One day in 2014, South Carolina real estate agent Liz Shirley typed “free images of Wild Dunes Resort” into Google, downloaded what she assumed to be a free photo of the Charleston-area vacation hotspot, and posted it to the blog she’d recently started about her region’s neighborhoods.
The blog was neither long-lived nor well-trafficked, Shirley said. She soon gave up on it. “I think it may have gotten 20 views,” she told The Assembly.
Among her viewers was Asheville photographer David Oppenheimer, who emailed her on August 17, 2015: “I noticed that my photo of Wild Dunes Resort is being used on your website …. Where did you get the photo from?”
Shirley took down the photo but didn’t respond. More than a year passed without hearing from Oppenheimer again, and she thought that was the end of it.
Then she received a certified letter from one of his attorneys.
“We have been authorized to file a lawsuit against Liz Shirley and any other appropriate parties in federal court for copyright infringement,” attorney Christopher Schoen wrote in the letter, dated March 17, 2017. “Each instance”—each was underlined—of infringement could cost her up to $150,000, he warned. She might also be on the hook for attorneys’ fees, which “will increase proportionate to the time we are required to spend on the case.”
“You or your attorney should contact me immediately and be prepared to talk in a meaningful way about resolving this matter,” Schoen concluded.
On March 31, 2017, Oppenheimer filed suit in federal court, accusing her of illegally posting his photo to her website and Facebook page. He also accused her of removing the photo’s watermark, which contained his copyright notice. (She says the image she downloaded had no watermark.)
Shirley said she didn’t receive Schoen’s letter until early April, and she reached out immediately.
“Mr. Oppenheimer is a reasonable guy, and is open to working something out,” Schoen told Shirley in an email, which The Assembly has reviewed. He suggested she contact her attorney and notify her insurance company.
Shirley responded the next day: “I am, frankly, shocked by all of this. I do not have an attorney, nor can I afford an attorney. I do not have [business liability] insurance, either. I am a very hard-working mother putting two children and a husband through school. I live paycheck to paycheck.”
She told Schoen that she had spoken with friends who were photographers for the Associated Press, who said Oppenheimer “should have offered to sell me a license to use it instead of going straight to a lawsuit,” Shirley wrote. “You mentioned that Mr. Oppenheimer is a reasonable man. I believe a reasonable man would have offered me a chance to pay him before taking legal action.”
Schoen replied on June 13, 2017. “As I am sure you can understand, Mr. Oppenheimer could not survive as a professional photographer if he had to locate and personally contact infringers just to be paid his license fee,” he wrote. He offered to settle the claim for $35,000.
Shirley balked. “I’m thinking, why does he think he deserves it?” she recalled.
A friend who is a lawyer told her she had little choice but to negotiate. A trial in federal court would be prohibitively expensive and unpredictable, and the outcome could be catastrophic.
In July 2017, Shirley settled Oppenheimer’s claims for what she described as “significantly less” than his initial demand, though a nondisclosure agreement precludes her from sharing the exact amount.
“What I always wondered is, how well is he doing in the photography business?” Shirley said. “I think this is a real moneymaker for him.”
Court records indicate she’s likely right. Oppenheimer settled 14 federal copyright infringement lawsuits in 2017. That year, he made more than $400,000 from litigation—an apparent average of nearly $30,000 per settlement—but less than $5,000 from photography, a judge noted in a 2022 ruling.
Since 2011, Oppenheimer has filed more than 170 copyright infringement lawsuits in 24 states and the District of Columbia, according to the federal courts database. Nearly all have ended in settlements, he testified in a 2021 deposition.
Across the country, copyright lawsuits have proliferated in the last decade, rising from fewer than 2,000 in 2010 to more than 4,500 last year. Legal scholars told the Supreme Court in 2021 that half of these suits come from “trolls” who “enforce copyrights not with the aim of protecting creative content but as a means of extracting settlement payments.”
“Copyright trolling,” the scholars wrote, “has taken over copyright litigation.”
Though several of Oppenheimer’s targets have called him a “troll” in court filings, he’s not doing anything illegal. Photographers, like other artists, are entitled to protect and earn money from their work. Republishing photographs without permission, even on an obscure blog, is arguably tantamount to stealing. The practice’s ubiquity doesn’t change that.
But the payments Oppenheimer extracts are often vastly disconnected from any losses he’s suffered.
“Copyright is important. But copyright is out of balance,” said Mitch Stoltz, the director of the Electronic Frontier Foundation, which advocates for digital civil liberties. “And it creates these perverse incentives that lead to people like this—people who are not monetizing their creative work, they’re monetizing threats of litigation.”
A ‘Troll’ Is Born
David Oppenheimer did not respond to The Assembly’s requests for an interview or answer detailed questions submitted by email.
In court filings, Oppenheimer—who records indicate is 53—said he started taking his camera to concerts in 1998, and over the next decade, “traveled extensively around the United States” as a photographer. He said his work has been published by “an array of media outlets,” including Rolling Stone and MTV, and has been displayed “at the Museum of the City of New York and exhibited throughout the world.” According to his website, Oppenheimer has photographed the Bonnaroo Music Festivals, Phish at Madison Square Garden, and The Dead at Red Rocks.
Oppenheimer eventually began shooting landmark buildings, mountain and coastal resorts, universities, and other places likely to appear in marketing materials or visitors’ guides, from a helicopter or airplane. These aerial images are now central to many of his lawsuits.
But he initially targeted entertainment companies that used his concert photos. Oppenheimer filed his first infringement complaint on November 3, 2011, against a Massachusetts-based website that used his photo of the DJ Bassnectar. He filed five similar complaints over the next two years.
After that, his lawsuits became more frequent, and the defendants more diverse. He sued real estate companies, magazines, a church group, a boarding school, a zoo, a Mary Kay sales director, the American Cornhole League, and engineering consultants who used his photo on a slide in a PowerPoint presentation, among others.
Each case involves a photo or photos he has registered with the U.S. Copyright Office, watermarked with his copyright, and published on his website, embedded with keywords and metadata that optimize their search engine performance. He also uploads some images to photography sites such as Flickr, Fine Art America, and Photoshelter, as well as social media pages, court records show.
According to court filings, Oppenheimer uses an automated service to hunt the web for his images. When he finds one, his attorneys threaten to sue if the alleged infringers don’t settle. (It is not known how often Oppenheimer settles before filing a lawsuit.)
His lawsuits sometimes claim he’s suffered enormous losses as a result of the infringement. When Oppenheimer sued Daniel Kenney, the former athletic director at the University of North Carolina-Pembroke, in 2018 over photos of UNC-Asheville and the Blue Ridge Mountains that Kenney had posted on his personal blog, he alleged that he “has sustained actual damages in an amount not yet ascertained but which is believed to be in excess of $150,000.”
In court, however, Oppenheimer doesn’t have to prove his “actual damages.” Instead, he can pursue a fixed penalty, established by the Copyright Act, that ranges from $750 to $150,000 per infringement.
In addition, Oppenheimer frequently alleges violations of the Digital Millennium Copyright Act of 1998, which applies if a defendant removes or crops the copyright watermark from his photo. Each violation is worth up to $25,000. (Many defendants, including Shirley, have insisted there was no watermark on the photo they downloaded. While interviewing Oppenheimer during a 2021 deposition, a defense attorney downloaded a watermark-free picture from Oppenheimer’s Flickr page.)
His targets often face financial ruin. Copyright infringement attorney Dana LeJune, whose eponymous law firm has represented Oppenheimer in about 70 lawsuits, said that in his experience, about 90 percent of the people Oppenheimer sued or threatened settled “early.”
“If it’s a mom-and-pop and not a corporation, I typically settle those—you know, a one-off infringement—for, I don’t know, a low of $5,000 and a high of $25,000,” LeJune told The Assembly. (The largest settlement he’s received for a “one-photograph case” is about $95,000, he added. That time, a business owner swapped out Oppenheimer’s copyright watermark for his own logo, then printed the photo on business cards.)
But that’s started to change, LeJune said. Now, only three in five settle without a fuss. More defendants are mounting vigorous defenses—and settling for lower amounts.
LeJune blames Martin Reidinger, the chief judge of the U.S. District Court for the Western District of North Carolina, who he said “saddled” Oppenheimer with the label of “copyright troll.”
In early June, LeJune first emailed The Assembly to complain about Reidinger, a UNC School of Law grad appointed by President George W. Bush and elevated to chief judge in 2020. LeJune said Reidinger has shown “overt hostility [to] authors’ copyright claims” while presiding over Oppenheimer’s lawsuits.
LeJune especially chafed at a 2019 case that he believes encouraged infringers to fight back.
Oppenheimer sued the Griffins, a Florida couple who used his aerial photo of a snowy Beech Mountain in online listings for their vacation rental. The Griffins declined to defend themselves, and Oppenheimer told the court in a motion for default judgment that their infringement cost him $47,850—the $9,570 he said he would have charged them, multiplied by five due to the lost “scarcity” of his “incredibly rare” photography.
“Extreme effort, including study, physical and mental preparation, and professional techniques were applied in the creation of the work in order to capture the best possible imagery of the subject, while also maximizing safety,” Oppenheimer told the court. The shot required his pilot to slow the 1977 Grumman Cheetah AA-5 “close to the stall speed,” he said. “Reducing to such a slow speed at low altitude in such a mountainous terrain only adds to the danger.”
He asked Reidinger to award him $270,000.
Reidinger called a hearing on December 4, 2019, and his clerk told LeJune and Oppenheimer to be there. That was unusual for a case in which the defendants weren’t participating, LeJune said.
During the hearing, Reidinger questioned the photo’s value, pointing out that a Google Image search yields plenty of Beech Mountain pictures: “You can get on the internet, and this photograph is not at all unique.” He scoffed at the idea that anyone would have paid Oppenheimer $9,570 for it in the first place.
“It seemed to me that this number was pulled out of the air,” Reidinger said in the hearing, according to a transcript. Oppenheimer admitted during the hearing that no one had ever paid him that much for a photo.
Three weeks later, Reidinger awarded Oppenheimer $20,750—$2,500 for each of eight DMCA violations, $750 for copyright infringement, and no attorneys’ fees. Given the facts of the case, that was the bare minimum allowed by federal law. (Because the Griffins didn’t challenge Oppenheimer’s allegations, Reidinger mostly accepted them.)
In his ruling, Reidinger called the amount “generous” and scolded Oppenheimer for his litigiousness.
“The court observes that the plaintiff seeks a very high damages award relative to the harm caused by the defendants’ actions and that the plaintiff has filed several other copyright infringement lawsuits in this district within the last year alone,” Reidinger wrote, citing eight lawsuits filed in the previous 12 months.
“The plaintiff appears to be using the copyright laws as a source of revenue, rather than as redress for legitimate injury,” Reidinger added.
Oppenheimer being a “prolific plaintiff” is “completely irrelevant,” LeJune told The Assembly. His client is confronting the internet’s “right-click-and-steal” culture, he said. “If they don’t steal from us, we don’t sue.”
But Reidinger’s ruling changed the legal landscape, LeJune said.
“Every single claim that I make now for Oppenheimer, no matter where it is, they see that order and they say, ‘Well, this court found that $750 was adequate statutory damages, so that’s all we’re offering,’” he said. “Or they say, ‘We’re not offering anything because your client has been misusing copyright.’”
‘Heart of the Problem’
The copyright system wasn’t designed for the internet, said Glynn S. Lunney Jr., a Texas A&M University School of Law professor who specializes in copyright law.
Britain passed the first copyright statute in 1709, levying large fines on anyone who republished books without permission. The U.S. established similar protections in 1790. For the next two centuries, Lunney said, copyright laws mostly aimed to prevent corporations from stealing one another’s creations.
“In the analog world, the only person who could infringe your work was a competing publisher or printer or commercial entity,” Lunney said. And because infringers were usually large corporations, “we set up a very punitive set of remedies.”
Unlike most countries, the U.S. doesn’t necessarily tie damages in infringement lawsuits to copyright holders’ financial losses. Instead, the Copyright Act allows plaintiffs to seek “statutory damages” of between $750 and $30,000 per violation. In cases of “willful” infringement—the law doesn’t define the term—judges can increase the penalty to $150,000. For “innocent” infringement—meaning defendants have no reason to believe they are violating copyright—they can reduce damages to as low as $200, though this rarely happens.
Stacked together, even seemingly minor infringements can add up to staggering sums. Between 2005 and 2008, the music industry sued more than 18,000 people, many of whom had illegally downloaded or shared a handful of songs. Most settled for about $4,000, but a Minnesota jury ordered a man to pay Capitol Records more than $1.92 million for downloading 24 tracks.
When the lawsuits failed to stop file-sharing, the music industry abandoned its campaign. But others—especially independent filmmakers and pornographers—soon flooded federal courts with thousands of copyright claims and extracted millions of dollars in settlements.
“You’re much more likely to get big damages in the United States than in any other country on Earth,” said David Nimmer, a professor of practice at UCLA Law School and a leading expert on copyright.
Penalties crafted to punish avaricious corporations have instead been leveled at individuals whose infringement has little profit motive and who often lack the resources to defend themselves in court. But statutory damages haven’t changed—and critics say that’s allowed copyright trolls to flourish.
“Statutory damages are the engine that powers this business model,” said Stoltz, the Electronic Frontier Foundation director. “That is the heart of the problem.”
‘This Claim as a Test’
As a profession, photographers rank among the most prolific copyright litigants, Stoltz said. But most photographers never file a lawsuit.
“I don’t think photographers are out there trying to pillage and plunder,” said David Trust, CEO of the Professional Photographers of America. “They wouldn’t be a photographer if that was their goal.”
Photographers face a number of challenges in protecting their work, Trust said. Infringed photos must be registered with the Copyright Office to be eligible for statutory damages. That process takes eight months, on average, and few photographers bother. For most, expensive, time-consuming federal lawsuits aren’t feasible.
“Most photographers have infringements all over the place,” Trust said. “We basically had to tell our members, ‘Look, we know it’s difficult, we know it’s unfair, but you’ve got a tough choice to make. You can suck it up and do your job and try to feed your family, or you can go spend all your time pursuing these infringements.’”
Almost 20 years ago, the PPA and other artists’ groups began lobbying Congress to create the equivalent of a small claims court for copyright lawsuits. The idea had bipartisan support, but it wasn’t either party’s priority, so it languished for more than a decade.
Finally, in December 2020, North Carolina Sen. Thom Tillis, then chairman of the Senate’s intellectual property subcommittee, and other supporters tucked it into must-pass COVID legislation.
The Copyright Claims Board hears cases valued at up to $30,000. Access is cheap, lawyers aren’t required, and participation is voluntary; either party can decide to take the case to federal court. Importantly for photographers, creators can seek statutory damages for unregistered works.
“The recording industry filed [lawsuits],” Trust said. “Photographers aren’t suing people. We went the other route. That was, let’s create a forum that will bring people together and get them to work out their own problems.”
The three-member tribunal began reviewing claims in June 2022. It issued its first verdict in February—in the case of David Oppenheimer v. Douglas Prutton.
In July 2019, an Oppenheimer attorney sent Prutton, a California lawyer, a cease-and-desist letter about a photo of the Oakland federal courthouse on his website. The photo, which took up about one-eighth of the page called “Where We Work,” appeared alongside photos of three other Bay-area courthouses. In court documents, Prutton said his daughter uploaded the image while helping him improve his website, and he deleted it immediately after receiving Oppenheimer’s letter.
This document contains David Oppenheimer’s and Douglas Prutton’s statements to the Copyright Claims Board, as well as the board’s final determination. Oppenheimer’s Exhibits B (listing about a dozen pages of his copyright registrations) and E (a sample licensing contract that values the image at $2,775) have been omitted.
Oppenheimer’s attorney demanded $30,000. Prutton offered $200. Oppenheimer’s attorney again demanded $30,000. Prutton offered $500. Oppenheimer sued. The case was scheduled for trial in May 2022.
A few weeks before the trial, Prutton subpoenaed records about Oppenheimer’s income and legal settlements. The next day, Oppenheimer’s attorney suggested taking the case to the new board, Prutton wrote.
Oppenheimer asked the board for $30,000. In response, Prutton called Oppenheimer a “professional copyright troller”—citing, among others, Judge Reidinger—and asked the board to “do what it can to stop Mr. Oppenheimer, who is most likely using this claim as a test to see if he can efficiently make more money going through the board.”
On February 28, the board awarded Oppenheimer $1,000.
Critics had worried that the board’s low barriers to entry would open the floodgates to copyright trolls. But it hasn’t so far. To date, the board has issued only four final determinations, and Oppenheimer’s is the only case in which it adjudicated a financial award.
The Prutton decision “set a precedent, to the extent it applies,” said Jeremy Stipkala, a South Carolina intellectual property attorney. (He declined to comment directly on Oppenheimer, whom he’s litigated against.) “A standard, cut-and-dried case, damages of $1,000 to the plaintiff. That’s one way to control costs.”
As of July 14, Oppenheimer hasn’t taken another claim to the board. But he’s filed at least nine infringement lawsuits this year.
‘The Bad Guy’
As the top Republican on the Senate’s intellectual property subcommittee, Tillis has spearheaded several initiatives to modernize the copyright system. Most recently, he introduced the SMART Copyright Act of 2022, which would have required digital platforms to use content-monitoring software to prevent infringement; it never gained traction.
But Tillis’ proposals haven’t sought to reform statutory damages, which copyright experts have long criticized as excessive in the digital age. (Tillis’ office did not respond to The Assembly’s requests for comment.)
In 2016, a U.S. Department of Commerce task force recommended that Congress expand the criteria for “innocent” infringement—which can reduce penalties to $200—and require judges to consider the copyright holder’s actual losses and the infringement’s “overall harm” when calculating damages, among other reforms. But opposition from the entertainment industry has kept the law frozen in place, the EFF’s Stoltz said.
Proponents argue that without statutory damages, creators would have little incentive to enforce their copyrights. They also say it’s not always possible to determine how much an infringement harmed the copyright holder or enriched the infringer.
LeJune pointed to Oppenheimer’s photograph of Beech Mountain, which the Griffins used in their vacation rental listings: “How can the copyright owner ever prove what rentals were attributable to somebody seeing the aerial photograph and then going online and renting the place?”
“Part of what people are really saying when they say damages are difficult to calculate is, ‘It has no discernible effect on my sales,’” countered Lunney, the Texas A&M law professor.
Statutory damages are also intended to be a deterrent, but it’s not clear how effective they are—especially for photography. Many infringers don’t realize they’re breaking the law, and they’re unlikely to be caught.
The U.S. is “the top violator of photographic work in the world,” said Trust, the director of the Professional Photographers of America. “It’s billions of photographs a year that are just taken. Why is that? Because there’s nothing to stop us.”
Lunney suggested that the music industry might provide photographers with a path forward. When record labels couldn’t stop illegal downloads, they pivoted to iTunes and then streaming services such as Spotify. “There’s not much reason to engage in file-sharing for music anymore,” he said.
Trust said he’s been approached about creating a similar model for photography, but he doesn’t think it’s workable. “That’s not the way the photographic market works,” he said. “I can’t negotiate for all of our members and determine what their prices will be.”
The disconnect, he said, is that people feel entitled to use photographers’ work for free. “Somehow, photographers sometimes end up looking like the bad guy. I don’t get that.”
Amid this impasse, experts say more federal judges—not just Reidinger—are eyeing high-volume copyright plaintiffs skeptically and limiting verdicts to three to five times the copyright holder’s actual losses.
That dynamic might embolden alleged infringers. (As of July 1, 12 of the 31 lawsuits Oppenheimer filed in 2022 haven’t been settled.) But judges have a lot of discretion, and outcomes vary. Ultimately, most defendants have no choice but to pay, Stipkala says.
“It’s kind of a mess,” he said. “Your damages are going to be $3,000—or $150,000. It’s a very scary moment. So then you call up your friendly neighborhood copyright attorney and ask, ‘How much does it cost to defend this?’ And the friendly neighborhood copyright attorney says it’s going to cost tens of thousands, even hundreds of thousands of dollars to defend. Who the heck has that?”
‘He Hit Everybody’
Four months after he settled with Liz Shirley, Oppenheimer sued her employer, Carolina Sun Properties LLC, over the same photo of Wild Dunes Resort, which it had posted on its website. Carolina Sun owner Sean Leighton said the company’s insurer settled in February 2018 for “$17,000 or some ridiculous number.”
Ben Schuyler, Carolina Sun’s managing broker, had been through it before. Oppenheimer had sued his previous employer in 2014, as well as two other real estate firms in the Charleston area. Oppenheimer went on to sue several more, court records show.
“He hit everybody,” Leighton said. “He was very good at it. We learned a lesson. People became a lot more cautious.”
They said Carolina Sun and other Charleston real estate agencies have become fastidious about obtaining permission to use photos. That’s a point for the argument that statutory damages deter infringement.
But Leighton and Schuyler don’t believe Oppenheimer is doing a public service.
“It was clearly a business he was running for the purpose of screwing people,” Schuyler said.
Jeffrey Billman reports on politics and the law for The Assembly. He is the former editor-in-chief of INDY Week in Durham. Email him at email@example.com.