It happens way too often. A website owner or employee innocently downloads to their website a photograph or some other work to illustrate or explain some aspect of the owner’s business. Or, its use may be intended to draw more viewers to the website.

The work may be a news photo, an illustration or an article. Use may be as innocent as finding and downloading a photo of the city’s skyline just to emphasize the business is local. One picture, they say, is worth a thousand words.

Then a letter arrives, demanding that a work must be immediately taken down from the website. The letter further demands that the user pay compensation to the owner of the work for unauthorized use, claiming that use on the website is copyright infringement. The compensation demanded may be in low five figures per work infringed, sometimes more.When multiple images belonging to the same author are infringed, the monetary demand may be staggering.

Questions abound. Has someone’s copyrights really been infringed or is this a scam? If the letter is real, are there defenses to infringement available? Where is this going to end up; how much will it cost? Should the claim be fought?

The first question is often easy. From where was the work taken, and is the demand made in the owner’s name? Is the demand from a real law firm in the United States? If the answers are yes, the copyright to the work likely belongs to the third party who is pushing the claim.

The work may be in the public domain as a government work or a work created beyond the life of the copyright. That may be 70 years after the author’s death or 95 years from creation for certain works. Fair use is probably not a reasonable defense.

Do not ignore the letter. And, remove the work immediately while investigating the claim.

Ask for a copy of the registration and the deposit copy to verify that the downloaded work is the work registered to the claimant and to learn when the work was registered.

Sometimes the monetary demand is reasonable, but that’s an evaluation of exposure to damages that must occur. Was the work registered before the use occurred or within three months of first publication? If yes, the author is entitled to claim statutory damages for each work used and attorney fees. While statutory damages can be as high as $150,000 per work infringed, it is not likely such a large amount will be awarded.

But the user’s conduct in dealing with the copyright claim can have a negative impact on statutory damages and attorney fees if the user acts unreasonably or fails to take down the work.

If the work was not registered prior to use, the author can’t collect statutory damages or attorney fees, and would want to establish reasonable comparable license fees for the work to establish damages. If damages are small and attorney fees are not available the work’s owner may not sue. But, most lawyers have heard clients say, “It’s not about the money; it’s about the principle.”

It can be a costly mistake not to train staff to respect the copyrights of third parties and to assure they have acquired reproduction rights before they download a work to the company’s website. Rights can be obtained by a release or by obtaining the work from someone like Shutterstock, but terms of usage must be obeyed. If use exceeds the granted authority, it is infringing.

Proper use of third-party works should result from exercise of good judgment, but as most of us have learned, common sense is not that common.

James B. Astrachan is a partner at Goodell, DeVries, Leech & Dann, LLP and teaches trademark and unfair competition law at University of Baltimore Law School.

This article was originally published in The Daily Record.