Beware the Copyleft Trolls

When photographers sue after Creative Commons Licenses go awry.

The scam works a little like this:

A photographer posts their work online under an outdated Creative Commons license, such as version 2.0, that does not give licensees the right to fix license problems within 30 days of notice, as do the current CC 4.0 licenses.

The photographers lurk until someone unwittingly posts the photograph online without proper attribution.

Then, they sue. And they sue. And they sue.

This is the topic of my most recent legal research paper, “Rise of the Copyleft Trolls: When Photographers Sue After Creative Commons Licenses Go Awry.” I’ll be presenting it in the Law & Policy Division of AEJMC at the virtual annual conference in August.

I became interested in this topic because it happened to me — or at least, to people I try to help, the students in the non-profit online news publication here at my university. A student posted a stock image from a German photographer named Marco Verch that was under a CC-BY (version 2.0) license. They used it as a thumbnail to link to a news story without the attribution. Months later, they got a demand letter requesting $750 to retroactively license the photo, ending with the line, “failure to resolve this matter of unlicensed use within 21 days will result in escalation to one of our partner attorneys for legal proceedings.”

I checked and, indeed, Verch had filed dozens of lawsuits in U.S. federal courts in recent years, including 41 cases in 2019 and 2020 alone. He employed Pixsy, a company that aids photographers in extracting cash from users who posted their photos online. Pixsy, in the demand letter, noted that taking the photo down or correcting the attribution wasn’t enough: “Removal of the image from your website does not resolve the period of unlicensed use, and it remains that our client be compensated for the previous use of their work.”

I was going to include a CC-licensed image here but I didn’t want to get sued for messing up attribution so here’s a couple of little chairs in my living room that I took. Please don’t sue me.

In short, facing a lawsuit and months of litigation, with a seemingly uphill battle over fair use and thousands of dollars of costs, we just negotiated down the demanded fee and settled. It was an expensive copyright lesson learned in our student newsroom.