The Slow Collapse of “Copyright Trolling”

Aaron Moss at Copyright Lately recently published an article about Prepared Food Photos (PFP), a stock photography archive that has become more famous for threatening small businesses than its image library.

Companies like PFP typically seek out infringements of their content and then send the companies demand letters. The goal, normally, is to seek out either quick but modest settlements or default judgments.

This has been lucrative for PFP, with the company earning nearly $2 million per year in legal settlements. According to discovery, this represents over 95% of the revenue the company makes.

However, at least one of their cases did not go to plan. The company targeted a small Milwaukee grocery store for sharing one of its photos on their Facebook. The company, with the help of Public Citizen, fought back and took the case to a trial.

There, the jury awarded PFP just $200 in damages. The company was further denied any attorneys fees, making the $200 the total amount of it could collect.

This is a major rebuke of PFP’s business model, but not the only one. Previously, the company paid a defendant to dismiss a case against it and another court awarded just $1,500 for the infringement of two images.

PFP isn’t alone in this kind of rebuke. In November 2024, I covered the case of a photographer who won just $940 in a federal court case. A year earlier a case where a photographer was awarded the statutory minimum, $750 per work, in a case before the Copyright Claims Board.

All these stories represent pyrrhic victories where photographers sought higher damages, but were granted small awards that, almost certainly, fail to cover legal and other costs.

However, these and similar awards send a strong message, while photographers can and should defend their work, copyright enforcement is meant to support a business model, not be a business model unto itself.

The Basics of Copyright Trolling

Note: Though I personally loathe the term “copyright troll” it is the common term used to describe this kind of practice. As such, I’ll be using it in this piece.

Copyright trolling, sometimes referred to as “speculative invoicing” or “speculative litigation” is a practice through which a rightsholder threatens numerous alleged infringers, seeking quick settlements or quick judgments in their favor.

These days, the most typical method is to send a settlement demand letter. This is usually sent either via email or physical mail and includes a demand to cease the infringement and pay a settlement fee, usually in the high three-figure to low four-figure range.

To be clear, the practice isn’t limited to photography. In the past, we’ve seen similar practices involving movie companies and newspapers. However, these days photographs are the most common type of content at issue in these cases.

This practice hinges on a simple fact, that defending oneself from a copyright infringement lawsuit is expensive and risks very high statutory damages. For someone targeted, it is much safer to simply pay to settle the case quickly and move on.

As such, this practice relies on three things. First, are clear-cut infringements, regardless of severity. Complicated and nuanced cases don’t make for quick settlements. Second, are targets who can pay but also can’t trivially take the risk of a lawsuit. This is why small businesses are often targeted.

Third, and most importantly, the threat of significant damages. Without that threat, there’s very little to motivate an alleged infringer to take the settlement.

That third element is what is being eroded, and it may have major impacts on the practice moving forward.

The Wild Swings of Statutory Damages

Theoretically, statutory damages for copyright infringement can be between $750 and $150,000 per infringed work. However, damages on the higher end of that scale are very rare. Still, they do happen.

In December 2023, photographer Scott Hargis won a $6.3 million jury award after it granted maximum statutory damages on 43 different images. However, the defendant in that case, Pacifica Senior Living Management LLC, didn’t do much to endear itself.

Not only did the company rebuff many reasonable settlement offers, but they continued to use the images even after the lawsuit was filed. It also helped that Hargis was, and still is, a respected architecture photographer who has an established business taking and licensing photos.

Copyright toll operations, however, take this script and flip it on its head.

Courts and the CCB have acknowledged serial litigants and treat them with mistrust. In PFP’s case, they were unable to prove that they had any significant photo licensing business and the defendants, small business owners who usually didn’t realize they were committing infringement, generally cooperated with removing images and minimizing harm.

When determining statutory damages, judges, juries and the CCB largely look at two factors. First is the amount of actual damages and the second is the behavior of both parties. If an image is licensed for a few dollars and generated little revenue for the infringer, they are going to be reluctant to grant high statutory damages unless there was egregious behavior.

That this means is that, when copyright troll cases go the distance, they often struggle to collect damages that justify filing the case in the first place.

To be clear, from the rightsholder’s perspective, these cases should almost never go to court. The goal is a quick settlement with minimal legal fees. However, if they don’t take cases to court, they risk subsequent infringers simply ignoring their demands as toothless. As such, lawsuits like this are an unpleasant necessity for the model.

Unfortunately for them, rulings like this one undermine the entire model. Why would anyone pay more than $200 to settle a case when that’s the amount they won after a trial? Verdicts like this one push down what they can reasonably seek for a settlement and encourage more defendants to fight back.

Both things, over time, can push the model to its breaking point.

Bottom Line

If the model were to die, it wouldn’t be the first time. Righthaven, Prenda and other large operations have gone the way of the dodo due to various factors, including malpractice and various courtroom defeats.

But, when it comes to photography, the landscape is very different. It’s not one photographer or even one company. It is numerous photographers, many of whom are understandably upset about widespread infringement and see this approach as a solution.

I don’t think the practice is going away any time soon. But it is being rapidly undermined.

Simply put, courts aren’t going to let you take a $1 image and turn it into a five-figure judgment. Though judges and juries have a lot of leeway when setting damages, they usually try to find some balance between the harm done and the behavior of the parties.

That puts rightsholders in a bind. It’s difficult to pitch a $1,000 settlement as being expedient when a jury only awarded you $200. Awards such as this one change the calculus for any infringers and not in a way that’s good for the plaintiff.

To be clear, I sympathize with photographers. They are victims of widespread infringement and there are no easy solutions. But trying to turn relatively minor infringements into big paydays does little to endear to judges, juries or the public at large.

The courts, by in large, have had enough. They are not going to enable this practice and that is bad news for the entire industry. Because, without the threat of big damages, photographers don’t have much leverage.

Without that leverage, the entire practice begins to slowly unravel.