Receiving a copyright demand letter can feel confusing and unfair, especially when you genuinely tried to use the material properly. You might have paid a freelancer to create your website, selected an image from a page labeled “free,” or relied on photographs supplied for your product listings. Now, even though you believed you had permission, you are being asked to remove the content and pay compensation.
An honest mistake does not automatically prevent liability, but the circumstances still matter. If you were unaware of the infringement and had no reason to believe the material was being used without permission, you may be able to argue that the infringement was innocent.
Copyright Infringement Does Not Always Require Intent
Copyright infringement generally occurs when someone violates a copyright owner’s exclusive rights without permission or a valid legal defense. Using protected photographs, videos, music, or text can create liability even when you did not realize permission was required.
Finding an image through Google, crediting its creator, or hiring someone else to post it does not automatically establish authorization. A license, fair use, or another defense must be evaluated separately from whether the infringement was innocent.
When Is Infringement Considered Innocent?
Under 17 U.S.C. § 504(c)(2), the person seeking an innocent-infringement reduction must prove they were unaware and had no reason to believe their conduct constituted infringement.
An honest belief is only part of the analysis. The circumstances must also support it. A seller who receives photographs from a supplier with credible permission to use them may have evidence supporting innocence. Copying a watermarked photograph from a competitor’s website presents a different situation.
Continued use after receiving notice of a claim can undermine an innocence argument. A demand letter does not establish infringement by itself, but it should prompt a review of the work’s source and any claimed permission.
How Does Innocence Affect Damages?
Statutory damages are amounts awarded within a range set by law rather than calculated from the owner’s proven losses. In federal court, when these damages are available, the ordinary range is $750 to $30,000 per infringed work. Proven willful infringement can support an award of up to $150,000 per work.
If the defendant proves innocent infringement, the court has discretion to reduce statutory damages to as little as $200 per work. That reduction is not automatic. The number of copies or listings also does not necessarily equal the number of awards, since the statute generally calculates damages by infringed work.
What If There Was a Copyright Notice?
Under 17 U.S.C. § 401(d), a proper copyright notice on published copies the defendant accessed generally prevents reliance on innocent infringement to reduce damages.
A watermark can raise questions about authorization without necessarily qualifying as that statutory notice. In comparison, the absence of a notice does not make a work free to use. Copyright generally arises when an original work is fixed in a tangible medium.
Why Does Registration Timing Matter?
For U.S. works, registration or refusal of registration is generally required before filing an infringement lawsuit. A copyright owner can still send a demand letter before that requirement is satisfied.
Under 17 U.S.C. § 412, statutory damages and attorney’s fees are generally unavailable for infringement that began before the effective registration date. An important exception applies when registration occurs within three months after first publication.
Even without statutory damages, a copyright owner may seek actual damages, attributable profits, and an injunction. Innocence therefore does not necessarily eliminate the claim.
Take the Claim Seriously Without Assuming Liability
Preserve the demand letter, disputed material, licenses, invoices, and communications showing where the work came from. Removing the material can prevent continued use, but keep evidence of its source, how it appeared, and who provided it. Those records can help determine whether you had permission, whether infringement occurred, and whether an innocent-infringement argument affects the damages being demanded.
The Russell Firm can review the claim, registration history, and licensing records before you respond. Contact The Russell Firm to discuss the allegations and your available options.
