No Registration at Time of 'Infringement'

Types of Creative Commons licenses

Dear Rich: I reproduced a Creative Commons photograph on my blog. The photographer posted the picture to use for free. A few weeks later, I got an email from a company representing the photographer saying that I was infringing because I didn't list the photographer's name. They wanted $750 to settle. I took the photo down immediately. I asked for proof that they owned the copyright, and they wrote back that the registration was pending and that I had 21 days to respond before they handed it over to their attorneys.

The not-so-good news is that you'll probably have to pay something to make this go away. The good news is that you should be able to bargain your way down.

Copyright and credit. The photographer's Creative Commons license allows anyone to reproduce his image provided that the user gives appropriate credit, provides a link to the license, and indicates if changes were made. In other words, if you credit the photographer, you're not infringing. You failed to provide attribution, so you're not entitled to the license, i.e. you are infringing, The company can sue you and $750 is the minimum amount of statutory damages that a judge can award for copyright infringement. 

Registration and bargaining. If the copyright wasn't registered before you posted the picture (or within three months of the first publication of the photo), the photographer is not entitled to statutory damages (the $750 figure). Instead, he can seek actual damages. Actual damages are equal to "the amount a willing buyer would have been reasonably required to pay a willing seller at the time of the infringement for the actual use." In other words, how much does the photographer earn from a similar license? Because the photographer offers the license for free (as long as attribution is provided), the damages are difficult to discern and probably are less than $750. We recommend that you try bargaining the settlement figure down to $250 using the arguments above. And, of course, when negotiating, never split the difference.