Exposing the Tactics of Copyright Trolling

Copyright trolling has emerged as a troubling practice in intellectual property enforcement, targeting individuals and businesses with inflated claims of copyright infringement. By exploiting legal loopholes and leveraging the fear of expensive litigation, copyright trolls pressure victims into paying settlements that often exceed the fair market value of the disputed works. This article examines the financial dynamics, judicial perspectives, and broader implications of copyright trolling, integrating insights from both Dutch and German court decisions.

Some of the known copyright trolls: Copytrack GmbH, Visual Rights Group B.V., and many more (if anyone has information about other copyright troll, please contact us with details (see for form “contact” in menu)

Inflated Claims vs. Market Realities

Copyright trolls frequently demand license fees far above market norms, creating a stark disparity between claimed damages and actual costs:

  • Trolls often claim €360 per photo per year for online use.
  • Market rates (Adobe Stock, Alamy, and a growing number of other stock databases) for professional stock photos are considerably lower:
    • €5 to €10 for long-term online use.
    • €1 per photo from subscription-based platforms.
    • €65 for commissioned photography for regional newspapers.

These inflated claims often include surcharges of up to 250%, citing reasons such as deterrence, exclusivity loss, or personality rights violations. Such fees are strategically designed to intimidate alleged infringers into settling quickly without pursuing legal defenses.

Settlement Dynamics and Amplification of Claims

A typical example of copyright trolling involves a modest license fee being inflated through various surcharges:

  • Base license fee: €271.
  • Surcharges:
    • 120% for global reach.
    • 100% for lack of attribution.
  • Additional costs:
    • Documentation fees: €95.
    • Legal expenses: €627.50.

These additions escalate the claim to €1,914.90, forcing victims to settle to avoid the prohibitive costs of contesting these demands in court. Settlement amounts often range from €1,750 to €20,000, preying on victims’ fear of legal consequences.

Judicial Responses: Dutch and German Courts

Courts in both the Netherlands and Germany have increasingly scrutinized and challenged the inflated claims of copyright trolls, providing crucial guidance on copyright eligibility and the calculation of damages.

Dutch Court Decisions:

  • The Hague Court of Appeal (2020):
    • Reduced damages for historic postcards from €75 per image to just over €4 per image, aligning with market value.
  • Amsterdam Court of Appeal (2019):
    • Lowered a troll’s claim from €20,746.77 to €1,750, reflecting a reassessment of realistic values.
  • Arnhem-Leeuwarden Court of Appeal (2019):
    • Adjusted damages for 59 website photos to €1,500, considering the non-commercial nature of the usage.

German Court Decisions:

  • Regional Court of Cologne (Docket No. 28 O 124/08):
    • Declined copyright protection for a computer-generated visualization of the Cologne Cathedral due to a lack of individuality and reliance on known models.
  • Higher Regional Court of Berlin (Docket No. 2 U 12/16.Kart):
    • Ruled that computer-generated product images created exclusively by electronic commands lacked the creative process necessary for copyright protection.
  • Regional Court of Berlin (Docket No. 16 O 59/16):
    • Highlighted that while simple photographs might qualify for protection, elaborate visualizations often fail to meet the creativity standard for recognition as visual art.

These rulings emphasize that creativity and individuality are critical to copyright eligibility, challenging the validity of many claims by copyright trolls.

Eligibility for Copyright Protection: Creativity and Uniqueness

For an image or other creative work to be protected by copyright, it must demonstrate sufficient creativity and uniqueness. Some critical considerations include:

  • Creativity and Individuality:
    • The work must reflect personal choices and go beyond mere technical reproduction.
  • Uniqueness:
    • If a work closely resembles existing representations, it may not qualify for copyright protection.

The German courts have consistently underscored that technical or computer-generated works often lack the originality required for protection. The absence of significant creative elements can undermine a troll’s claim, especially when the contested work is indistinguishable from pre-existing designs.

Shifting the Burden of Proof

Even when copyright eligibility is established, copyright trolls face the challenge of proving ownership:

  • Provenance of Ownership:
    • The troll must demonstrate a clear chain of ownership, linking the claimed copyright back to the original author.
  • Specificity of Rights:
    • The claimant must show that their rights cover the alleged infringement, detailing how the rights were obtained and any limitations.

These requirements place a substantial burden on trolls, particularly when documentation is incomplete or when the claimed work lacks evident creativity.

Recommendations for Reform

Addressing copyright trolling requires a concerted effort by courts, legislators, and stakeholders. Key recommendations include:

  1. Stricter Guidelines for Damages:
    • Ensure claims align with actual market rates, reducing the scope for inflated demands.
  2. Transparency in Claims:
    • Encourage clear and fair settlement agreements to curb exploitative practices.
  3. Education for Potential Victims:
    • Raise awareness about legal defenses and procedural rights to empower those targeted by trolls.

Conclusion: Strengthening Defenses Against Copyright Trolling

Insights from both Dutch and German courts show the need for clear standards and consistent enforcement to curb copyright trolling. By challenging creativity, uniqueness,  ownership claims and so called “damages” or exorbitant license fees, victims can undermine the trolls’ leverage. These principles reinforce fair copyright practices and highlight the necessity of judicial and legislative clarity to protect creators and users alike.

This integrated perspective provides a robust framework for understanding copyright trolling and equips stakeholders with actionable strategies to combat exploitative practices.

Literature

Netherlands:

Dirk Visser, Charlotte Vrendenbarg, Bram Bogaerts, Auteursrecht-trollen, hoe ze te herkennen en hoe ze te bestrijden, AMI Tijdschrift voor auteurs-, media en informatirecht 2020/5 p. 141 (informal, AI generated English translation here1We cannot guarantee the accuracy of this AI-generated translation; please refer to the original publication for confirmation)

US:

Foster Swift, Under the Bridge – The Rise of Copyright Trolls in the Intellectual Property Space

Electronic Frontier Foundation, Copyright Trolls

UK:

Victoria Strauss, When the Copyright Trolls Came for Me

Charlie Lawson, Exploiting Creative Commons: The Rise of Copyright Trolling and Its Impact on Digital Creators

New Zealand:

Jack Yan, Copyright trolling: another fishy mob to block

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With special thanks to Bram Bogaerts (Visser, Schaap & Kreijger, Amsterdam, Netherlands) and Peter Meyer, Simmons & Simmons, Munich, Germany

All images and illustrations featured in our posts are properly licensed and legally sourced from reputable platforms such as Adobe Stock and other stock agencies. If any illustration has been generated using Al, this is explicitly noted. To the best of our knowledge, no copyrighted material is used without proper authorization.