In-Depth: 7 Steps To Avoid Being Trolled

Supplement to Copyright Trolls Are Watching Your Website (Barack Ferrazzano Client Alert, January 2020).

Take Steps to Avoid Being Trolled

1. Do not assume that any content you find online is free to use. There is a persistent, commonly held, but false belief that content easily found online is available for anyone to use, or that if your brand is featured in a photograph with a hashtag referencing your brand, that you are free to use the photograph. However, almost all online content is protected by copyright, and you will almost always need permission to reproduce it via web and social media regardless of any accompanying hashtags. This is true for all entities — commercial or non-profit.
2. Do not assume that unauthorized use will qualify as “fair use.” The copyright doctrine of fair use may protect some unauthorized uses from copyright infringement, but there is widespread misunderstanding of this concept. “Fair use” does not correlate to our normal concept of what is "fair." Fair use is a very difficult legal doctrine that involves looking at many factors with varied results in the Courts. Before you decide any content is fair use, contact us so we can advise you on the relative risks of going forward. The following examples will not necessarily excuse unauthorized use or insulate you from challenge:
   1. Giving credit to the copyright owner.
   2. Humorous or parody use.
   3. Selling photographs yourself or “only” using them on Instagram.
   4. Celebrities posting paparazzi shots of themselves. The owner of a copyright in a photograph can enforce rights even against the subject of the photograph.
3. Get permission first. The old adage of “it’s better to ask for forgiveness later than permission now” is the wrong strategy for dealing with today’s copyright trolls. A better strategy is:
   1. Not just taking an image from Google images or another’s reposting.
   2. Find the site where the image was originally posted via information provided with the search results or a reverse image search.
   3. Contact and confirm the site is the copyright owner and can grant you permission.
   4. If you are suspicious, ask for their copyright registration number and check it.
   5. Generally, it is safest to source images from reputable stock agencies (Getty Images, Shutterstock, etc.). Creative Commons is another resource to find all kinds of content available for various levels of licensing.
   6. When in doubt, call us to evaluate and don’t use the content.
4. If you let others post content on your site, establish DMCA protection. As a website owner, you can be liable for infringement if you let your users post content to your site, even if you had no idea the content was infringing and even if your terms of service prohibit posting infringing content. There is a provision in the Act called the Digital Millennium Copyright Act (DMCA) that can provide “safe harbor” from such liability, but only if you follow the required DMCA process:
   1. Appoint a DMCA agent to receive copyright complaints. Your agent must be registered with the Copyright Office and contact information for your agent must be posted on your site.
   2. When you receive an infringement notice (that substantially complies with the notice requirements), you must remove the allegedly infringing material from your site and notify the user who posted it.
   3. If that user submits a counter-notice (that substantially complies with the notice requirements), you must restore the material, unless you receive notice from the copyright owner that it has initiated a lawsuit.
5. Obtain appropriate contracts and indemnification from your web designer and social media content providers. If you hire a vendor to design your site or run your social media presence, make sure you have a written contract with that vendor. The contract should:
   1. Have a recital that the vendor has obtained licenses for use of any third-party content.
   2. Include a provision requiring that you review those licenses.
   3. Include a provision that the vendor indemnifies you against any claims that content provided by the vendor infringes anyone else’s intellectual property, including specifically copyrights.
      
      Keep a copy of the vendor agreement and the third-party licenses safely in your files. You will need these to refute a copyright troll claim. We can advise you on appropriate warranty and indemnity language to include in your agreements.
6. Consider advertising injury insurance. Many comprehensive general liability insurance policies include advertising injury protection. Depending on your level of activity on social media or how active you are regarding your website, obtaining advertising injury insurance, although expensive, may still be the right plan for you. We can discuss the policy options, design provisions with you, and help you decide whether such insurance may be right for you.
7. Do not ignore a copyright troll demand. If you receive a copyright troll demand, take it seriously and follow this procedure:
   1. Consult us to evaluate the situation and determine your best strategy as soon as you receive a demand from a copyright troll.
   2. Immediately remove the images in question.
   3. Confirm where you obtained the image, the circumstances surrounding its posting, how many views it received, and any other extenuating circumstances that might help explain the situation.

A prompt rebuttal from an attorney tends to be the most effective way to get the claim dropped or the monetary demand significantly reduced — the more information you can learn about the posting in question, the better.