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Tuesday, October 18, 2011

Stay On Track

Before filing a lawsuit, consider the possible ramifications and what victory or loss will accomplish


The judge in Diodato’s case noted, “Although the idea of using a woman sitting on a toilet to showcase stylish shoes and other fashion accessories is a clever one, it is an idea that has been used often in popular culture.” As a result, elements commonly included in other related images were found to be unprotectable under the scènes à faire doctrine, a doctrine that precludes people from claiming exclusive rights to any elements that would be considered standard or stock in the treatment of a given idea. With regard to product photography, at least one court has explained that application of the scènes à faire doctrine is warranted “because of the narrow range of artistic expression available in the context of a commercial product shot.” Ultimately, Diodato’s claim failed because most of the elements of his image were deemed to be unprotectable ideas under the scènes à faire doctrine.

Cases like LaChapelle’s aren’t without risks, and may potentially have long-term impact. If successful, LaChapelle’s claim may expand the scope of protection for images; if unsuccessful, the resulting opinion may limit photographers’ rights. Indeed, the defendants have presented the court with authority suggesting that “[p]rotectable elements [of photographs] include ‘posing the subjects, lighting, angle and evoking certain desired expressions,’ as well as the selection of the film and camera.” If the court adopts this view, it may help limit photographers’ rights.

Given the risk associated with cases like LaChapelle’s, the business motivation behind the suit may not be readily apparent. In light of LaChapelle’s “strictly business” statement, it’s fair to ask how the suit hopes to advance LaChapelle’s business. In this regard, marketing considerations almost certainly factor into the equation. As New York University professor Jason King has suggested, “LaChapelle may just be reminding the world that his pictures exist, and that he came up with them first.” Thus, the publicity LaChapelle receives from the case may help justify the expense of the case.

No Pot Of Gold At The End Of The Rainbow

Cases like LaChapelle’s are few and far between. Most copyright infringement cases don’t involve million-dollar claims, deep-pocket defendants, celebrities and the concomitant attention and national media coverage. From a business standpoint, most photographers may find it difficult to justify the expense associated with the average claim of infringement, much less a high-profile case like this one.

Portland, Oregon-based photographer Michael Schmitt discovered that there was no pot of gold at the end of the rainbow when pursuing a claim of copyright infringement. One of Schmitt’s clients, InSport, which had paid for and received a limited license to use his images, was acquired by a successor company. However, InSport’s successor continued using Schmitt’s images after expiration of the license.

Schmitt promptly notified the company that it was infringing his copyrights and sent a proposed invoice, which, if paid, would have authorized the continued use of the images. The company didn’t pay the invoice, and instead, ceased using the images in late January 2009. Schmitt sued for copyright infringement.

Even though the company didn’t defend itself in the action, the court found that there was no question that the company had infringed Schmitt’s copyrights. With there being no question regarding infringement, the key question became the appropriate amount of damages for the four images used. Schmitt, who timely registered the copyrights for his images, requested statutory damages of $10,000 to $15,000 per image, which included enhanced damages for willful infringement. However, the court considered Schmitt’s prior licensing of the images, as well as communications that Schmitt had sent when trying to be generous but nonetheless attempting to collect something for the use of his images. The court also considered the stock pricing for images and pricing information from fotoQuote. Taking each of these items into consideration, the court awarded Schmitt $490 per image for the roughly two and a half months of usage after the license expired, and multiplied the figure by five to factor in willful infringement. Ultimately, the court awarded total damages of $9,800.

 

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