The following article is a parody of copyright trolls who send demand letters and sue for copyright infringement based on third parties’ use of photographs.  My recent article, “Defending Against Photograph Copyright Troll Infringement Cases” provides steps to combat these kinds of copyright infringement troll cases to minimize liability and defense costs.  

Copyright Trolling — Plan Your Photographs with Copyright Infringement Claims in Mind

Remember that the key to this is converting a hobby (digital photography) into an income stream paid by yet unknown third parties that are going to use your photograph in the future.  With this goal in mind, it is generally best to take photographs of generic scenes of common interest.  Examples include famous building and landmarks, highways and other roads, city images, etc.  You will want to select something that is generic enough to appear in an Internet search for images and that third parties would want to include in their websites without realizing they are potentially violating your copyrights.  That’s how you can monetize the images.  

Register Copyrights in the Photographs

Under the U.S. Copyright Act, a copyright owner can recover attorney’s fees plus statutory damages if a copyright is registered in the photograph before infringement begins.  This step is critical in the money-making scheme.  If a copyright is not registered before the infringement begins, the author can still recover actual damages although those require more proof.  Also, a lawsuit cannot be filed to enforce the copyright without a registration, so this is a critical step.  One consideration on this is whether to register the copyright in the photographer’s name or assign the copyright to an LLC or other entity.  Since your strategy is to file lawsuits or at least threaten to file lawsuits, you may wish to have a company as the plaintiff in case the lawsuit goes poorly or you’d like to shield yourself from the discovery process.  

Position your Photograph to be “Found” Online

Because you cannot make money from your photograph without someone using it without your permission, the photograph image must make its way onto the Internet somehow and be attractive to Internet users conducting searches for a particular image.  Therefore, standard SEO tactics should be employed like using alt tags, file name, and other meta tags for the digital image file to help people find the image.  This strategy will not work unless you have some means of finding usage of the image on the Internet, so you should also include a unique identifier in the image file.  Through use of special software, you can craw the Internet to locate uses of the image file, which will be your target list for cease and desist letters.  Equipped with this information, the image file needs to be published on the Internet somehow so that it gets indexed by Google and shows up in search results.  Before publishing the image, be sure to include a copyright notice on the digital file.  This will enhance your damage claim later. 

Word of caution – you do not want to get caught putting the photograph out on the Internet with the intent that it be copied.  There is a good chance a judge or jury will not look favorably at this approach, which could be viewed similar to entrapment.  But if your image never makes it onto the Internet you won’t be able to threaten lawsuits to extract money on this venture… 

Go Fishing for Copyright Infringers

Now that your image is “live,” you can sit back and run Internet searches for unauthorized usage of the photograph.  As we discussed above, your approach is to have a generic photograph with a high level of interest to bait unknowing third parties into downloading and using the image on their website.  To enhance your results, you can consider adding additional SEO steps to increase the chances of the image being found.  

Send Cease and Desist Letters

Once you catch use of your image on a website, now is the time to send a cease and desist letter with a demand for payment.  Because you already obtained a copyright registration, you can threaten attorney’s fees as a way of driving up the damages demand.  Also, if use of the image somehow doesn’t display your copyright notice, you can include an additional claim that the website operator violated your DMCA (Digital Millennium Copyright Act) rights.  For damages, you can claim all profits and/or revenue generated by the website or a particular page within the website using the image.  From there and the threat of substantial attorney’s fees, you can work downward until you reach a settlement.  

Hire a Contingent-Fee Attorney

Paying attorney’s fees will increase your costs and drive down your net profits from the few minutes you spent taking the photograph.  So we want to avoid that.  To minimize risk, you could hire an attorney that handles photograph copyright cases on a contingent fee.  You give up a percentage of the recovery, but are not out of pocket if the case is unsuccessful.  Once retained, the attorney will send increasingly aggressive demand letters touting the specter of a lawsuit and additional attorney’s fees and damages.  

File Suit if Demands Unsuccessful

If the user of your photograph won’t play ball and pay you thousands of dollars for the minutes you spent taking your generic photograph, it may be time to file suit to increase pressure.  Since you hired a contingent-fee lawyer to pursue your claims, you likely will only incur about $400 in court filing fees.  After the lawsuit is filed, the goal is to reach a quick and lucrative settlement before you get deposed or have to provide sensitive documents.  Often, this will happen before or at the court-ordered mediation.  

Rinse and Repeat Your Copyright Trolling Against New Targets

Once you have obtained your first “settlement,” you can repeat the process against new targets, thereby increasing the overall return on the time spent taking the hobby photograph.  An advanced technique is to demand that the settlement not be in the form of paying damages and attorney’s fees, but in the form of a “license agreement” for past usage of the image.  From there, you can argue that this is the licensing rate for use against future targets, even though this is not an entirely accurate since most of these settlements are driven by a defendant’s desire to avoid future attorney’s fees as opposed to the actual value of the use of a generic copyrighted photograph.  

If your attorney is agreeable, you make be able to develop some form letters you can send before the attorney’s contingent fee kicks in, which will increase your net profits by decreasing expenses.

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Caution to Copyright Trolling

This process may work and even be a profitable enterprise until you meet an attorney that is experienced in defending photograph copyright troll cases.  Should one of those attorneys appear on behalf of your target, you could not only not recover any damages but run the risk of paying the other side’s attorney’s fees if they are the prevailing party or convince the judge that equity requires the shifting of fees.  

As with anything, nothing ventured nothing gained.  

For more information on copyright litigation, see our Intellectual Property Litigation Services and Industry Focused Legal Solutions pages.