </p>

<p>The $30,000 max penalty is the max for non-willfull statutory damages, which are damages selected in lieu of actual damages and are set by the judge in an amount between $750 to $30k.  17 U.S.C. 504(c).  If the judge believed that you had no reason to believe that your use of the image was an infringement, then the judge can reduce the statutory damages to as little as $200.  Id.   </p>

<p>Further, statutory damages are only available to copyright owners of published works if the owner registered the copyright within three months of publication, or if not within that three month period, then <em>before</em> the infringement occurred.  17 U.S.C. 412(2).  So, they may not even be able to seek statutory damages, and no attorney is going to spend time and money suing you over de minimis actual damages.</p>

<p>Based on my experience as an attorney, it is extremely unlikely that they will sue you to recover $938.  Even the full $30k may not be enough to cover the fees for discovery and a trial, and that amount is at the discretion of the judge.  You sound like an innocent infringer and the judge would be much more likely to award the minimum/low statutory damage amount even if he didn't think you qualified for the reduced $200 damages.</p>

<p>If you choose not to ignore them and hope they don't sue before the statutory deadline, then you should ask for a copy of the Copyright Office's certificate of registration.  The certificate of registration should include an effective date and other identifying information related to the work and the copyright holder.  Tell them that you want the information to be sure they are not a scam/may have a legitimate claim.  Once you have the registration certificate you can determine whether or not they could pursue statutory damages.</p>

<p>In the event they do sue you, definitely don't ignore the complaint and definitely hire a lawyer to respond.  Your potential defense based on the statute of limitations is an affirmative defense and must be plead in your answer or it will be waived.</p>
