Image Copyright Demand Letters: How Photo Licensing Enforcement Works and What Claims Are Really Worth

Summary. Image copyright demand letters arrive by the thousands each year, usually generated after a crawler matches a photograph on a business website to a photographer's or agency's catalog. This article explains how that enforcement business works, who sends the letters, and how the claims move from automated notice to negotiation, federal lawsuit, or Copyright Claims Board proceeding. It then walks through the legal levers that determine what a claim is really worth: ownership and standing, the registration prerequisite and the Section 412 timing rule, actual and statutory damages, fee shifting, copyright management information claims, the limitations period after Warner Chappell v. Nealy, and the defenses of license, fair use, de minimis use, embedding, and the DMCA safe harbor. Key cases are told as stories, including Fourth Estate, Kirtsaeng, Warhol, Perfect 10, Hunley, Goldman, Brammer, and Mango. An extended worked example values a single claim from both sides, and the article closes with common mistakes, an FAQ, and practical takeaways for recipients and rights holders.

Marisol Ortega runs Juniper & Ash, a two-location flower shop in Tucson. On a Tuesday morning she opens an email with the subject line "Unlicensed Use of Copyrighted Image: Case No. 48213-B." It attaches a screenshot of a blog post her shop published in 2019, "Five Peony Arrangements for Spring Weddings," and a second screenshot of the same peony photograph on a photographer's portfolio site. The email says the photograph is owned by a professional photographer represented by an image licensing service, that her use was never licensed, that federal law allows damages of up to $150,000 per work for willful infringement, and that the matter can be resolved for $2,400 if she pays within 14 days. A payment link is at the bottom.

Marisol does not remember the post. A part-time employee wrote it, probably by searching for "peony bouquet" and dragging the first attractive result into the blog editor. The blog gets a few dozen visits a month. She has three questions: is this a scam, do I owe anything, and is $2,400 a fair number?

The answer to the first question is usually no. Letters like this one are the visible end of an established industry that uses image-matching software to find photographs on the open web and convert unlicensed uses into license fees. The answers to the second and third depend on a handful of legal facts the letter almost never states: who owns the photograph, when it was registered, when the post went up, what a license would actually have cost, and whether any defense applies. Those facts, not the letter's adjectives, set the value of the claim. This article explains the business, then the law, then how the two meet in a negotiation.

The short answer

The letters are real and usually legally grounded. Copying a photograph onto a website without permission is infringement of the reproduction and display rights in 17 U.S.C. § 106. Intent does not matter to liability. Taking the image down stops the clock on new harm but does not erase past infringement.
Registration timing is the single biggest value driver. Under 17 U.S.C. § 412, if the infringement began before the photograph's effective date of registration (and outside the three-month grace period after publication), the owner cannot recover statutory damages or attorney's fees. That converts a claim with a theoretical $150,000 ceiling into a claim for the actual license fee, often a few hundred dollars.
Where statutory damages are available, the realistic range is still usually modest. The statute allows $750 to $30,000 per work, up to $150,000 if willful, and as little as $200 for innocent infringement, 17 U.S.C. § 504(c). Courts often anchor awards to a multiple of the license fee, but awards vary widely and fee exposure can dwarf the damages.
Standing matters. Only the legal or beneficial owner of an exclusive right can sue. An agency that holds only a right to collect may not have standing, Righthaven LLC v. Hoehn, 716 F.3d 1166 (9th Cir. 2013).
A separate claim for removed credits or watermarks can be worth more than the infringement claim. Removing copyright management information with the required knowledge violates 17 U.S.C. § 1202 and carries statutory damages of $2,500 to $25,000 per violation.
Defenses exist but are narrower than recipients hope. Fair use rarely protects a photograph used as an illustration for its original purpose. Embedding is protected in the Ninth Circuit under the server test and contested elsewhere. User-uploaded images may qualify for the DMCA safe harbor. A valid license, including one a web designer bought, ends the claim.
There are now three forums. The letter, the federal lawsuit, and the Copyright Claims Board, a small-claims tribunal with a $30,000 cap and a 60-day opt-out right. Each changes the math.

How photo licensing enforcement works

The detection layer

Image enforcement became an industry when software could do what used to require a photographer to stumble onto a copy. Reverse image search engines and commercial crawlers now index billions of images and compare visual fingerprints, so a photograph cropped, resized, recolored, or stripped of its metadata can still be matched to the original. A photographer or agency uploads a catalog; the crawler returns a list of web pages where matching images appear, with screenshots and dates of first detection.

The output is a spreadsheet of "hits." Most hits are licensed uses, and the first job of any enforcement operation is to filter them out against license records. What remains are candidate infringements, ranked by the commercial character of the site, the size of the business, and the jurisdiction. A national retailer's product page and a dental practice's homepage rank higher than a teenager's fan blog, both because the claims are worth more and because the targets can pay.

Who sends the letters

The senders fall into a few recognizable types. The labels below are generic; individual businesses combine these models in different ways.

Sender type	Relationship to the photograph	Typical first demand	Typical escalation
Individual photographer	Owner and author	Invoice at a "retroactive license" rate, sometimes with a multiplier	Hires a contingency lawyer, files in federal court or the Copyright Claims Board
Stock or editorial image agency	Owner by assignment, exclusive licensee, or nonexclusive distributor (varies by contributor agreement)	Form letter citing the agency's rate card	In-house legal team, then outside counsel
Image licensing and recovery service	Usually an agent for photographers and agencies, paid a share of recoveries	Automated email or portal notice with payment link	Referral to partner law firms on contingency
Contingency enforcement law firm	Counsel for the owner, often with a volume practice	Lawyer's letter with a draft complaint or a citation to statutory damages	Federal complaint, frequently in the owner's or firm's home district

The economics shape the behavior. A recovery service typically keeps a substantial percentage of what it collects, often reported in the range of 30 to 50 percent, and pays nothing to the photographer if nothing is collected. That model rewards volume, standardized demands, and quick settlements. It also means the person sending the letter usually has not personally evaluated the registration date, the license history, or the defenses. The letter is an opening position generated at scale.

The lifecycle of a claim

A typical claim moves through five stages:

Detection. The crawler finds the image and records the URL and the date it was first seen.
Notice. An automated letter or email demands a "retroactive license fee," often with a short deadline and a statement that the fee will increase if not paid.
Follow-up. Additional notices escalate in tone and sometimes in amount. Some services offer a modest discount for quick payment.
Referral. Unresolved claims involving registered photographs are referred to counsel. The lawyer's letter typically recites 17 U.S.C. § 504 and 17 U.S.C. § 505, the fee-shifting provision.
Filing. A small fraction of claims become federal lawsuits or Copyright Claims Board claims. The ones that do are disproportionately claims with timely registrations, because those are the claims where statutory damages and fees create leverage.

That last point is the key to reading a letter. The letter itself does not tell you which category your claim is in. The registration certificate does.

What the demand amount means

The dollar figure in a first demand is usually built from a rate card: a base license fee for the type of use, multiplied by a factor for unlicensed use, sometimes with per-year charges for the duration the image was displayed. Demands for a single photograph on a small business website commonly land in the range of several hundred to several thousand dollars. Those figures are not damages calculations; they are prices. Whether they are fair depends on what a license for the same use would have cost and what a court could award, which is the subject of the rest of this article.

The rights at stake

Photographs are protected, and copying them is easy to prove

Photography was the first new technology to test the scope of copyright. In Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884), a lithographer copied Napoleon Sarony's portrait of Oscar Wilde and argued that a photograph was a mechanical reproduction of reality, not a "writing" of an "author." The Supreme Court disagreed, pointing to Sarony's choices of pose, costume, lighting, and arrangement. A century later, Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991) set the originality bar low: independent creation and a "modicum of creativity." Almost any photograph a professional would bother to enforce clears it. Judge Kaplan's opinion in Mannion v. Coors Brewing Co., 377 F. Supp. 2d 444 (S.D.N.Y. 2005) remains the best explanation of where a photograph's originality lies: in rendition (lighting, angle, lens, timing), in timing, and in the creation of the subject.

Originality questions matter when a defendant made its own photograph that resembles the plaintiff's, as in Rentmeester v. Nike, Inc., 883 F.3d 1111 (9th Cir. 2018), where the court held that Nike's photograph of Michael Jordan in a similar pose did not copy protected expression from Rentmeester's earlier image. They almost never matter in demand-letter cases, which involve the same file. When the image on the website is pixel-for-pixel the photographer's image, copying is established and the only questions are ownership, authorization, defenses, and remedies.

The exclusive rights in play

Posting a photograph on a website implicates at least two exclusive rights under 17 U.S.C. § 106: the right to reproduce the work, because the file is copied onto a server, and the right to display it publicly, because the server transmits it to anyone who loads the page. Anyone who violates an exclusive right is an infringer, 17 U.S.C. § 501(a). Liability is strict. The employee who thought images found on a search engine were free to use, and the owner who never saw the post, are both in the same legal position as someone who copied deliberately. Intent comes in later, at the remedies stage.

Responsibility also extends beyond the person who clicked "upload." A business is directly liable for content it publishes on its own site, and the doctrines of vicarious and contributory infringement reach those who profit from and can control infringement or who knowingly contribute to it, principles the Supreme Court discussed in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). In practice, a company cannot shift liability to the employee or the web designer who chose the image, though it may have a contractual indemnity claim against the designer.

Who can sue: ownership and standing

The owner is not always the sender

The Copyright Act gives the right to sue to "the legal or beneficial owner of an exclusive right," 17 U.S.C. § 501(b). Copyright vests initially in the author, 17 U.S.C. § 201(a), and a transfer of ownership, including an exclusive license, must be in a signed writing, 17 U.S.C. § 204(a). A nonexclusive license need not be written, but a nonexclusive licensee has no right to sue.

That structure matters because many image claims are asserted by someone other than the photographer. The leading cautionary tale is Righthaven. In 2010 and 2011, Righthaven LLC took assignments of copyrights in newspaper articles and photographs from publishers, then sued hundreds of bloggers and website operators who had reposted them. The catch was a side agreement that left the publisher with every meaningful right in the works except the right to sue and recover. In Righthaven LLC v. Hoehn, 716 F.3d 1166 (9th Cir. 2013), the Ninth Circuit held that the assignment, read with the side agreement, transferred nothing but a bare right to sue, which does not confer standing. The court relied on its en banc decision in Silvers v. Sony Pictures Entertainment, Inc., 402 F.3d 881 (9th Cir. 2005), which held that an assignee of accrued infringement claims, without any ownership interest in an exclusive right, cannot sue.

The practical rule for recipients: ask what the sender holds. An agency that is an exclusive licensee for the relevant use can sue in its own name. An agency that is a nonexclusive distributor, or a recovery service acting as agent, cannot sue in its own name and must bring the claim through the owner. That does not make the claim go away, but it changes who the plaintiff will be, whether the owner is willing to be named, and whether the chain of title will hold up.

Work made for hire and commissioned photographs

The author of a photograph is the person who took it, unless it was a work made for hire. Under the definition in 17 U.S.C. § 101, a work is made for hire if it was prepared by an employee within the scope of employment or, for certain enumerated categories, specially commissioned under a signed work-for-hire agreement. Whether a photographer is an employee turns on the agency-law factors in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989). A freelancer who shot a company's product line usually owns the copyright unless a written assignment says otherwise, a point businesses often discover only when a former contractor's agency sends a demand for photographs of the company's own products. The Work Made for Hire Determination Checklist: A Practical Checklist walks through the test.

Implied licenses

Where a photographer created images at a business's request and delivered them intending that they be used, courts may find an implied nonexclusive license. The doctrine comes from Effects Associates, Inc. v. Cohen, 908 F.2d 555 (9th Cir. 1990), in which a special-effects company delivered footage for a film and then, unhappy with its pay, sued for infringement. The court held that by creating the footage at the producer's request and handing it over, the company had granted an implied license; its remedy was for the unpaid fee, not infringement. Asset Marketing Systems, Inc. v. Gagnon, 542 F.3d 748 (9th Cir. 2008) applied the same reasoning to commissioned software. Implied license is a strong defense when the photographer was hired by the defendant; it does not help with a photograph pulled from a search engine.

Registration: the gate and the timing rule

No lawsuit without a registration decision

Copyright exists from the moment a photograph is taken, but an owner of a United States work cannot sue for infringement until "registration of the copyright claim has been made," 17 U.S.C. § 411(a). For years the circuits split over whether "made" meant the owner had filed an application or the Copyright Office had acted on it. In Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296 (2019), a news organization sued a website that kept posting its articles after a license ended. Fourth Estate had applied for registration but the Office had not yet acted. A unanimous Court held that registration occurs when the Office registers the work, not when the application is filed, and the suit was dismissed. The requirement is not jurisdictional, Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010), but courts enforce it when raised.

For demand-letter practice, Fourth Estate means two things. First, a sender who cannot produce a registration certificate (or a refusal, which under § 411(a) also allows suit) cannot file in federal court today, although it can register and sue later. Second, an unregistered photograph can be registered after the demand, and the Copyright Office's special handling procedure can produce a certificate in days for an added fee. Unregistered is not the same as unenforceable. It is, however, often the same as low value, because of § 412.

Section 412: the rule that sets the price

Section 412 provides that no award of statutory damages or attorney's fees shall be made for "any infringement of copyright in an unpublished work commenced before the effective date of its registration," or for "any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work." 17 U.S.C. § 412.

Three definitions control the analysis:

Effective date of registration. It is the day the Office received a complete application, deposit, and fee, not the day the certificate issued, 17 U.S.C. § 410(d). The certificate states it.
Publication. Distribution of copies to the public, or an offer to distribute to a group for further distribution or public display, as defined in 17 U.S.C. § 101. Whether posting a photograph on a portfolio site "publishes" it is unsettled; the Copyright Office treats the question case by case, and courts have gone both ways. Offering the image for licensing through a stock agency is more likely to count.
Commenced. The infringement "commences" when the first act of infringement in a series of ongoing infringements of the same kind occurs. In Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696 (9th Cir. 2008), a clothing company kept selling garments with an infringing hangtag after the plaintiff registered its design. The Ninth Circuit held that the infringement commenced with the first pre-registration sale, so continued post-registration sales did not unlock statutory damages. Most courts follow that approach for an image that sits continuously on the same web page.

The result is a decision tree that every image claim runs through:

Facts	Statutory damages and fees available?
Photograph registered (effective date) before the defendant's first posting	Yes
Photograph published, registered within three months after first publication, and the defendant's posting began in that window	Yes
Defendant's posting began before the effective date, and the three-month window does not apply	No: actual damages and profits only
Unpublished photograph; defendant's posting began before registration	No
Same defendant, new and different infringement (for example, the image reused in a print ad) after registration	Possibly, for the new infringement; courts look at whether it is the same kind of ongoing infringement

When a claim falls into a "No" row, the owner's best federal case is the license fee it lost, plus any profits attributable to the infringement, and each side bears its own fees. Lawyers who work on contingency rarely file those cases. That is why the first question a recipient's lawyer asks is for the registration certificate, and why the date of first posting (from the content management system, server logs, or the Internet Archive) becomes evidence worth gathering early. For the mechanics of registering photographs, including group registration, see Copyright Registration of Photographs and Registering a Copyright in Photographs: A Practical Checklist.

Registration errors

Recipients sometimes hope to invalidate a registration because of a mistake in the application, such as a wrong publication date or the inclusion of published and unpublished photographs in the same group. The Supreme Court narrowed that path in Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 595 U.S. 178 (2022). Under 17 U.S.C. § 411(b), inaccurate information invalidates a registration only if it was included "with knowledge that it was inaccurate," and Unicolors held that a good-faith mistake of law, like a mistake of fact, does not qualify. A certificate issued within five years of first publication is also prima facie evidence of validity and of the facts it states, 17 U.S.C. § 410(c). Challenges to registrations remain possible when the error is knowing or material, but they are a supporting argument, not a strategy.

What a claim is worth

Actual damages: the license fee that was not paid

An owner may recover "the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages," 17 U.S.C. § 504(b). For photographs, actual damages usually means the fair market value of a license for the use the defendant made.

The leading case is about eyewear, not a photograph, but it is the one courts cite. In On Davis v. The Gap, Inc., 246 F.3d 152 (2d Cir. 2001), a jewelry designer's nonfunctional eyewear appeared on a model in a Gap advertisement. The Second Circuit held that the owner could recover the reasonable license fee the defendant would have paid, measured objectively by what a willing buyer and willing seller would have agreed to for the use, even without proof that the owner would actually have licensed to that defendant. The court cautioned that the measure is not "what the owner would have charged" in the abstract.

For photographs, evidence of fair market value comes from the photographer's own licensing history, the agency's rate card, comparable stock licenses, and expert testimony. That evidence can produce surprisingly large numbers. In Leonard v. Stemtech International, Inc., 834 F.3d 376 (3d Cir. 2016), a scientific photographer licensed electron-microscope images of stem cells on limited terms. A supplement company that had paid for one narrow use went on to supply the images to its distributors for websites, videos, and marketing materials. The photographer's expert started from benchmark stock fees and applied multipliers for the scarcity and exclusivity of the images, and the jury returned a $1.6 million verdict for actual damages on direct, contributory, and vicarious infringement theories. The Third Circuit affirmed. Leonard is an outlier on its facts (rare images, extensive use, a company that knew the images were licensed), but it is a reminder that "the license fee" is not always the price of a generic stock image.

At the other end, many image claims involve commodity photographs whose market value is low. If a comparable royalty-free stock image could have been licensed for a small sum, a court applying On Davis will be skeptical of a demand that multiplies a premium rate card by a penalty factor. Actual damages are compensatory; the multiplier belongs, if anywhere, to statutory damages.

Profits

Infringer's profits are recoverable only to the extent "attributable to the infringement." The owner need only present proof of the infringer's gross revenue, after which the infringer must prove deductible expenses and the share of profit attributable to other factors, § 504(b). Courts require a causal link between the infringement and the revenue sought. In Polar Bear Productions, Inc. v. Timex Corp., 384 F.3d 700 (9th Cir. 2004), the Ninth Circuit required the owner to show a nexus between the infringing use of footage and the indirect profits it claimed. For a photograph on a blog post about peony arrangements, a profits claim is usually speculative. It matters more when an image is used in paid advertising or on a product page.

Statutory damages

If the work was timely registered, the owner may elect, at any time before final judgment, to recover statutory damages instead of actual damages and profits: "a sum of not less than $750 or more than $30,000" per work infringed, "as the court considers just," 17 U.S.C. § 504(c)(1). If the infringement was willful, the court "in its discretion may increase the award" to as much as $150,000. If the infringer "was not aware and had no reason to believe that his or her acts constituted an infringement," the court may reduce the award to as little as $200, § 504(c)(2). The innocent-infringer reduction is not available, however, when a proper copyright notice appeared on the published copy to which the defendant had access, 17 U.S.C. § 401(d). Whether a watermark or a credit line on a website counts as such a notice is litigated; see Copyright Notice: Form, Function, and Best Practices.

The statute gives almost no guidance on where in the range an award should fall. Courts fill the gap with factors such as the infringer's state of mind, the expenses saved and profits earned, the revenue lost by the owner, the deterrent value, and the parties' conduct, as the Second Circuit described them in Bryant v. Media Right Productions, Inc., 603 F.3d 135 (2d Cir. 2010). Either party may demand that a jury set the amount, Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998).

In single-photograph cases, many courts, especially when entering default judgments, have tied statutory awards to a multiple of the license fee, often in the range of three to five times, to reflect both compensation and deterrence. That is a tendency, not a rule. Some courts award the $750 minimum when the license fee was small and the infringement was a one-time error; others award several times more when the defendant ignored repeated notices or stripped a watermark. Anyone who quotes a single "standard multiplier" is overstating the law.

Two counting rules matter. Statutory damages are awarded per work, not per infringement, so ten posts of one photograph are one award. And "all the parts of a compilation or derivative work constitute one work," § 504(c)(1), which raises the question whether photographs registered together in a group are one work or many. The Copyright Office's group registration rules treat each photograph as a separate work, and most courts appear to agree for group-registered photographs, but owners who registered a collection as a compilation may face a single-award argument. See Copyright Damages and Remedies: Statutory Damages, Profits, Injunctions, and Fees for the full remedies framework.

Attorney's fees: the real leverage

The court "in its discretion may allow the recovery of full costs" and "may also award a reasonable attorney's fee to the prevailing party as part of the costs," 17 U.S.C. § 505. Two Supreme Court decisions shape that discretion.

In Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994), the record company that owned Creedence Clearwater Revival's catalog sued John Fogerty, claiming his later song copied his own earlier one. Fogerty won and sought fees; the Ninth Circuit applied a rule that prevailing defendants had to show bad faith. The Supreme Court rejected that "dual standard": prevailing plaintiffs and prevailing defendants are to be treated alike, and fees are discretionary, guided by factors such as frivolousness, motivation, objective unreasonableness, and the need for compensation and deterrence.

In Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. 197 (2016), a Thai student who had resold foreign editions of textbooks in the United States won his first-sale case in the Supreme Court and then sought fees. The Court held that courts should give "substantial weight" to the objective reasonableness of the losing party's position, while still considering all other relevant circumstances, including litigation misconduct and the need to deter repeated infringement or overaggressive assertions.

For a demand recipient, § 505 is what turns a $500 license dispute into a decision with five-figure stakes. If the photograph was timely registered and the recipient litigates and loses, the court may award the owner's fees, which in a contested federal case can exceed the damages many times over. If the registration was not timely, § 412 takes fees off the table for the owner, and the recipient who wins can still seek its own fees under § 505. The section works in both directions, which is why Fogerty and Kirtsaeng matter as much to recipients facing weak claims as to photographers.

Copyright management information claims

Many image complaints now carry a second count under the Digital Millennium Copyright Act's integrity provision. Section 1202 prohibits providing or distributing false copyright management information with intent to facilitate or conceal infringement, § 1202(a), and intentionally removing or altering CMI, or distributing works knowing CMI has been removed, "knowing, or . . . having reasonable grounds to know, that it will induce, enable, facilitate, or conceal" infringement, § 1202(b), 17 U.S.C. § 1202. CMI includes the title, the author's name, the owner's name, and terms of use conveyed in connection with the work, § 1202(c).

Two appellate decisions make the claim real for photographs. In Murphy v. Millennium Radio Group LLC, 650 F.3d 295 (3d Cir. 2011), a radio station scanned a magazine photograph of its two shock jocks, cropped out the photographer's credit printed in the gutter of the page, and posted it online with a contest inviting listeners to alter it. The Third Circuit held that CMI is not limited to information embedded in automated rights-management systems; a printed credit line qualifies. In Mango v. BuzzFeed, Inc., 970 F.3d 167 (2d Cir. 2020), a BuzzFeed writer used a freelance photographer's photograph that the New York Post had published with a gutter credit, removed the credit, and attributed the image to a different source. The Second Circuit affirmed liability under § 1202(b)(3), holding that the "double scienter" requirement was satisfied: the defendant knew the CMI had been removed and had reasonable grounds to know that distributing the image would conceal the infringement.

The remedies are what make § 1202 attractive to claimants. A plaintiff may elect statutory damages "for each violation of section 1202 in the sum of not less than $2,500 or more than $25,000," 17 U.S.C. § 1203(c)(3)(B), and fees are available under § 1203(b)(5). Most courts hold that neither § 411(a) registration nor § 412 timing limits a § 1202 claim, because those provisions refer to infringement actions. So an unregistered or late-registered photograph whose watermark was cropped out can support a five-figure statutory claim that the infringement count alone could not.

The defense is the knowledge requirement. Most images on small-business websites were not stripped of CMI by the business; they were copied from somewhere that had already removed it, or the CMI was metadata the website software discarded automatically on upload. Proving that a defendant removed a visible watermark is easy when a before-and-after comparison shows it; proving the double scienter for automatically stripped metadata is much harder. Section 1203(c)(5) also lets the court reduce or remit damages when the violator was not aware and had no reason to believe its acts were a violation.

Time limits

"No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued," 17 U.S.C. § 507(b). Two features make the rule less protective than recipients expect.

First, each infringing act starts its own period. In Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014), the daughter of a screenwriter whose work underlay Raging Bull sued MGM decades after the film's release for infringements within the preceding three years. MGM argued laches. The Court held that laches cannot bar a claim for damages brought within the three-year window, because Congress set the limitations period and each new act of infringement (each new sale or display) gives rise to a discrete claim. An image that has been on a website for six years is, on this theory, being displayed today.

Second, most circuits apply a discovery rule, under which a claim accrues when the owner discovers, or with due diligence should have discovered, the infringement. The Second Circuit adopted it for a photographer's claims against a textbook publisher that exceeded license print runs in Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120 (2d Cir. 2014), and later held in Sohm v. Scholastic Inc., 959 F.3d 39 (2d Cir. 2020) that damages were nonetheless limited to the three years before suit. The Supreme Court rejected that damages cap in Warner Chappell Music, Inc. v. Nealy, 601 U.S. 366 (2024), a dispute over a music producer's royalties for songs licensed years earlier. Assuming without deciding that the discovery rule applies, the Court held that a timely claim may recover damages for infringements that occurred more than three years before suit. Whether the discovery rule itself survives remains open, and a photographer whose business is running crawlers may face a strong argument that, with "due diligence," it should have discovered a public web page long before it did.

The statute of limitations rarely defeats an image claim outright, because the display is ongoing. It does matter for images taken down more than three years ago, for the scope of recoverable damages in jurisdictions that question the discovery rule, and for claims by sophisticated enforcers whose own crawler logs show early detection.

The defenses, and how far they reach

License: the defense that ends the case

A valid license is a complete defense, and it is the defense most often available and least often documented. Businesses get images from stock services, from web designers who bundled images into a site build, from manufacturers' media kits, from photographers they hired, and from free-image platforms. Each source comes with terms, and each set of terms has limits: number of seats, permitted media, prohibition on use in logos or templates, attribution requirements, and sometimes duration. A use outside the scope of a license can be infringement, and whether a breached term is a condition of the license or merely a contractual covenant determines whether the owner sues for infringement or only for breach of contract, Graham v. James, 144 F.3d 229 (2d Cir. 1998); see also Jacobsen v. Katzer, 535 F.3d 1373 (Fed. Cir. 2008) (attribution conditions in an open license enforceable through copyright).

Licenses also come from platform terms of service. Social media and video platforms grant themselves licenses from users, and some grant other users rights to embed or share content through the platform's own tools. Whether those terms protect a third-party website that embeds a post depends on the specific terms in force at the time, which change often and differ by platform. Treat a platform-terms argument as worth investigating for an embed, and as no help at all for a downloaded and re-uploaded copy.

The burden of proving a license is on the defendant. The single most useful thing a business can do before any demand arrives is to keep license records: the invoice, the license text as it read on the purchase date, the account that bought it, and the page where the image is used. The Image Rights Toolkit: Claim Evaluation Worksheets, Response Letters, and Image Licensing Records includes a template, and the Copyright Licensing and Clearance Toolkit: Permissions, Rights, and Chain of Title covers broader clearance.

Fair use: rarely available for illustrative use

Fair use under 17 U.S.C. § 107 weighs the purpose and character of the use, the nature of the work, the amount used, and the effect on the market. In image cases the factors tend to line up against the defendant who used a photograph to illustrate the thing the photograph depicts.

The Supreme Court's most recent fair use decision was about a photograph. In Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023), Lynn Goldsmith's 1981 portrait of Prince had been licensed to Vanity Fair as an artist reference; Warhol made a series of silkscreens from it, and after Prince's death in 2016 the Warhol Foundation licensed one of them to Condé Nast for a magazine cover. The Court held that the first factor favored Goldsmith for that use, because the Foundation's licensing of the image as a magazine illustration of Prince shared substantially the same commercial purpose as Goldsmith's own licensing. New meaning or message was not enough. If an orange silkscreen by Andy Warhol fails the first factor when used to illustrate a story about its subject, a florist's unaltered photograph of peonies used to illustrate a blog post about peonies has a much harder road.

The lower courts have applied that logic to ordinary web uses. In Brammer v. Violent Hues Productions, LLC, 922 F.3d 255 (4th Cir. 2019), a film festival's website used a cropped time-lapse photograph of Washington's Adams Morgan neighborhood in a guide for festival visitors; the Fourth Circuit held that the use was not fair because it used the photograph for its inherent aesthetic and informational purpose. In Philpot v. Independent Journal Review, 92 F.4th 252 (4th Cir. 2024), a news site used a concert photographer's portrait of Ted Nugent to illustrate an article about him; again not fair use. And in McGucken v. Pub Ocean Ltd., 42 F.4th 1149 (9th Cir. 2022), an online publisher's article about an ephemeral lake that formed in Death Valley used twelve of the photographer's images of the lake. The Ninth Circuit reversed a fair use ruling for the publisher, holding that the article used the photographs for the same purpose they were taken (to depict the lake) and did not meaningfully transform them by embedding them in an article with commentary.

The fair use wins in image cases tend to involve different purposes. In Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003), a visual search engine displayed small, low-resolution thumbnails of a photographer's images of the American West; the Ninth Circuit held that thumbnails used to index and locate images served a different function from the photographs' aesthetic purpose. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) reached the same result for Google's image search thumbnails. Commentary that targets the photograph itself, or news reporting where the photograph is the story, can also qualify, but those uses are the exception in demand-letter practice. For a full treatment, see Copyright Fair Use: The Four Factors, Transformative Use, and What Warhol Changed and Fair Use After Warhol: A Practical Guide to the Four Factors in the Age of AI.

De minimis and "nobody saw it"

Recipients often argue that the use was trivial: one image on a page with almost no traffic. The de minimis doctrine asks how much of the work was taken, not how many people saw it. In Bell v. Wilmott Storage Services, LLC, 12 F.4th 1065 (9th Cir. 2021), a photographer of the Indianapolis skyline found his photograph on a storage company's server, accessible to anyone who had the direct URL or found it through an image search, even though it did not appear on any visible web page. The Ninth Circuit rejected the de minimis defense: the defendant had copied and displayed the entire photograph, and low exposure goes to damages, not liability. Low traffic is a damages argument, and a good one under On Davis and the Bryant factors.

Embedding and the server test

When a website embeds an image (for example, an Instagram post or a tweet with a photograph) rather than copying the file, the image is served from the platform's computers, not the website's. Whether the embedding site "displays" the work is one of the few genuinely open questions in this area.

The Ninth Circuit adopted the server test in Perfect 10 v. Amazon: a site that does not store an image on its own server and serve it to users does not display it, even if the image appears framed within the site's pages. In Hunley v. Instagram, LLC, 73 F.4th 1060 (9th Cir. 2023), photographers whose Instagram posts had been embedded by BuzzFeed and Time sued Instagram for secondary liability. The Ninth Circuit held that because the embedding sites did not store the images, there was no direct infringement by them under the server test, and therefore no secondary liability for Instagram. The court declined to abandon the test, noting that the Supreme Court's decision in American Broadcasting Cos. v. Aereo, Inc., 573 U.S. 431 (2014), did not displace it.

District courts in New York have taken a different view. In Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d 585 (S.D.N.Y. 2018), a photographer's snapshot of Tom Brady on a Long Island street went viral on social media, and news sites embedded tweets containing it. Judge Forrest held that the sites displayed the photograph regardless of where it was stored, rejecting the server test as inconsistent with the statute's technology-neutral definition of display. In Nicklen v. Sinclair Broadcast Group, Inc., 551 F. Supp. 3d 188 (S.D.N.Y. 2021), a wildlife photographer's Instagram video of a starving polar bear was embedded in a broadcaster's online article, and the court again declined to apply the server test. The Second Circuit has not resolved the question. The practical consequences: an embed-based demand against a business in the Ninth Circuit is weak; in the Second Circuit it is uncertain; elsewhere it is open. Embedding is also not a defense when the site copied the file, which is how most small-business uses happen.

The DMCA safe harbor for user-uploaded images

A business whose website hosts content uploaded by users, such as reviews with photographs, forum posts, marketplace listings, or community galleries, may qualify for the safe harbor in 17 U.S.C. § 512(c) for infringement "by reason of the storage at the direction of a user." The conditions are demanding: a designated agent registered with the Copyright Office, no actual or "red flag" knowledge of the specific infringement, no financial benefit directly attributable to infringement that the provider has the right and ability to control, expeditious removal on proper notice, and a reasonably implemented repeat-infringer policy under § 512(i). The Second Circuit explained the knowledge standards in Viacom International, Inc. v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012), and the Ninth Circuit addressed repeat-infringer and notice requirements in Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007).

The safe harbor does not cover images the business posted itself, including images posted by employees as part of their jobs. The line can blur. In Mavrix Photographs, LLC v. LiveJournal, Inc., 873 F.3d 1045 (9th Cir. 2017), a celebrity news community on LiveJournal published paparazzi photographs that users had submitted, but only after volunteer moderators reviewed and approved them. The Ninth Circuit held that if the moderators were LiveJournal's agents, the posts might not have been stored "at the direction of a user," and remanded for trial on agency. Businesses that curate user content should understand that heavy editorial control can cost them the safe harbor. See Digital Millennium Copyright Act Safe Harbors for Online Service Providers and the DMCA Safe Harbor Compliance Checklist: A Practical Checklist.

Where the case would be filed

Copyright claims belong exclusively in federal court, 28 U.S.C. § 1338, and personal jurisdiction over a small business usually means the business's home district. Owners sometimes sue in their own district on the theory that the website targeted them. In Mavrix Photo, Inc. v. Brand Technologies, Inc., 647 F.3d 1218 (9th Cir. 2011), the Ninth Circuit found jurisdiction in California over an Ohio-based celebrity gossip site that posted a California agency's photographs, because the site's content and advertising were aimed at a California audience. A local business whose site serves local customers is much less exposed to that theory. Distance and the cost of defending far from home are legitimate negotiating considerations.

Settlement levers: Rule 68 and fee risk

Because fees drive the value of a timely registered claim, procedural devices that shift fee risk matter. Under Fed. R. Civ. P. 68, a defendant may serve an offer of judgment at least 14 days before trial; if the plaintiff rejects it and the judgment finally obtained is not more favorable, the plaintiff must pay the costs incurred after the offer. In Marek v. Chesny, 473 U.S. 1 (1985), the Court held that "costs" includes attorney's fees when the underlying statute defines fees as part of costs, and § 505 does.

The circuits disagree about how far that reaches in copyright cases. The Eleventh Circuit held in Jordan v. Time, Inc., 111 F.3d 102 (11th Cir. 1997) that a copyright plaintiff who recovered less than a rejected Rule 68 offer had to pay the defendant's post-offer attorney's fees. The Seventh Circuit held in Harbor Motor Co. v. Arnell Chevrolet-Geo, Inc., 265 F.3d 638 (7th Cir. 2001) that Rule 68 shifts only the fees that the underlying statute would allow, so a non-prevailing defendant cannot recover fees under § 505. Under either view, a plaintiff whose judgment is less favorable than a rejected offer cannot recover its own post-offer costs, which under Marek's logic include its post-offer fees. A well-timed offer of judgment at a number close to the realistic license value is one of the strongest tools a defendant has. Settlement mechanics are covered in Settlement Agreements, Releases, and Rule 68: Ending a Case on Terms That Hold, and negotiation strategy in Settlement Negotiation Tactics: Principled Negotiation, Anchoring, and Handling Hardball in Litigation.

The Copyright Claims Board

Since 2022, owners have had a third option between a letter and a lawsuit. The Copyright Claims Board, created by the CASE Act and codified at 17 U.S.C. §§ 1501-1511, hears infringement claims with total damages capped at $30,000 per proceeding, 17 U.S.C. § 1504(e). Statutory damages are limited to $15,000 per work for timely registered works and, for works not timely registered under § 412, to $7,500 per work and $15,000 in total. The Board cannot find willfulness, cannot issue injunctions, and generally does not award fees except for bad-faith conduct. A claimant need only have filed a registration application, 17 U.S.C. § 1505.

For image enforcement, the Board changes the economics in two directions. It gives owners of late-registered photographs a way to recover statutory damages they could never get in court, which means a § 412 analysis that kills a federal claim does not kill a Board claim. And it gives respondents a choice: participation is voluntary, and a respondent served with a Board claim has 60 days to opt out, 17 U.S.C. § 1506(i); 37 C.F.R. part 223. A respondent who ignores the notice is bound and can suffer a default determination enforceable in federal court, 17 U.S.C. § 1508. The Board also cannot hear § 1202 claims, which narrows its value to some claimants. The opt-out calculation is covered in The Copyright Claims Board: Small Claims Copyright Litigation Under the CASE Act and Bringing or Defending a Claim Before the Copyright Claims Board: A Practical Guide.

When enforcement overreaches

Courts have drawn lines when volume enforcement turns into abuse. The best-known example involves a New York lawyer who filed well over a thousand photograph infringement suits in a few years, many on behalf of news photographers. Judges in the Southern District of New York issued a series of sanctions orders for conduct such as filing suits without confirming registration, misrepresenting facts, and disregarding court orders. In Liebowitz v. Bandshell Artist Management, 6 F.4th 267 (2d Cir. 2021), the Second Circuit affirmed sanctions of more than $100,000 in fees and penalties, plus nationwide nonmonetary requirements on his future filings, under 28 U.S.C. § 1927, Rule 16, and the court's inherent power, after the district court found he had lied under oath and maintained the case in bad faith. The Southern District of New York's grievance committee suspended him from practice in that court in late 2020, New York's Appellate Division, Second Department, imposed reciprocal suspension in November 2021, and the same court disbarred him in March 2024, Matter of Liebowitz, 2024 NY Slip Op 01309 (2d Dep't 2024).

The lessons for both sides are concrete. Rights holders and their lawyers must confirm registration, ownership, and the absence of a license before filing, as Fed. R. Civ. P. 11 requires. Recipients facing a claim that appears to have been filed without that investigation should say so, early and in writing, because a documented record of the sender's knowledge supports a later fee motion under § 505 or § 1927. Neither side should treat the word "troll" as an argument; most photographers who enforce their rights are doing exactly what the Copyright Act contemplates.

Practical implications for each side

For businesses and individuals who receive a letter

Do not ignore it, and do not pay it on day one. Ignoring a letter about a timely registered photograph invites a lawsuit and, if a lawsuit is ignored, a default judgment. Paying immediately often pays a premium rate card price for a claim that may be worth much less. The step-by-step process is in Responding to an Image Copyright Infringement Demand: A Practical Guide.
Preserve before you remove. Take the image down if there is no license, but first capture the page, the file, the upload date, and any record of where the image came from. Removal limits future exposure; deleting the evidence of when the use began can destroy the § 412 argument.
Ask for proof. A reasonable request for the registration certificate, the chain of title (if the sender is not the photographer), and the basis for the demand amount is standard and not an admission.
Do the § 412 math. Compare the effective date of registration to the date the image first appeared on your site. That one comparison often decides whether you are negotiating over a license fee or over fee-shifting risk.
Search your own records for a license. Check stock accounts, designer invoices, and theme or template packages. A license bought by a former vendor may still cover the use.
Check your insurance. Some general liability policies cover copyright infringement in "your advertisement," and media liability or cyber policies may cover more. Notice the carrier promptly, because late notice can forfeit coverage. See Business Insurance and Coverage Disputes: CGL, E&O, Cyber, and D&O.
Fix the process. Most claims come from a single habit: someone pulled an image from a search engine. An image use policy and a license log prevent the next letter.

For photographers, agencies, and enforcement services

Register early and in groups. Group registration of published or unpublished photographs under 37 C.F.R. part 202 is inexpensive per image. Registering before publication, or within three months after it, preserves statutory damages and fees against everyone who copies later.
Document ownership and agency. If an agency or service will be sending letters, its authority should be in writing, and if it will sue in its own name it needs an exclusive license, not a collection agreement. Righthaven is a cautionary tale.
Price demands to the realistic remedy. A demand tied to documented license history and a defensible multiple settles faster and holds up better than a rate card that assumes willfulness.
Screen hits for licenses before sending. Letters sent to licensed users damage relationships and, if they become lawsuits, invite fee awards against the claimant.
Use the Copyright Claims Board where it fits. For late-registered images and small-business respondents, the Board may be the most efficient forum, subject to the respondent's opt-out.
Keep CMI on the images. Visible credits and embedded metadata support § 1202 claims and defeat innocent-infringer arguments under § 401(d).

An extended worked example

Return to Juniper & Ash. Marisol forwards the email to her lawyer, who works through it in the order the law dictates.

Facts gathered in the first week. The blog's content management system shows the post was published on April 9, 2019. The Internet Archive has a capture of the page from May 2019 showing the peony photograph. The part-time employee who wrote the post has left, but her search history is not available and there is no license record. The photograph has no visible watermark on the shop's site; on the photographer's portfolio it carries a small credit line in the corner. The lawyer asks the licensing service for the registration certificate and the agreement authorizing it to act.

What comes back. The service sends a certificate for a group registration of 312 published photographs, including the peony image, with an effective date of registration of March 2, 2021. The publication date listed for the peony photograph is June 2018. The service's authorization is an agency agreement under which the photographer retains ownership and the service collects on her behalf.

The § 412 analysis. The photograph was published in June 2018. The infringement commenced in April 2019, after publication and before the March 2021 effective date of registration, and the registration was not made within three months of first publication. Under § 412 and Derek Andrew, statutory damages and attorney's fees are unavailable for this infringement in federal court, even though the image stayed on the site after March 2021.

The CMI question. The shop's copy has no credit line. Did someone at the shop crop it, or was the image copied from a source that had already removed it? The cropped dimensions of the shop's copy match a widely shared version on a recipe aggregator that also lacks the credit. There is no evidence that anyone at the shop removed the credit, let alone with the double scienter Mango requires. A § 1202 claim is possible in theory and weak on these facts.

Actual damages. The photographer's portfolio offers a web license for a single blog use at $350 for two years. Comparable royalty-free stock images of peony arrangements are licensed for well under $100. Under On Davis, a court would likely value the use somewhere between those figures; given the low traffic, the absence of profits attributable to the image, and the photographer's own rate, an actual-damages award near $350 per two years of use, perhaps $700 to $1,100 for roughly six years, is a reasonable estimate.

Forum alternatives. In federal court, the photographer could recover actual damages only and would bear her own fees, making a lawsuit uneconomic. At the Copyright Claims Board, however, a late-registered work can still earn statutory damages of up to $7,500. The Board's officers would be likely to award something closer to the license value than to the cap on these facts, but the possibility shapes the negotiation, and Juniper & Ash would need to decide within 60 days of service whether to opt out.

The defenses. No license. Fair use is unavailable for a decorative illustration of exactly what the photograph depicts (Brammer, McGucken). De minimis fails under Bell. The image was copied, not embedded. The safe harbor does not apply because an employee posted it. Standing is fine for the photographer herself; the service cannot sue in its own name, but it can arrange for the photographer to do so.

Insurance. The shop's general liability policy has an advertising injury section covering copyright infringement in "your advertisement." Whether a blog post is an advertisement under the policy is a question for the carrier; the lawyer tenders the claim anyway.

The negotiation. The lawyer removes the image, preserves the evidence, and writes back acknowledging the use, noting the registration date and § 412, explaining the absence of any basis for a § 1202 claim, and offering $900 in exchange for a full release of the photographer, the service, and their affiliates covering all past use of the photograph, with no admission of liability and mutual confidentiality. The service counters at $1,600. The parties settle at $1,150, paid within 30 days, with a written release signed by the photographer, not only the service.

What changes the numbers. Suppose instead the effective date of registration had been March 2, 2019, five weeks before the post. Statutory damages and fees would then be available. A court might well award $750 to $3,000, but the risk of a fee award in a contested case would make the claim worth more than that in settlement. On those facts, a settlement in the range of $2,000 to $3,500 would be within the realistic band, and an early offer of judgment would be worth considering if the claimant refused to move. The same email, with the same $2,400 demand, can be worth half as much or more than it asks, depending entirely on dates that the email did not mention.

Common mistakes

Treating the letter as a scam because it came from a service rather than a lawyer. Many automated notices are legitimate. Verify the claim; do not dismiss it.
Deleting the page and the evidence together. Removal is usually wise. Destroying the upload records, the CMS history, or the image file is not, and it may look like spoliation if the case is filed.
Assuming a credit line or a link back is a license. Attribution is not permission unless a license says it is.
Assuming a web designer's purchase covers everything. Stock licenses are often limited to the purchaser, a single project, or a number of impressions. Get the license text.
Arguing fair use for decorative use. After Warhol, Brammer, Philpot, and McGucken, an unaltered photograph used to illustrate its own subject is rarely fair use.
Ignoring a Copyright Claims Board notice. The 60-day opt-out window is strict, and silence makes the respondent a party bound by the result.
Overstating the claim (for senders). Demanding statutory damages and fees for a late-registered photograph invites a § 412 response that undermines credibility for the rest of the negotiation.
Settling with the agent alone. A release signed only by a service that lacks ownership may not bind the photographer. Require the owner's signature or documented authority.

Frequently asked questions

Is it legal for a company to use software to find my website and send me a bill? Yes. Searching the public web for copies of one's own work is lawful, and asking for a license fee is a normal way to resolve a copyright claim. What matters is whether the claim is accurate and the demand is reasonable, which depends on the facts discussed above.

I took the image down as soon as I got the letter. Am I off the hook? No. Removal stops ongoing infringement and reduces future exposure, and it helps on the damages factors. It does not erase the past use. It is, however, usually the right first step if you have no license.

Do I owe the full amount if the photograph was not registered? The owner can still register and sue for actual damages, and in the Copyright Claims Board can seek limited statutory damages. But if the infringement began before the effective date of registration (outside the three-month window), federal statutory damages and attorney's fees are unavailable under § 412. That usually reduces the claim's value substantially.

Can the demand go up if I wait? The demand amount is a negotiating position, and services often increase it over time. The legal exposure does not change much with time, except that delays can let a claimant register and that a lawsuit adds fee risk if the registration was timely.

What if an employee or a contractor posted the image? The business is generally liable for content on its own site, whether an employee or a contractor put it there. A contractor's agreement may provide an indemnity or a warranty that the images were licensed; check it and notify the contractor.

Is embedding an Instagram post safe? In the Ninth Circuit, embedding without copying the file is not a display under the server test (Hunley). In New York federal courts, district judges have rejected that test, and the Second Circuit has not settled it. Platform terms of service may also matter, depending on the platform. It is safer than copying, but not risk-free everywhere.

Should I hire a lawyer for a $1,500 demand? For a single image with a late registration, many businesses resolve claims themselves using a structured response. Where the registration was timely, multiple images are involved, a § 1202 claim is asserted, or a lawsuit or Copyright Claims Board claim has been filed, advice usually pays for itself.

Takeaways

Image demand letters come from an industry built on automated detection. They are often legitimate and almost always negotiable.
The registration date compared to the date of first use is the most important fact in any image claim. It decides whether statutory damages and fees are in play.
Actual damages mean the fair market license fee; statutory damages, when available, usually track a multiple of it; fees are the real leverage.
Section 1202 claims for removed credits can be valuable and do not depend on registration, but they require proof of knowledge.
Fair use rarely protects decorative use of a photograph. License, ownership defects, § 412, embedding (in some circuits), and the DMCA safe harbor for user uploads are the defenses that matter most.
The Copyright Claims Board is a real alternative forum with a 60-day opt-out that respondents must decide on deliberately.
Both sides do better with records: rights holders with registrations and license histories, users with license logs and image policies.

This document is general information, not legal advice for any particular situation; the law changes, and the facts matter.