While wrapping up and doing the final edits for our next book we came across several myths and mythconceptions which some photographers inexplicably hold dear. Here are some of these misguided beliefs which we have followed with a “straightener”.
MYTH: An award of statutory damages for copyright infringement must have some relationship to the actual damages sustained by the photographer.
FACT: Dead wrong. First see our article, The Math of Infringement, which demonstrates how courts compute such awards in real life. Your actual damages of say, a lost licensing fee could be $500 but a statutory award can be $30,000+ if the infringement is judged “willful”.
MYTH: The usual licensing fee for the infringed photo is the measure of damages in an infringement case.
FACT: Maybe, sometimes, it depends on the case but very rarely in statutory damages situations is this true. Here is a recent example with the facts changed ever so slightly:
A Copyright registered, generic lifestyle photo of 25 year old male is ripped off by an organization/company like Planned Parenthood, Trojan Condoms or Big Pharma which manufactures birth control pills. Offending use is in print ads and/or packaging.
Photographer is a part time Pentecostal Minister/Catholic Priest/Deacon etc. who under no circumstances would have licensed the image for this purpose for many reasons. The subject in the photo is a seminary student who signed a model release permitting “editorial use only”. Note that licensing the image could get the photographer sued by the model.
Infringer’s lawyer says to judge, “Yes we used it because we were on deadline and an intern got it for us – our bad. But photographer licensed this picture only one time in the past for a fee of $100 to the local Podunk News, which used the image for an article entitled “Increase in Hipsters Moving to Podunk from Brooklyn. We offered photographer three times $100 or $300 to settle and we think that is fair”. The photographer’s lawyer rolled his eyes until he heard the judge ask the infringer’s attorney:
“Did you really think that I would buy that kind of ‘logic? Really??”
The court didn’t buy it and neither should you.
Statutory damages, which can bring $30,000 – $150,000 plus attorneys fees, are available to photographers who register in a timely fashion for just these type situations. The prior license fee to the local Podunk News, for a permitted and utterly dissimilar use is irrelevant under these circumstances. Doesn’t matter what the photographer previously licensed it for. Apples and oranges. The benefit of registration and statutory damages is that the court may punish the infringer based on the unique circumstances of every case.
MYTH: If the image has no licensing history at all the amount of damages recoverable will be minimal.
FACT: Photographer does a photo shoot of Elvis in the ’50s or Dylan in the early ’70s. Assume 100 images are created. Photographer elects to keep say 25 images “in the draw” and “off the market” with the intention of using them X years down the road when they will likely be more valuable. Sometimes the photographer simply forgot about the images. Here’s a not uncommon scenario: Photographer has assignment to shoot some unknown, up and coming musician/rock group/actor and the story is killed by the publication for some reason. Up and comer becomes iconic superstar in the following years. Infringer finds copies of such unpublished images and publishes the never before seen images without the knowledge or consent of photographer. The fact that the image had “no licensing history” is utterly irrelevant to the issue of damages. Assume that Rolling Stone magazine or The Hard Rock hotel chain would have paid $100,000 to use these “lost” pix. Now that business opportunity, at that price, is lost forever owing to the use by the infringer. The value of the images is actually increased by the fact that they had no licensing history, as they had never before been seen by the public.
MYTH: If a web designer sells the images to its client you must sue the web designer and the advertiser is off the hook.
FACT: If a 17-year-old web designer creates and is paid to build a site for a local physician (or ie. a construction company), the photographer can sue the doctor, (or construction company) and/or web designer. Depending on the facts of each case, the client of the web designer may or may not have the ability to recover some money from the designer. The photographer’s claim is essentially unaffected in most cases. The end user is responsible for what they promote and publish. How it got there may determine whether the end user has a claim against its third party “supplier”.
MYTH: Licensing fees for similar images is a relevant measure of damages.
FACT: Sometimes this myth has some relevancy but usually not. If you have the definitive, iconic image of a celebrity say Bo Jackson which you have never provided to a stock agency then other pictures of Bo Jackson that might be available from Getty or Corbis for $250 are likely not comparable. Typically infringers steal images that they cannot get from legitimate sources. We then pose the question, “If you could have licensed another comparable image at $250 why did you elect to steal the one you could not license“? Such selection of a “non-available” image helps to prove willful infringement
Bottom line A. register every image you shoot, always all of the time and B. consult with an attorney conversant in copyright law to determine what the nature and extent of your claim could be if litigated and then decide with counsel what course of action to take to get your money. Do not take advice on copyright cases from non-lawyers who have no legal training and have no experience in real courtrooms.