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.