Reprinted with permission from the April 23, 2026, edition of The Legal Intelligencer© 2026 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
Receiving a copyright infringement demand letter can be alarming. Many recipients are told they owe thousands of dollars for allegedly using a photograph, graphic or other image online. The letter often warns of statutory damages of up to $150,000 per infringement and threatens federal litigation if the demand is not paid.
Do copyright trolls actually follow through on their threats to sue? The answer is: sometimes, but far less often than the letters suggest. The more important question is how to distinguish between an empty threat and a demand that poses real litigation risk. Understanding how these claims are typically enforced can help recipients assess exposure and decide how to respond.
Key takeaways
The term “copyright troll” is commonly used to describe entities that aggressively enforce copyrights, often for photographs or other digital content of limited creative value, primarily through large volumes of demand letters.
The troll business model works like this:
These campaigns are often directed at small businesses, bloggers, and website operators who may have obtained an image from the internet without realizing it was copyrighted. Some aggressive trolls may identify lingering uses of images that were once legitimately licensed to users via online platforms but are no longer licensed by the rights owners.
Demand letters are the cornerstone of the copyright-troll business model.
Filing a federal copyright lawsuit is expensive and time-consuming. By contrast, sending large volumes of demand letters is relatively inexpensive. Even if only a small percentage of recipients pay the requested settlement, the campaign can still be profitable.
As a result, many enforcement programs rely on scale, modest settlement demands, and threats of litigation in a specialized field of law.
The letters are designed to encourage quick settlement by emphasizing potential statutory damages and litigation costs. But some copyright trolls do file lawsuits and use litigation itself to drive higher settlements. The key is knowing the difference between claimants who rely almost entirely on demand letters and those willing to sue.
Some of the more prolific copyright enforcement entities or their firms include Higbee & Associates, PicRights, Pixsy, Copytrack, Copycat Legal, and some Europe-based organizations. Each operates differently. Some rarely litigate, while others have established track records of filing lawsuits. While lawsuits do occur, most copyright demand letters never lead to litigation.
There are several reasons:
Litigation is expensive
Federal copyright litigation can easily cost tens or hundreds of thousands of dollars. For claims involving a single photograph or image of limited creative value, the economics of litigation may not make sense.
Legal uncertainty
Many copyright claims contain legal weaknesses, including:
These uncertainties make litigating risky for the party bringing the claim.
Settlement is the goal
For many enforcement programs, the demand letter itself is the primary tool for generating revenue. Litigation is typically reserved for situations where settlement efforts fail or where the troll believes it has a clear path to proving infringement. Understanding when the troll has leverage significant enough to warrant a lawsuit is critical to evaluating how to respond.
Copyright infringement is not a strict-liability claim, but it often operates similarly at the threshold stage. A defendant’s intent to infringe, or lack thereof, is generally irrelevant to the threshold question of whether infringement has occurred. Intent matters more in the calculation of damages. Infringement that falls into the narrow category of innocent infringement may support a lower damages award, while willful infringement may justify enhanced damages.
A business that unknowingly used a copyrighted image, perhaps believing it was free to use or properly licensed, can still be found liable for infringement, even if the content was taken down immediately upon receipt of a troll letter.
Risk increases materially if the allegedly infringed work was registered within three months of publication or before the defendant’s infringement. In that circumstance, the claimant may be positioned to seek statutory damages and attorneys’ fees if infringement is proven. That fee-shifting risk gives claimants leverage. By setting a settlement demand below the recipient’s expected defense costs, a claimant can make even a substantial payment appear financially preferable to litigation.
Under the right set of facts, this can put a defendant in a difficult position. A troll is likely to perceive that it has a clear path to prevailing on the merits of the infringement claim if the work in question was used in any commercial setting without authorization (thereby minimizing the potential of a successful “fair use” defense). If the work in question was timely registered with the Copyright Office, the troll will also perceive that recovery of its attorney fees is likely, which will incentivize the troll to at least file a complaint. Claimants with strong evidence of commercial infringement and a plausible path to recovering attorney fees are the ones most likely to sue.
If a copyright infringement lawsuit is filed, the case will typically proceed in federal court with the following stages.
Importantly, many cases still settle even after a lawsuit is filed, but unless the defendant can mount a strong defense that is highly likely to both reduce damages and make an award of the troll’s attorney fees unlikely, the defendant must decide whether to fight or settle.
There can be merit to fighting. Many copyright trolls prefer to avoid full discovery, particularly where discovery may expose weaknesses in their damages theories, licensing history or broader enforcement model.
During the discovery phase of the suit, the defendant may be able to force the troll to reveal unfavorable facts, such as that its primary source of revenue isn’t from commercializing copyrights through traditional licensing or sale, but from strong-armed settlements and litigation. The defendant may also compel the troll to disclose the terms and fees for any legitimate licensing of the infringed work by the troll or other licensing organizations. Such information can reveal the work’s limited value and influence a low damage award. This sort of exposure could be detrimental to the troll’s business model.
The defendant may also be aware of facts the troll is not, such as a strong defense. The defendant may have a proper license to the work in question, a good fair use defense, or be able to show that the infringement was truly innocent. Accordingly, some targets of trolls may go on the offensive, betting that a hard-nosed response may cause the troll to walk back its demands or back off entirely.
There are risks to fighting as well. Discovery works both ways, and the defendant must consider what it may not want to reveal. For example, the defendant may know of, or at least be at risk of, having infringed additional works. Discovery may confirm that infringement has occurred, expose other unlicensed uses, or strengthen the troll’s damages arguments. What begins as a defense strategy can become a useful fishing expedition for the other side.
Litigation is expensive, and merely engaging in discovery and forcing the likely resistant troll to be forthright can cause legal fees to eclipse the cost of a negotiated settlement. Defendants must bear in mind that as they force the troll to incur attorney fees, they risk having to pay those bills should the troll prevail and the court award the troll its attorney fees.
The other aspect of settlement is that the parties can achieve more than they can with a favorable decision. For example, defendants may negotiate a settlement that provides broader protection against future claims by the troll, whereas a court victory will resolve only the immediate matter. In exchange for a settlement payment, the terms of the settlement agreement may shield the defendant from future claims by the same troll, even claims not yet identified. Anyone facing a copyright troll lawsuit must carefully weigh the pros and cons of fighting versus settling. In many cases, frustration aside, a negotiated resolution may be the more practical option.
Copyright demand letters can be intimidating, but they are not automatic precursors to litigation. Many trolls rely on fear and uncertainty to extract settlements, knowing that most recipients will never see the inside of a courtroom. At the same time, some enforcement programs do litigate aggressively, and ignoring a demand letter entirely carries real risk.
The right response depends on the specific facts. Who sent the letter? Is the copyright registered? Was the use commercial? What are the potential damages? These are questions best answered with the guidance of an attorney experienced in copyright enforcement matters.
If you or your business has received a copyright demand letter or been named in an infringement lawsuit, an early legal assessment can make a meaningful difference. A prompt review can help you understand your exposure, preserve defenses, and decide whether the better strategy is to negotiate a practical resolution or prepare for a stronger defense.
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