Image Copyright Demand Response Checklist: A Practical Checklist

Summary. This checklist turns the response to an image copyright demand into ordered, check-off tasks, from the day a letter, portal notice, complaint, or Copyright Claims Board notice arrives to the day the settlement is signed and the image policy is in place. Each phase lists specific actions with the governing statute, rule, or case linked and a short practical note. The phases cover intake and calendaring, preservation and removal, verification of ownership and standing, the registration and Section 412 timing analysis, the license search, the defenses, any copyright management information claim, exposure calculation, insurance and vendor tenders, the first response and negotiation, the Board opt-out decision, early litigation steps, and the settlement and release. Red-flag boxes mark the points where responses most often go wrong. A deadlines table, a list of common failure points, and a short worked example involving a coffee roaster close the checklist.

An image demand rewards the recipient who does things in the right order. The facts that set the value of the claim (when the photograph was registered, when the use began, whether anyone bought a license) are easy to establish in the first two weeks and easy to lose if someone deletes the page in a panic. This checklist is the order.

How to use this checklist

Work through the phases in sequence. Phase 0 happens on the day the demand arrives; Phases 1 through 8 happen in the first two or three weeks, before any substantive response; Phases 9 through 12 depend on how the claimant responds. Phase 13 is for after the claim is closed.

Each item is a task with a checkbox, the governing authority where one applies, and a short note. Items marked Red flag are the ones that most often produce avoidable losses. Keep one file per claim with a numbered evidence index (E-1, E-2, and so on) so that letters and worksheets can refer to the same items.

The reasoning behind each task is explained in Responding to an Image Copyright Infringement Demand: A Practical Guide. The legal background, including how image licensing enforcement works and why registration timing dominates valuation, is in Image Copyright Demand Letters: How Photo Licensing Enforcement Works and What Claims Are Really Worth. Worksheets, letters, and the release referred to below are in the Image Rights Toolkit: Claim Evaluation Worksheets, Response Letters, and Image Licensing Records.

Phase 0: Intake and calendaring (day 1)

• Identify the document type. Automated notice, lawyer's letter, request to waive service, served summons and complaint, Copyright Claims Board notice, or DMCA takedown sent to your host. Note: only the last four carry legal deadlines.
• Calendar the real deadline. Summons: 21 days from service to answer or move, Fed. R. Civ. P. 12(a). Waiver request: return by the stated date; answer 60 days after the request was sent, Fed. R. Civ. P. 4(d). Board notice: 60 days from service to opt out, 17 U.S.C. § 1506(i). Letter: note the stated deadline as a negotiating date.
• Calendar a reminder at the halfway point of any legal deadline, and a second reminder five business days before it.
• Verify the sender independently. Look up the firm or service; do not click payment links or download attachments from unverified senders. Note: phishing emails sometimes impersonate copyright notices.
• Confirm the image is actually on your property. Visit each URL in the demand and confirm what appears there.
• Open a claim file with the demand, envelopes, email headers, and attachments as E-1.
• Assign an owner inside the business and decide whether to involve counsel now (see Phase 9 note).

Red flag: legal deadlines. A Copyright Claims Board respondent who does nothing within 60 days of service is bound to the proceeding and may be defaulted, with a determination enforceable in federal court, 17 U.S.C. § 1508. A federal defendant who does nothing faces a default judgment. Calendar these on day 1, not after the internal investigation.

Phase 1: Preserve and contain (days 1 to 5)

• Capture every page where the image appears, with URL, date, and time, in a format that shows the full page.
• Download the image file as stored on your server, keeping its file name and any embedded metadata.
• Export the upload date from the media library or content management system and the publication date and revision history for each page. Note: this is usually the evidence that decides the § 412 question.
• Search the Internet Archive for the earliest capture showing the image on your site.
• Export page analytics for the affected pages (views, dates).
• Collect source records: stock account download histories, designer emails, template documentation, media kits.
• Issue a short hold notice to staff and vendors who may have records, asking them not to delete emails, files, or accounts. See the Litigation Hold and Evidence Preservation Checklist: A Practical Checklist.
• Then remove or replace the image if no license is confirmed. Note: removal limits future exposure and helps on the damages factors; it does not erase past infringement.
• Check for the same image elsewhere: social media posts, newsletters, print materials, slide decks, marketplace listings. Log each use.

Red flag: deleting the evidence with the image. Removing a page is fine. Deleting the media library entry, rebuilding the site, or closing the stock account before exporting records can destroy the dates that defeat statutory damages and fees, and can look like spoliation once a dispute is foreseeable.

Red flag: editing the image. Never crop out, clone over, or alter a watermark or credit on an image you are still using. That conduct is the core of a § 1202 claim.

Phase 2: Verify the claimant, ownership, and standing (week 1 to 2)

• Identify the photographer named or implied in the demand.
• Identify the sender's role: owner, exclusive licensee, nonexclusive distributor, or agent (recovery service or law firm).
• Request written proof of ownership or exclusive license, and of an agent's authority. Authority: only "the legal or beneficial owner of an exclusive right" may sue, 17 U.S.C. § 501(b); transfers and exclusive licenses require a signed writing, 17 U.S.C. § 204(a).
• Screen for a bare right to sue. An assignee holding only the right to sue lacks standing, Righthaven LLC v. Hoehn, 716 F.3d 1166 (9th Cir. 2013).
• Check whether you commissioned the photograph. If a photographer you hired took it, look for a written assignment, a work-made-for-hire agreement, or facts supporting an implied license, Effects Associates, Inc. v. Cohen, 908 F.2d 555 (9th Cir. 1990). Employee status is tested under Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989). See the Work Made for Hire Determination Checklist: A Practical Checklist.
• Record who must sign any release (the owner, and any exclusive licensee for the relevant use).

Phase 3: Registration and the Section 412 analysis (week 1 to 2)

• Obtain the registration number for each photograph, from the demand or by request.
• Look up each registration in the Copyright Office's public records and save the record (E-numbered).
• Record the effective date of registration (the date the Office received the complete application), not the issuance date, 17 U.S.C. § 410(d).
• Record the registration type: single work, group of published photographs, group of unpublished photographs, or other collection. Authority: group options appear in 37 C.F.R. part 202.
• Record the publication date or "unpublished" status claimed.
• Confirm the demanded photograph is within the registration. For group registrations, compare titles; request the deposit copy from the Office if coverage is disputed.
• Confirm a registration or refusal exists before any federal suit. Suit requires Office action on the application, 17 U.S.C. § 411(a); Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296 (2019).
• Compare the effective date with the date your use began (from Phase 1).
• Apply § 412 to each photograph: if your use began before the effective date and the work was unpublished, or if it began after publication and before the effective date and registration was not made within three months of first publication, statutory damages and fees are unavailable, 17 U.S.C. § 412.
• Treat a continuing use as one infringement that commenced at the first post. Authority: Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696 (9th Cir. 2008).
• Separately analyze any new kind of use that began after registration (a print ad, a new campaign).
• Note registration errors without relying on them. Inaccuracies invalidate a registration only if knowingly included, Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 595 U.S. 178 (2022).

Red flag: using the "detected" date. The claimant's crawler date is when it found your use, not when your use began. The earlier your own records show the use beginning, the more likely § 412 bars statutory damages; never assume, and never misstate.

Phase 4: License search (week 1 to 2)

• Search stock accounts held by the business and by employees who handle marketing.
• Ask every vendor that built or maintained the site, or produced marketing, for license records for the identified images.
• Check theme, template, and site-builder documentation for bundled image licenses.
• Check manufacturer, distributor, and franchisor media kits and dealer agreements.
• Search email for permissions from photographers or subjects.
• For embedded content, save the platform's terms of service as they read at the time of the embed.
• Obtain the full license text as of the purchase date, not today's version.
• Check scope: licensee name, end-client rights, permitted media, seats, impressions, duration, attribution conditions, prohibited uses.
• Classify any limit you exceeded as a condition (infringement) or a covenant (contract only). Authority: Graham v. James, 144 F.3d 229 (2d Cir. 1998).

Phase 5: Defense screen (week 1 to 3)

• Fair use. Is the use commentary on the photograph, news where the photograph is the story, or indexing? If it is decorative or illustrative use of the subject, mark it unlikely. Authority: 17 U.S.C. § 107; Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023); Brammer v. Violent Hues Productions, LLC, 922 F.3d 255 (4th Cir. 2019); McGucken v. Pub Ocean Ltd., 42 F.4th 1149 (9th Cir. 2022). Compare indexing thumbnails in Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003). Use the Copyright Fair Use Checklist: A Practical Checklist for a full analysis.
• De minimis. Mark it unavailable for a full, recognizable copy; low traffic goes to damages. Authority: Bell v. Wilmott Storage Services, LLC, 12 F.4th 1065 (9th Cir. 2021).
• Embedding. Confirm whether the image file was on your server or served by a platform. In the Ninth Circuit, embedding without hosting is not a display, Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007); Hunley v. Instagram, LLC, 73 F.4th 1060 (9th Cir. 2023). In New York federal courts, district judges have rejected that test, Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d 585 (S.D.N.Y. 2018).
• DMCA safe harbor. Was the image uploaded by a user (not an employee or vendor) to a site you host? Do you have a designated agent, a repeat-infringer policy, and a record of expeditious removal? Authority: 17 U.S.C. § 512(c), (i); Mavrix Photographs, LLC v. LiveJournal, Inc., 873 F.3d 1045 (9th Cir. 2017) (moderator review can defeat "at the direction of a user"). See the DMCA Safe Harbor Compliance Checklist: A Practical Checklist.
• Limitations. Did the use end more than three years before any suit? Authority: 17 U.S.C. § 507(b); Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014) (separate accrual); Warner Chappell Music, Inc. v. Nealy, 601 U.S. 366 (2024) (no separate damages bar for timely claims).
• Identity of the image. Confirm your image is the claimant's photograph, not a different photograph of a similar scene.
• Write a one-line conclusion for each defense in the claim file.

Phase 6: Copyright management information (week 1 to 3)

• Identify any § 1202 claim in the demand: removal or alteration of a watermark, credit, or metadata, or false attribution, 17 U.S.C. § 1202.
• Request the claimant's version showing CMI.
• Compare your copy: crop, dimensions, watermark area, and metadata.
• Search for a pre-stripped source: an earlier copy circulating without CMI that matches yours.
• Check whether your platform strips metadata automatically on upload, and save its documentation.
• Assess knowledge. Removal claims require that the defendant knew CMI was removed and had reasonable grounds to know it would conceal infringement, Mango v. BuzzFeed, Inc., 970 F.3d 167 (2d Cir. 2020). Printed credits count as CMI, Murphy v. Millennium Radio Group LLC, 650 F.3d 295 (3d Cir. 2011).
• Price the claim: $2,500 to $25,000 per violation if statutory damages are elected, with possible reduction for innocent violations, 17 U.S.C. § 1203(c).

Red flag: ignoring the CMI count. Because most courts hold that § 1202 claims do not depend on registration or § 412, a CMI count can carry real value even when the infringement count does not.

Phase 7: Exposure calculation (week 2 to 3)

• Estimate the realistic license fee for the use and duration from the claimant's published rates, licensing history, and comparable stock licenses. Authority: actual damages, 17 U.S.C. § 504(b); On Davis v. The Gap, Inc., 246 F.3d 152 (2d Cir. 2001).
• Assess profits attributable to the image (usually negligible for decorative use; consider paid ads and product pages).
• If § 412 allows statutory damages, model a range within $750 to $30,000 per work (up to $150,000 willful; down to $200 innocent), 17 U.S.C. § 504(c), using the factors in Bryant v. Media Right Productions, Inc., 603 F.3d 135 (2d Cir. 2010).
• Check for a copyright notice on the copy you accessed; a proper notice defeats the innocent-infringer reduction, 17 U.S.C. § 401(d).
• Count works, not posts. One award per work; confirm how group-registered photographs will be counted.
• Estimate fee-shifting risk if § 412 allows fees, applying 17 U.S.C. § 505, Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994), and Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. 197 (2016).
• Estimate the Board scenario: $15,000 per timely registered work, $7,500 per late-registered work ($15,000 total), $30,000 per proceeding, 17 U.S.C. § 1504(e).
• Estimate your own defense cost at the letter, Board, and federal-court stages.
• Set a target and a walk-away number before the first response. See the Settlement Negotiation Preparation Checklist: A Practical Checklist.

Phase 8: Insurance and vendor tenders (within days of receipt)

• Identify every potentially responsive policy: general liability (personal and advertising injury), media liability, professional liability, cyber.
• Send written notice with the demand to each carrier, and ask whether the carrier consents to your handling the letter-stage response.
• Check for consent-to-settle and voluntary-payment clauses before offering money.
• Tender defense and indemnity in writing to any vendor that supplied the image, citing the contract's warranty and indemnity clauses.
• Calendar follow-ups for carrier and vendor responses.

Phase 9: First response and negotiation (week 2 onward)

• Decide whether counsel is needed. Involve counsel if registration predates your use, there are multiple images, a § 1202 claim is asserted, a suit or Board claim exists, the image was in paid advertising, or the claimant refuses basic proof.
• Choose the first letter: request for proof, no-liability response, or counteroffer (templates in the toolkit).
• Confirm removal in the letter if the image is down.
• State facts only after verifying them (dates, duration, source).
• Avoid admissions of willfulness or speculation about who posted the image.
• Label settlement communications. Note: FRE 408 limits use of compromise offers to prove liability but is not a privilege.
• Tie every number to a reason (registration timing, license evidence, removal, traffic, CMI evidence).
• Agree on release terms before agreeing on money (Phase 12).
• Do not pay through a portal link before a signed release.

Phase 10: Copyright Claims Board opt-out decision (within 60 days of service)

• Confirm the service date and calendar day 60.
• Read the claim, the initial notice, and the opt-out instructions, 37 C.F.R. part 223.
• Run the comparison: registration timing (federal fees available or not), claims the Board cannot hear (it cannot hear § 1202 claims), cost, defenses, and appetite for a federal suit if you opt out.
• Write a short decision memo (template in the toolkit) and get client sign-off.
• If opting out, file through the Board's system or on the paper form, keep the confirmation, and calendar for a possible federal filing.
• If staying, calendar the Board's schedule, consider the smaller claims track for claims of $5,000 or less, 37 C.F.R. part 226, and prepare the response. Procedures appear in 37 C.F.R. part 222.
• Remember that each respondent opts out separately, and settlement talks do not toll the window.

See the Copyright Claims Board Filing and Opt-Out Checklist: A Practical Checklist for the full mechanics.

Red flag: assuming the Board is always the cheaper risk. When the registration was late, federal court offers the claimant only actual damages and no fees; the Board allows up to $7,500 in statutory damages per work. For a respondent with a late-registered claim against it, staying can be the more expensive choice. When registration was timely, the reverse is often true.

Phase 11: If sued in federal court

• Calendar the answer date (21 days after service; 60 days after a waiver request was sent).
• Retain counsel admitted in the district and re-tender to carriers with the complaint.
• Check personal jurisdiction and venue. Compare Mavrix Photo, Inc. v. Brand Technologies, Inc., 647 F.3d 1218 (9th Cir. 2011).
• Check the registration allegation against Fourth Estate and § 411(a).
• Consider an early offer of judgment under Fed. R. Civ. P. 68. Note: in the Eleventh Circuit, a plaintiff who does not beat the offer may owe the defendant's post-offer fees, Jordan v. Time, Inc., 111 F.3d 102 (11th Cir. 1997); the Seventh Circuit disagrees, Harbor Motor Co. v. Arnell Chevrolet-Geo, Inc., 265 F.3d 638 (7th Cir. 2001).
• Ask about court-annexed mediation or early settlement programs.
• Preserve a record of the claimant's pre-suit knowledge (your proof requests, license evidence) for a possible fee motion under § 505 or 28 U.S.C. § 1927. Note: sanctions are reserved for real misconduct, as in Liebowitz v. Bandshell Artist Management, 6 F.4th 267 (2d Cir. 2021).

Phase 12: Settlement and release

• Releasor is the owner (and any exclusive licensee), with a representation of ownership and authority.
• Releasees include the business, affiliates, officers, employees, and vendors involved in the use.
• Works identified by registration number and thumbnail or file name.
• Uses identified by URL and by any other medium found in Phase 1.
• Release covers infringement and § 1202 claims, known and unknown, for all past use through the effective date.
• Payment terms: amount, method, date; payment after signature.
• Removal confirmation or, if continued use is wanted, an express prospective license with scope and term.
• No admission of liability.
• Confidentiality with carve-outs for legal, tax, insurance, and regulatory disclosures, if wanted.
• Dismissal with prejudice of any pending case or Board proceeding, with responsibility for filing.
• Remove one-sided terms from claimant forms, such as liquidated damages for future use or releases that run only one way.
• Carrier consent obtained if required.

See the Settlement Agreement Checklist: A Practical Checklist for general release terms.

Phase 13: Prevention (after resolution)

• Adopt a written image use policy listing approved sources and prohibited ones (search results, social media, competitors' sites).
• Start a license log with source, license text (saved as PDF), purchase date, licensee, permitted uses, pages, and expiration.
• Amend vendor contracts to require licensed images, delivery of license documents, and indemnity.
• Audit the website and social accounts for other unlicensed images, especially after redesigns.
• Designate a contact for future demands and, if you host user content, register a DMCA agent.

Deadlines table

Common failure points

1. Paying first, verifying never. The rate-card price is paid for a claim whose registration post-dated the use.
2. Removing the evidence. The site is rebuilt and the upload dates are gone.
3. Missing the Board window. The notice sits in a mailroom for nine weeks.
4. Releasing too narrowly or with the wrong party. The agent signs; the photographer sues later, or a newsletter use was never covered.
5. Overplaying fair use. A decorative use is defended as "transformative," and the credibility cost carries into the money discussion.
6. Skipping the tender. The carrier or vendor would have paid, but notice came too late.

Short worked example: Larkhaven Coffee Roasters

Larkhaven, a roaster in Sacramento, receives an automated notice about two images: a photograph of a pour-over on its blog and a coffee-farm photograph embedded from a photographer's Instagram post on its "Our Sourcing" page. Day 1: the office manager identifies the notice as a letter (no legal deadline), verifies the sender, and opens a file. Days 1 to 3: she captures both pages, exports the media library, and finds that the pour-over image was uploaded on March 3, 2021; the Instagram post is embedded, not stored on Larkhaven's server. She removes the pour-over image. Week 2: the registration for the pour-over photograph shows an effective date of June 10, 2022; it was published in 2020. Under § 412 and Derek Andrew, statutory damages and fees are unavailable. The farm photograph's embed sits in the Ninth Circuit, where Hunley and Perfect 10 apply the server test. No license exists for the pour-over; no CMI was removed. Exposure: a license fee of a few hundred dollars for the pour-over and minimal risk for the embed. Larkhaven sends a combined letter: a no-liability response for the embed and a $350 counteroffer for the pour-over, with a full release by the owner. The claim settles for $500 with a release covering both images.

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

Related Documents

Related Articles

• Image Copyright Demand Letters: How Photo Licensing Enforcement Works and What Claims Are Really Worth: the business and the legal levers behind each phase.
• Copyright Damages and Remedies: Statutory Damages, Profits, Injunctions, and Fees: the remedies that drive Phase 7.
• The Copyright Claims Board: Small Claims Copyright Litigation Under the CASE Act: background for Phase 10.
• Trademark Coexistence and Consent Agreements: How Rivals Share a Name and Persuade the USPTO: coexistence and consent agreements that let rival brands share a name.

Related Guides

• Responding to an Image Copyright Infringement Demand: A Practical Guide: the narrative version of this checklist.
• Bringing or Defending a Claim Before the Copyright Claims Board: A Practical Guide: Board practice for respondents who stay.
• Responding to a Cease and Desist Letter: A Practical Guide: general demand-letter strategy.
• Negotiating a Trademark Coexistence Agreement: A Practical Guide: coexistence and consent agreements that let rival brands share a name.

Related Checklists

• Copyright Infringement Claim Evaluation Checklist: A Practical Checklist: a general infringement screen.
• Copyright Claims Board Filing and Opt-Out Checklist: A Practical Checklist: opt-out mechanics.
• Settlement Negotiation Preparation Checklist: A Practical Checklist: preparing the numbers before negotiating.
• Settlement Agreement Checklist: A Practical Checklist: release terms.
• Trademark Coexistence and Consent Agreement Checklist: A Practical Checklist: coexistence and consent agreements that let rival brands share a name.

Related Toolkits

• Image Rights Toolkit: Claim Evaluation Worksheets, Response Letters, and Image Licensing Records: the worksheets, letters, release, and log used with this checklist.
• Copyright Claims Board Toolkit: Claim Statements, Opt-Out Decisions, and Settlement Templates: Board forms.
• Fair Use Toolkit: Analysis Memoranda, Clearance Decisions, and Litigation Positions: when a fair use memo is warranted.
• Coexistence Agreement Toolkit: Term Sheets, Consent Agreements, and Field-of-Use Clauses: coexistence and consent agreements that let rival brands share a name.