Summary

A blogger who earned $6 from a blog post was sued for$ 150,000 over incorrect attribution of a Creative Commons image but won the case against the copyright troll.

Abstract

The blogger in question used Creative Commons images in his posts, which generated minimal income, and was subsequently sued for a substantial sum due to incorrect attribution. Despite the photographer, Larry Philpot, seeking the maximum statutory damages for copyright infringement, the court dismissed the case. The ruling highlighted that Philpot's primary income from photography was through settlements rather than sales, undermining his claim of significant loss. The case underscores the importance of proper image crediting, the legal implications of commercial blog use, and the potential for so-called 'copyright trolls' to exploit copyright law for financial gain. It also serves as a cautionary tale for content creators to understand and adhere to the specific terms of Creative Commons licenses.

Opinions

The author suggests that any blog generating income, however small, may be considered commercial use and thus subject to stringent copyright laws.
The US Copyright Office and Eric Goldman, a legal expert, are referenced to support the argument that the blog's use of the photographs was commercial due to its monetization through advertising revenue.
The term "copyright troll" is used to describe individuals like Philpot, who are perceived to exploit copyright law to extract settlements from alleged infringers, rather than genuinely selling their work.
The lawyers representing the defendant, Daniel C. DeCarlo and Claude Reynaud, are portrayed as successfully defending against an unjustified lawsuit, implying that fighting such claims is both possible and necessary.
The author emphasizes the importance of correctly crediting images and understanding the nuances of Creative Commons licenses to avoid legal challenges, pointing out that not all such licenses are equal and may have specific requirements.
The author advises that when using ShareAlike-licensed content, any derivative works should also be distributed under the same license, maintaining the ethos of free distribution and use.
The article concludes with a warning to stay within the bounds of Creative Commons licenses to prevent the need to defend against costly and stressful litigation.

Blogger Who Made $6 is Sued for $150,000 over Creative Commons Image

And he won the court case against the copyright troll!

Photo by Tingey Injury Law Firm on Unsplash

Imagine you’ve written a couple of blogs, downloaded a few Creative Commons images, and earnt $6 for one blog and $120 for the other. You might not be dancing in the streets at those earnings, but you’d be happy people read them, right? And $120 isn’t bad!

Then someone comes along and issues you with a legal demand for £150,000 *per photograph* for copyright infringement because, apparently, you didn’t credit his Creative Commons images correctly. You missed off his name.

This actually happened.

Getting sued over a blog

According to Eric Goldman on the Marketing and Technology Law Blog:

The defendant, WOS, published two stories using Philpot’s photos that provided attribution, but not the precise attribution required by the CC license.

According to the US Copyright Office:

Philpot sent WOS a cease-and-desist letter concerning the photograph that did not credit him at all. In response, WOS added Philpot’s username.

But that was not the end of the matter. Looking to monetise the situation, Philpot sued for copyright infringement.

Philpot sued, seeking $150,000 of statutory damages per photo. WOS admitted revenue of $6 from one photo and $120 from another. (source)

The defendant offered to handover his profits from the two blog posts. But that wasn’t enough to placate Philpot, who wanted a better settlement and went after the maximum amount permitted in cases of copyright infringement of this nature — $150,000 per photo.

Monetised blogs and ‘commercial’ use

Eric Goldman explains why the monetised blog was considered to be commercial use…

WOS’s use is commercial because it is a for-profit business, it generated revenues from the pages, and “it fully copied Philpot’s photos to draw attention to articles that had nothing to do with the photos themselves.”

So any blog that generates an income may be considered commercial use in law. That includes Medium, by the way.

The US Copyright Office wrote:

the court found the use to be commercial because, despite the limited profitability of WOS’s articles, the photographs were used to generate advertising revenue based on page views.

Fair use

The defendant applied for the image to be legally declared as ‘fair use’, however this was declined.

The US Copyright Office recorded:

Preliminary ruling; Fair use not found

The outcome of the case

The case went to court, and the case was dismissed. The court noted that Philpot was not successful at selling his photography. In fact, “the principal way that Philpot appears to make money from his photography is settlement agreements in copyright lawsuits.” (source)

His argument that correct attribution would have provided valuable advertising for his photography was not regarded as a credible argument, given his lack of previous success in photography sales. So it appears that he was unable to demonstrate significant loss.

The lawyers on the case, Los Angeles Partner Daniel C. DeCarlo, with the assistance of New Orleans Associate Claude Reynaud said:

In this case, Mr. Philpot claimed that our client infringed his copyright in a photo of Tom Petty. Ultimately, Mr. Philpot stipulated that our client was the prevailing party, and the case was dismissed with prejudice.

The business of copyright trolls has exploded in the past decade along with the explosion of social media. A “copyright troll” has been defined by one circuit court as one who brings “strategic infringement claims of dubious merit in the hope of arranging prompt settlements with defendants who would prefer to pay modest or nuisance settlements rather than be tied up in expensive litigation.”

We were pleased to be able to assist our client in fighting back against what we believed to be an unjustified lawsuit. (Source)

The moral of the story is that you can win these cases, but for all that stress and anxiety, legal costs that you may not get back, time and hassle in defending yourself, it’s better to credit your images correctly.

Check the licences

To avoid legal challenges, always check that the CC licence covers the image’s intended use — because not all Creative Commons licences are equal.

Some don’t allow monetisation or commercial use.
Some don’t allow you to change the image or crop it.
Some insist on proper crediting; some don’t require crediting at all.
Some must be shared only under ShareALike terms, which means:

If you remix, transform, or build upon the material, you must distribute your contributions under the same license as the original.

To me, this says that if you downloaded the image for free, your own material should be distributed for free and your work should also be placed under a Creative Commons licence for others to use freely — because that would be ‘distributing your contributions under the same license as the original.’

The Wiki.CreativeCommons.org explanation is consistent with my interpretation, but goes into more detail.

Be careful to stay on the right side of any Creative Commons licences because you don’t want to have to defend your mistakes in court.

People are Being Sued for Using Creative Commons Images

And it’s costing them thousands

medium.com