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Tuesday, February 8, 2011

It's Not A Winning Ticket

Someone used my picture without permission! What do I win?


Around the time he discovered his images published in Cycle World, Latimer registered the copyright for the images from the overnight shoot. However, the images were registered too late to take advantage of the three-month grace period following first publication.

Eventually, Latimer found a law firm willing to pursue the case, and they sued Kawasaki, Hachette, Roaring Toyz and the Roaring Toyz owner for copyright infringement. Although not entitled to recover attorney’s fees or statutory damages, Latimer sought an award of each defendant’s profits.
 
Realistic expectations would have opened the door to an early settlement, which would have maximized returns by obtaining fair value for the use of the images while avoiding protracted and expensive litigation.
 
Copyright Damages In A Nutshell
There are three types of damages commonly associated with copyright infringement cases: statutory damages, actual damages and infringer’s profits.

Statutory damages, available only in instances where a registration was obtained prior to the commencement of infringement (or if infringement commences after first publication, provided the registration is obtained within three months of first publication), are generally awarded when no actual damages are proven, or when actual damages and profits are difficult or impossible to ascertain. Courts have wide discretion to award statutory damages, restrained only by the limits set by statute: not less than $750 or more than $30,000 per work infringed, and courts have discretion to increase statutory damage awards up to $150,000 if the court finds that the infringement was willful. However, more often than not, courts will attempt to award a figure that has some connection to reality. Since Latimer didn’t timely register his copyrights, he wasn’t entitled to an award of statutory damages.

Actual damages can be measured a number of ways, but where the copyright owner and infringer don’t occupy the same market—as is commonly the case with photographs—the preferred approach is to award a reasonable royalty: the amount that a hypothetical licensor and honest licensee would have negotiated at arm’s length for the actual usage at issue in the case. Thus, if you find a photograph used without consent in a magazine, the reasonable royalty might be determined using industry-standard tools like FotoQuote or publications such as Jim Pickerell’s Negotiating Stock Photo Prices. It’s also important to realize that most courts won’t permit the use of multipliers when determining a reasonable royalty (as one court explained, you can’t determine the actual value of the rights involved by adding a multiplier).

Finally, Copyright Law authorizes courts to award a defendant’s profits provided those profits are attributable to the infringement and provided those aren’t taken into account when computing actual damages. While the attribution requirement can be easy to satisfy in cases where someone is selling copies of a copyrighted work—e.g., copies of a photographic print—it can be exceedingly difficult and even impossible to satisfy in cases where a copyrighted work is used in advertising, which promotes some unrelated product or service. Where the copyrighted work is used to indirectly generate profits, a claim of indirect profits is only viable where the copyright owner can establish some nexus between the infringing conduct and the defendant’s profits. Even in jurisdictions more favorable to copyright owners, the copyright owner still must establish something more than a purely speculative connection between infringement and profits.

 

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