Skip to content

The Copyright Lawsuit. What was THAT about?!

Posted in Uncategorized

Hey there, Trout Nation friends! Remember a few weeks ago when I was like, surprise, I’m getting sued? Well, now that the suit is settled, case closed, glad that’s over, I can tell you what happened and more importantly, how to protect yourself from some common mistakes, because “oh shit, I didn’t know it worked like that,” is not a valid legal defense.

Like four years ago I had a series on this blog called “Double Steve Bonus Monday.” Born out of an off-handed comment a friend made after her young daughter’s surgery (anesthesia left the poor kid seeing Blue’s Clues in stereo), I posted an image of someone either named Steve or with a name from that same Steve-centric group, like Stephanie or Stefan. I would repeat this image one on top of the other with no explanation whatsoever as to why they were there or what “Double Steve Bonus Monday” meant. It was just garden variety Jenny weirdness that amused no one but myself. One of the Steves was Steve Forbes. And that’s the photo I got sued over.

You have no idea how much I laughed over middle-class me getting sued about a picture of a billionaire.

About a year ago, I got an email from a law office. I get a lot of vaguely threatening emails from law offices and they’re always very obvious scams claiming that you owe money to whatever random company you don’t know and you better settle up or they’ll send someone to your work to get the money and you’ll be embarrassed and I’m like, jokes on you, I embarrass myself at my work all the time. But this one looked pretty legit. They were contacting me on behalf of their client, whose photo I had used on my website without a license. And they wanted nearly $7,000.00 to make things right.

I thought, well, that’s weird. Why would I need a license? I didn’t use it on a book cover or a t-shirt. I didn’t put it on an album cover or run it behind a paywall. I didn’t sell the image and I didn’t make any money from it. It wasn’t like these were the days of the wild, wild internet west and I simply didn’t realize there were laws governing the use of other people’s photos. In fact, I thought I had a pretty good handle on what did and did not constitute fair use (I did not) and that since my site wasn’t monetized at the time of the post and the photo was used in part as a parody, I was in the clear.

An industry professional I spoke with felt the same way. “This seems like it would fall under fair use,” they said. “I wouldn’t worry too much about it. Just take it down and they’ll back off.” On top of that, this person said the email felt “scammy” because of the upfront demand for money. Several people I spoke to about it, all of them professionals in creative fields, felt that coming out of the gate asking for cash was a red flag. Besides, anyone who’s ever written fanfic knows that a C&D is the first step! Nobody takes your money unless you disregard the C&D!

All of that is wrong. You might be sitting at home right now thinking of the time you used a photo of a celebrity in your IG book promo or you tossed a few song lyrics into your fanfic and maybe you’re sweating a little bit, but you’re thinking that of course, you’d take that down if you received a C&D. But despite the conventional wisdom spouted on the internet, the first step in an infringement lawsuit is not a C&D. The client and their attorneys are under no obligation to give you that chance to remove the material before they attempt to recover financial damages.

Also, the way I used the image did not fall under fair use. Though Steve Forbes was being made the target of a joke (or parody, to get all fair use-y), it wasn’t Steve Forbes suing me. It was the photographer, suing because I had used his work without permission. If I had altered the image or copied the image in a parody of that particular photographer’s style, that would have been a parody, but being a photo of the subject of a parody wasn’t enough to make it fall under fair use. A lot of you are probably going, “duh, Jenny, anybody could have figured that out,” but based on the conversations I had with people who work with this stuff all the time for a living, it’s apparently not that obvious.

My response to the first email was to remove the images from the site and simply say, hey, I don’t have that kind of cheddar lying around, this is all I can do for you. I figured that taking it down was the end of things, but I was once again contacted with the demand for money. I responded that I had removed the photo, no malicious infringement was intended, and they should consider the matter closed because I still didn’t have that amount of money available. When they contacted me yet again, I lost my patience. I had done some research on this law office and learned that they make their money with software that crawls the internet doing reverse image searches of all their clients’ registered copyrights. They then issue the offer of a settlement and threat of a lawsuit.

After responding in good faith to a few of their attempts to threaten me with judgments and court costs in excess of hundreds of thousands of dollars, I snapped. I told them that I had removed the photo and that while I respected their hustle, I wasn’t going to pay them because I simply did not have the money.

I didn’t hear from them for months. When they contacted me again, it was via first class mail, with one last attempt to collect, and the prepared brief they would be filing. At that point, I sought legal counsel. Here, I began to understand just how dire my position was. The work was not transformative in itself. And though I hadn’t sold the image or put it on anything else I sold, I did monetize my website in 2017 with an affiliate link, while the post from 2015 was still visible on the site.

To date, I’ve made $37.00 from the affiliate link, but the law wasn’t on my side; they were suing for statutory, not real, damages, meaning the judge could have awarded them anywhere from $700.00 to $150,000.00 dollars plus court fees and the legal fees paid by the client. Since it was a Double Steve Bonus Monday, I’d posted the photo twice. If I lost, I was warned, I could potentially wind up with nearly half a million dollar judgment against me. Obviously, I decided to settle.

Now, I want to reiterate that this was not malicious infringement. I did not post this photo thinking, “Aha! I will use this photographer’s work and become rich! Fuck that guy!” I just didn’t understand fair use the way I thought I did (this will not be the last time that my supreme confidence in my own understanding of a topic will be my downfall). And I also want to reiterate that I appreciate copyright lawyers and the work they do to keep creatives safe. I’m not saying I didn’t fuck up and do something that infringed on someone else’s copyright; I did and I’m horrified that my ignorance resulted in me doing something I find repugnant. But I don’t think I’m the only person who carelessly commits infringement without realizing it, so here are some tips to avoid lawsuits:

  • Always use the usage rights filter tool when Googling. I could have saved myself a lot of hassle by knowing this trick prior to 2015. You can do a Google image search for pictures that are labeled for reuse for your needs.
  • Know what constitutes commercial use. One tiny affiliate link is all it takes to bump your site from noncommercial into commercial use. Noncommercial use is also subject to copyright laws, but it’s a lot more difficult to argue against statutory damages if you’ve even attempted to monetize the content. And it doesn’t matter if you used the photo on your blog long before you monetized it.
  • Don’t use photos with watermarks on them, for god’s sake. That’s what the watermark is for. There’s currently an author on Twitter using a watermarked photo as her profile header while she’s out there screaming about how she’s going to sue everyone for everything under the sun and I just stare at it every time I see it. The watermark is clearly visible. If all your images bear the ghostly mark of “SHUTTERSTOCK” across them, it’s hard to believe the person using it had no idea it was copyrighted. (For a while, there was something of a meme to use blatantly watermarked photos in jokes. This was a bad idea).
  • Don’t use photos of celebrities in your book promo! Authors post fantasy casts on their blogs all the time and we don’t think anything of it. It’s just our blog, right? We’re just excited to share the vision in our head with our readers. That’s great! But when we use photos to do it, we not only tend to use copyrighted images in our posts, but we might be breaking laws against using the image of the person in the photograph, depending on what text or links accompany it. You could not only be infringing on the photographer’s copyright, but also the likeness rights of the person in the photo.
  • Save proof of your licenses. This is another bad habit I know that a lot of people have: thinking, “Well, if anything ever comes up regarding this stock image, there’s a record of my purchases on the site.” But what if the stock site where you bought your book cover images shuts down, taking your account info with it? You can’t prove you purchased that license if you haven’t downloaded it or taken a screenshot of your receipt.
  • Make sure the photo you used is actually the one you’re being sued over. Let’s say you did everything right. You used the Google image search tool and you found a photo labeled for reuse or covered under a creative commons license. You’re using it in a way that is covered by its usage rights. And you suddenly find yourself on the receiving end of a “pay up” letter. While I researched my situation, I found cases where people had been sued by law firms using various types of software to search for their clients’ photos online. Only, the photos they sued over didn’t belong to their clients; they just happened to be very similar shots by virtue of a group of photographers standing in the same place, shooting from similar angles. This is most common when people use images taken at large events, like press conferences and political rallies, but it has happened (in at least one case, a photographer was sued for using his own photo because it looked so much like a photo taken by the photographer who’d been standing behind him). Before you pay up, make absolutely sure it’s the same photo.
  • Be sure that you actually understand what “fair use” is. Again, a lot of us don’t. Fair use doesn’t mean just not monetizing something or simply using it for internet fun. Do your research and if you’re in doubt…don’t use it. Or, buy a license. Take it from someone who had to endure almost a year of stress over this and who is now slowly crawling through old posts to remove any copyrighted images I had assumed I was using properly.

What about all those gifs, Jenny? You may be asking. That one is trickier, as there has never been a ruling in a case of gifs and copyright infringement, but let me tell you: if a ruling came down tomorrow? I would remove every single one from my site.

Since I went public about all this, Trout Nation has helped me out considerably. So far, you guys have donated $5,800.00 to my legal defense GoFundMe (the full $7,000.00 will cover the settlement and some of my legal fees) and I am beyond grateful. A fantastically good Samaritan financed the full settlement, so the GoFundMe money is going to them. Anything I can’t pay off via GoFundMe I’ll pay off as their credit card bill comes in. This was so kind of them, as I was able to avoid taking out a high interest loan. Not everyone has that kind of support; I’m super lucky to have so many people out there who have my back and again, I am profoundly grateful for that support. But knowing that not everyone has the kind of support makes me super nervous for other members of the writing community who may be unwittingly making the same mistakes. “Ignorance of law excuses no one,” as the saying goes, and we all need to be more vigilant about the ways we’re using images on our blogs and social media.

Did you enjoy this post?

Trout Nation content is always free, but you can help keep things going by making a small donation via Ko-fi!

Or, consider becoming a Patreon patron!

51 Comments

  1. Fuck You Jenny
    Fuck You Jenny

    I find it super hilarious that someone who has a hair-trigger tendency to make malicious and false claims of plagiarism got successfully sued for infringing someone’s copyright.

    April 1, 2019
    |Reply
    • JennyTrout
      JennyTrout

      I find it super hilarious that you were here to make this comment the instant this post went up. I’ll let my landlord know he’s not getting a check this month since I’m living rent-free in your roomy little head.

      PS. I wasn’t “successfully sued”. Learn to read.

      April 1, 2019
      |Reply
      • Kyra
        Kyra

        You’re too generous, Jenny. I wouldn’t call this person’s head “roomy”. To me it looks like a small and bitter place – certainly nowhere I’d want to spend even a minute inside. To the commenter, Jenny didn’t have to do this. She never had to say a word about it, could have played it close to her vest and avoided the gloating of jerks like you. Instead she shared her experience as a cautionary tale for the benefit of others. I wonder when was the last time you stuck your neck out to benefit strangers. I don’t know you (thank the good Lord) but based on your behavior here I’m gonna go with probably never.

        April 1, 2019
        |Reply
    • Larissa
      Larissa

      I’m over here laughing at the OBVIOUS identity of this poster, Jenny. Fuck them, they still can’t read.

      April 1, 2019
      |Reply
      • JennyTrout
        JennyTrout

        Honestly, I have no idea who they are. Huh. Guess I just don’t care about them as much as they obsess over me.

        April 1, 2019
        |Reply
    • merry
      merry

      Why do you need to do this?

      April 2, 2019
      |Reply
    • Dove
      Dove

      Your sense of humor needs a map and a compass.

      April 3, 2019
      |Reply
  2. Ren Benton
    Ren Benton

    Glad it’s resolved and you have one less thing to stress about.

    April 1, 2019
    |Reply
  3. Tami
    Tami

    Holy fuck. First— I am so sorry you had to go through this. I would have dropped dead from fear the moment I got the letter. Because I’m lucky if I have two nickels to rub together at any point. Secondly, thank you for the warning. You probably just saved a lot of asses with this post and that makes you a superhero.

    April 1, 2019
    |Reply
    • Jules
      Jules

      She surely saved my ass, as I tend to cast my stories with famous people. As much as I would love to share that cast with others, so they can see my weird creative inspirations, I now know not to do that. I do not have $7,000 hanging around just waiting for someone to “catch” me.

      So thank you Jenny. I, and many of us, appreciate your taking one for the team. 🙂

      April 2, 2019
      |Reply
  4. This is a great caveat Jenny. And for something as innocent as a site/blog I wouldn’t have thought about it. I’m glad your ordeal is over (but what a thing to go through).

    Thanks for helping others out.

    April 1, 2019
    |Reply
  5. Elyssa
    Elyssa

    This happened at the museum where I used to work. My predecessor used a picture of a music artist on our tumblr, and the museum got hit with a $5,000 lawsuit/fine situation. Because we were a non-profit, it actually DID fall under fair use, but also as a non-profit we did not have the money to go to court in New York to fight it. So we paid. It sucked all around. It did, however, give me a very beneficial crash course in fair use.

    April 1, 2019
    |Reply
  6. Amalthea
    Amalthea

    I just want to applaud you for not posting the photographer’s name, because holy fuckballs what a douche canoe to sue after you took things down! Glad you were the better person and took a stressful situation and turned it into a learning opportunity for others.

    April 1, 2019
    |Reply
    • JennyTrout
      JennyTrout

      Well, I mean, I don’t see it as necessarily douchey to protect your copyright, especially if since you don’t protect your copyright, it’s harder to do so in the future. However, I feel like some law firms are using this as a moneymaker and the clients probably aren’t getting the bulk of these settlements.

      April 1, 2019
      |Reply
      • Jules
        Jules

        I would like to think the photographer was satisfied with your taking it down and apologizing for using the picture and it was the lawyers, who I agree, are using this type of thing as a cash machine, pushed him/her into fighting for the money because that part of it comes across as more just blatant greed. You took it down, the copywright is saved, what is the point in bringing it to court? It just seems like the lawyers extorting people who don’t know what they are doing.

        April 2, 2019
        |Reply
        • Jules
          Jules

          sorry about the “w” in copywright/copyright. I can never get that word right. It shouldn’t be that hard, but it is.

          April 2, 2019
          |Reply
      • Amalthea
        Amalthea

        No, copyright protection is indeed important— no argument there— its just the way it proceeded. Still, I’m so happy it’s settled and you can move on 🙂

        April 2, 2019
        |Reply
      • Jess
        Jess

        “However, I feel like some law firms are using this as a moneymaker and the clients probably aren’t getting the bulk of these settlements.”

        Jenny, I was going to say this exact thing. The photographer had every right to protect their work, and you were indeed in the wrong from a legal standpoint.
        However unless this person had personally seen the photo on your blog, they probably weren’t even aware of the situation until the lawyers’ eyes went all cartoon-dollar-signs.

        April 2, 2019
        |Reply
      • And let’s face it. It’s a rare creator who wouldn’t be desperately grateful for an unexpected $7K dropping into their bank account since few of us are so successful it wouldn’t make a difference and most of us are starving, although the law firm took a hunk.

        ” I had done some research on this law office and learned that they make their money with software that crawls the internet doing reverse image searches of all their clients’ registered copyrights. ”

        I should not have been surprised this practice exists, but I had never even considered such a thing.

        April 10, 2019
        |Reply
  7. Moe
    Moe

    It happened at my place of work. A person put up a blog post and got a picture “off the internet.” Two months later we got a nasty letter from Getty Images (they are the absolute worst) wanting $900. We ended up settling for $200 but it was awful to go through.

    April 1, 2019
    |Reply
  8. VeniV
    VeniV

    Ugggghhh. That’s horrible but I’m glad it’s resolved.

    In regards to doing fan cast posts, would links to certain pictures be more acceptable? Just a random thought that occurred to me.

    April 1, 2019
    |Reply
    • Diloolie
      Diloolie

      I was thinking just mentioning names and letting people do the googling for themselves.

      April 1, 2019
      |Reply
  9. Sloane
    Sloane

    I hate that you had to go through this, but thank you for sharing about the experience.

    April 1, 2019
    |Reply
  10. jess
    jess

    All i could think reading this is “This is the most capitalist hellscape scenario i can imagine” I’m sorry you had to go through that stress over what is literally the dumbest case of copyright infringement i can imagine. God forbid a lower-middle class person uses a single picture of a famous person on their blog and has an _affiliate link_.
    I’m sure the millions of views you get on that one weird jokepost from years ago definitely took away from that person’s business, somehow. Good thing we have these hardworking lawyers to continue doing the good work of holding up the law on this extremely urgent and important case that i’m sure will make the history books because of how necessary it was to uphold the American Way.

    April 1, 2019
    |Reply
    • Mike
      Mike

      “…literally the dumbest case of copyright infringement i can imagine”

      Google ‘Patent Squatters’ or ‘Patent Trolls’.

      April 2, 2019
      |Reply
  11. Squim
    Squim

    I’m sorry you had to go through that. It seems utterly absurd to me. You used an image as a joke, made no money from it, and yet some predatory law firm gets thousands of dollars out of it?

    It doesn’t sound like protecting the rights of creatives, but more like padding the pockets of lawyers. From a lay standpoint, it seems like the threat to prosecute you is malicious, and they should be the ones having to pay up, not you. It’s extortion.

    April 2, 2019
    |Reply
    • Meg
      Meg

      Photographers have their images used without permission all the time and most of the time it gets shared so much that it’s almost impossible to find the creator. Its really no different than plagiarizing or pirating movies/ books except for the fact that most people don’t think using images found online is wrong. I feel for the person who got sued and think it was a little much but hopefully it will open people’s eyes. Photographers put so much time and money into their work and, for many, it’s their livelihood.

      April 3, 2019
      |Reply
  12. Taryn Love
    Taryn Love

    So glad that you got everything resolved. This was awful. But you have definitely given some good advice to ponder. Take care, Jenny.

    April 2, 2019
    |Reply
  13. Gordon
    Gordon

    I think you missed a point in your precautionary checklist:

    Check who is making the complaint.

    An individual complaining about their likeness and a photographer complaining about an image are different beasts. Certain clearance houses and law firms routinely engage in horrendous overreach just because they can. A good IP lawyer can help navigate the fine legal points and will know who the chronic bad actors are.

    April 2, 2019
    |Reply
  14. Vivacia K. Ahwen
    Vivacia K. Ahwen

    Everyone posts memes, like, all the time. Question: Can everybody potentially be sued for posting memes? I’m not being silly, I think it’s a pretty fair question to ask.

    P.S. This story made me angry.

    April 2, 2019
    |Reply
    • Vivacia K. Ahwen
      Vivacia K. Ahwen

      Oh, also? If there was anything to base this law suit upon, Keisuke Aiso should be a gazillionaire at this point. “Momo” was 100% steal (possibly slander, to boot) and we saw her EVERYWHERE.

      April 2, 2019
      |Reply
  15. Archer
    Archer

    Just a comment about the google filter you mentioned, we use a lot of images at my work and we’ve found out that the filter is not accurate and things slip through.

    Thanks for sharing your experience!

    April 3, 2019
    |Reply
    • Dove
      Dove

      Oh, good point! I guess that ballpoint needs to be amended to using the filter and then confirming that that specific image is available for reuse. Obviously, it’s possible for things to slip through the cracks but it’s easy to forget that happens.

      April 3, 2019
      |Reply
    • If the google filter isn’t reliable, how DO you confirm? I’ve been getting things from wikimedia and creative commons hoping they are reliable.

      April 10, 2019
      |Reply
      • Dove
        Dove

        Check the actual website the image is on and if it says that it’s available for free use. Google Images generally provides a link to the source if you click on it. Those two sites should be reliable but if you’re just using a Google search then it might pull images from anywhere and I believe that’s what they’re referring to here.

        April 10, 2019
        |Reply
  16. Jenny-
    I have a blog where I occasionally post reviews of books I like. I either take my own photo of the book or copy it from Amazon. I’d read that Rona Loren post from years ago and so only posted photos I took or my family (my mother was a professional photographer and gave me permission to use hers.) Are Amazon covers OK or should I re do those, do you think?

    April 3, 2019
    |Reply
    • Tez Miller
      Tez Miller

      Post covers directly from the publisher’s website. (Though if they’re self-published, I’d go with Amazon covers.) Those should be fine, because you’re promoting the work. However, if you published cover art with the title and author removed, that might be dodgy.

      April 4, 2019
      |Reply
    • You’re fine with posting covers because you are making legitimate use of the work to critique it.

      April 11, 2019
      |Reply
  17. Dude. No. Way. Double Steve Bonus Monday caused all this!?! Gah. I am so sorry.

    April 4, 2019
    |Reply
  18. Elizabeth
    Elizabeth

    I was wondering if Jenny Trout or one of you other clever people could answer this question. I’d been considering a blog and one of the parts would be random quotes from books or songs as an idea to spark a post. Just a couple of sentences or lines and then a link to whatever it is at the bottom of the post. I was planning on monitizing the blog because, well, money. Is there an acceptable limit that I can quote in something I’m “making money” off of, or not?

    TIA, and you folks are awesome!

    April 4, 2019
    |Reply
    • Tez Miller
      Tez Miller

      Make sure you include full attribution – not just who said it, but where they first said the quote and link to that. I think as long as you fully cite your sources, you should be OK.

      April 4, 2019
      |Reply
      • Elizabeth
        Elizabeth

        Oh, of course- essentially a bibliography for the post. That totally makes sense. Thank you!

        April 4, 2019
        |Reply
  19. […] pictures of beautiful people–I apologize for the lack of pictures. Unfortunately, due to this recent blog post by Jenny Trout, I’ve decided to play it safe and remove my celebrity “dream cast” pictures from […]

    April 4, 2019
    |Reply
  20. Thank you for taking the time to warn us about this. At first I was very paranoid about what I posted and shared, only using my own photographs. I was starting to relax a bit…it looks like I shouldn’t. (wry grin) Once again, I really appreciate the heads up. (another wry grin)

    April 6, 2019
    |Reply
  21. […] The Copyright Lawsuit. What was THAT about?! is a textbook on how to avoid copyright infringement when using images, and a cautionary tale of what can happen when you use someone’s image without a license, even unwittingly. (Jenny, on the Trout Nation blog. Thank you to Caffeinated Reviewer for the link.) […]

    April 13, 2019
    |Reply
  22. RO
    RO

    My goodness, what a nightmare to go through! Thank goodness it’s all resolved. I’m always pleased to hear about people who perform random acts of kindness for others. Thanks for the feedback and knowledge on how to avoid this. Hugs…

    April 14, 2019
    |Reply

Leave a Reply

Your email address will not be published. Required fields are marked *