Photographers get all excited upon learning that statutory damages for copyright infringements can be as high as $150,000. However, while some copyright infringement lawsuits involving photographs do get news-worthy awards, this is the exception, not the norm, especially when it comes to Internet-based infringements. Statutory damage awards are influenced by actual damages, and let’s face it, the typical photographer cannot document substantial actual damages, which is why statutory damages exist in the first place.

District Court judges are also catching on to the flood of “something-for-nothing” lawsuits stemming from photograph copyright infringements on the Internet. In a recent case, Jonathan Otto v. Hearst Communications, Inc., Otto was awarded only $750. The judge for the Southern District of New York was purposely making a statement against absurd statutory damage claims for copyright infringements involving no real actual damages. The court determined a reasonable licensing fee was $100 and that five times this fee was a sufficient fine, though the amount was raised to $750 to meet the minimum required statutory damages.

“An award [of $750] is in accordance with the trend in this Circuit to award a prevailing copyright infringement plaintiff statutory damages in an amount that is a single-digit multiple of a reasonable licensing fee.”

My first copyright lawsuit just came to a conclusion, so I can now report some real-world statutory damage statistics. In February 2019, I discovered my photo on the website of a Florida boat rental company that was using it for general promotional purposes, not to advertise a particular product or service. It was simply a photo relevant to the company’s business and was used for no other reason than to make the website look nice. The company also removed the copyright notice from the photo, which if done intentionally warrants a separate statutory damage award in addition to the standard damages. The award can be anywhere from $2,500 to $25,000.

I sent a demand letter to the company asking for $495 to settle the dispute without further legal action.  I got no response, so I turned the case over to my attorney. Attorneys always send their own demand letters regardless of what their clients might have done, and the boat company ignored this letter as well. My attorney then filed a lawsuit in June 2019. Lawsuits in these types of cases—where the infringer has no defense and does not want his day in court to prove his innocence—are not filed with the intention of going to trial, but are instead designed to prompt an infringer to finally negotiate a settlement. In nearly all cases, this is one of two outcomes, with the other being that the infringer ignores the lawsuit. In my case, the suit was ignored, and in August my attorney filed for a default judgement. This gives the defendant one more chance to come out of the woodwork and negotiate, but this didn’t happen either.

The language of the motion for Final Judgment of Default was a work of art. According to the document, I was the best thing since Ansel Adams; I had to walk around the world ten times—uphill all the way—to get the photo; and I risked my life the entire time. If this case actually went to court and I was asked about some of this stuff, I’d honestly have to say, “I have no idea where that came from.” That’s how certain attorneys are that these cases won’t see the light of day in a courtroom. Anyway, my attorney somehow managed to justify that I should receive $37,000 plus  attorney fees and court costs. I found it hard to believe that any judge would actually believe such nonsense, and as it turns out, they don’t.

I was awarded $2,250, and my attorney got $2,165 plus $453.70 in court costs. Since copyright law is civil law, the judgment is nothing more than a piece of paper stating that the boat company owes me money—it is up to me to collect. My attorney filed a lien on the company’s property, so one day I might get a check in the mail…provided the company wasn’t selling its property because it went bankrupt. I don’t have my hopes up.

What is interesting about the default judgment is that my claim that the boat company removed the copyright notice from my photo—which was documented with evidence—was given no credence. This is evident from fact that the $2,250 award is less than the minimum award of $2,500 for the intentional removal of copyright management information. In court, I may have been able to prove intent (maybe not), but since no trial was held, the claim was ignored despite the infringer failing to present a defense. I got more than Jonathan Otto’s $750 because I did have some legitimate travel expenses that I paid out of my own pocket, but certainly nothing to justify $37,000.

Comments(4)

    • lynn Henderson

    • 1 year ago

    I’m confused; this story is not encouraging to put a lot of work into the effort. Did I miss something?

      • Mark LaMontagne

      • 1 year ago

      I didn’t put any work into this case, my attorney did. Every six months I do a search for my photos, and while I find hundreds of infringements, only about 50 or so are pursuable. The rest are done by foreigners, are non-commercial, are not worth the hassle, or are hosted on websites registered in countries that don’t care about US copyright laws. In the last three attempts, I’ve collected on 73% of my copyright infringement cases on my own (about $40,000). That still leaves plenty of infringements that I can’t collect on. I turn these over to my attorney who works on contingency–I don’t pay anything unless he collects, and even then it’s just a fee split (60-40, with me getting the 60%). Once I turn a case over to him, I really don’t care about the outcome. If the attorney gets me a buck, that’s a buck more than I got on my own. So all the work is done by him, not me. I might have spent 1 hour on the case, and had the infringer paid me, I would have made $495. As it stands now, one day I might get $2,200, who knows? Regardless, I’m no worse off now than I was when the infringer blew me off.

      The main point of the article is that court-awarded judgments for typical “my photo is on your website” infringements are not as large as photographers think. I read forums where photographers believe they will get huge awards if only they can find an attorney to take their case. They don’t understand that they can’t find an attorney because the awards for most Internet-based photograph copyright infringements are not that high. There are a select few IP attorneys who deal with these types of cases, but they handle thousands of them. Most IP attorneys are looking for the “Led Zeppelin stole my guitar riff” type cases–few cases, but big rewards.

      In truth, if this infringer had settled with the attorney before a lawsuit was filed, the amount most likely would have been somewhere between $2,000 and $4,000, not much less that the lawsuit garnered. I suppose the moral to the story is that unless you find a really valuable case, don’t bother with lawsuits unless you can find a contingency-fee IP attorney, because if you have to pay legal fees yourself, they may well end up more than the court-awarded fee, not to mention that you must collect on the judgment, which is not guaranteed.

    • ET Russell

    • 1 year ago

    Statutory damages are NOT based on actual damages. That’s their whole point. A copyright owner who qualifies may elect statutory damages as an alternative to actual damages.

      • Mark LaMontagne

      • 1 year ago

      You are correct, but let me qualify my statement (I updated my blog post to reflect this). Actual damages are one factor in determining statutory damages (intent is another factor). If you can show substantial actual damages–even estimates–statutory damages are likely to be higher. This point was clearly made by the district court judge in the Otto Case–no proof of any sort of actual damages may get you the minimum statutory damage award or something based on a multiplier of a typical licensing fee. Attorneys will always play up actual damages despite asking for statutory damages. Actual damages were part of how my attorney attempted to justify the $37,000 I should get in a default judgement. In my case, actual damages were estimated to be $7,000, to which a customary multiplication factor was applied. Intent was also figure into the final default judgment request, for the infringer had removed my copyright notification.

      When using actual damages to justify statutory damages, attorneys make their clients out to be the next Ansel Adams or Annie Leibovitz in an attempt to justify large licensing fees; that their equipment cost $10,000; that they had to walk five hundred miles—uphill both ways—to get the shot. Other factors include the length of time the photo was used, money lost, how much money the defendant saved, possible profits reaped by use of the photo, and the defendant’s financial situation. If the defendant is guilty of previous copyright infringements, it is important to make the damages large enough to deter another violation. These are the types of actual damages a judge or jury considers when determining statutory damages.

      The law is not set up to be a financial jackpot for every photographer who catches someone using one of his photos without permission. If no malice is involved, and if a photographer did nothing more than step out the front door of his house to take a nice sunset photo with his cell phone camera, he isn’t going to get maximum statutory damages; the award will most likely lean towards the minimum. In Kent v. Revere, the court awarded only $750 in damages because the plaintiff could not demonstrate any personal losses beyond speculation.

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