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Copyright Blog

Is that free stock photo really free?

Meyer, Suozzi, English & Klein, P.C. v. Higbee et al - Case No. 2:18-CV-03353

A recent suit was filed for a declaratory judgment to protect a user of creative content from possible future suits of copyright infringement. The case turns on what the consequence of not following the terms of a Creative Commons license should be.


Defendants posted a simple, stock type photograph online and advertised the image as free for use. This use was conditioned on the inclusion of an attribution. The requirements for the use were defined as a Creative Commons Share Alike 3.0 license. This license allows for a user of the content to use, "remix, transform" and "copy and redistribute the material" held under the license, but requires that the user give the creator credit and provide a specific listed attribution with any use of the licensed content. Notably, the summary of the license terms includes a statement that the license "cannot [be] revoke[d] long as you follow the license terms," implying that it can be revoked if the license requirements are not followed.

The user of the image in this case did not include the required attribution when they attached the licensed photo to their blog post. Upon discovering this, defendants approached the user asserting that their copyright in the image had been infringed, stating that unless an agreement was reached defendants would sue the users in court and request the maximum possible relief "which may include statutory damages...for up to $150,000 for intentional infringement or $30,000 for unintentional infringement," and demanding a settlement of $5,280 for neglecting to follow the terms of the license and infringing the copyright in the image as a result.

In response to these demands, the user of the photo has filed suit seeking a declaratory judgment against the company and individuals who offered the photo online to protect against any possibly future liability for the claims. In the complaint, the users of the image assert that the lack of inclusion of the required attribution was innocent, accidental, and not harmful to defendants. They also claim the requirement was not clearly listed and that defendants were intentionally "trolling the Internet for users of the Image with intent to trap innocent and unsuspecting victims, whom Defendants could then intimidate into unjustifiably paying thousands of dollars."

So what is the correct answer in a situation like this one? While many of us would likely be appalled at the price of an image jumping from $0 to $5,280 based on the lack of a one line attribution, can a user really be justified in ignoring the terms of a license and can a creator really be forced to essentially give up their content on anyone else's terms simply because the original conditions were not monetary?