Lately, there has been a lot of discussion in the legal community about an uptick in copyright infringement lawsuits involving photographs. Several factors have led to this.
First and foremost, after decades of being told to pound sand by companies who have used their photos without permission, credit or compensation, photographers have become extremely frustrated with the inability to enforce their intellectual property rights.
Second, technological advancements over the past few years have permitted photographers to easily find copyright and licensing infringements through reverse image searches and other services.
Finally, a growing number of attorneys have developed business models built upon accepting low-value infringement claims on a contingent fee basis. In these cases the photographer is not required to pay upfront — and usually very high — retainer fees but, rather, agrees to pay 33 percent to 50 percent of any award, either by court decision or through settlement, plus various costs incurred by the attorney as part of the litigation.
For photographers considering engaging a lawyer to pursue infringements, keep a few things in mind:
1) Because copyright is part of federal law, the only place a copyright infringement claim currently can be initiated is in federal court, a somewhat complicated and costly undertaking.
2) If you have registered your image with the U.S. Copyright Office before the infringement or within three months of the date it was first published, you may be eligible for statutory damages and attorney’s fees. Statutory damages are a court award of money that does not require the photographer to prove an exact amount of damages — often difficult to determine — incurred because of the infringement.
Photographers and lawyers favor statutory damages because they can be as high as $30,000 if the infringement was not “willful” and $150,000 if it was. This can be a great bargaining chip when attempting to negotiate a settlement. But also keep in mind that statutory damages range from the low end at $750. That amount can even be lowered to $200 if the infringement is determined to be “innocent.”
Courts and juries have been known to award the highest possible statutory damages but have also granted awards on the low end, even after years of litigation. Therefore, keep your expectations in check. Further, statutory damages are awarded per image infringed, regardless of how many times it was misappropriated.
3) If you have not registered your image with the U.S. Copyright Office before the infringement or within the three-month look-back period, you will not be eligible for statutory damages or attorney’s fees. Instead, if you prevail, the court may award you “actual damages and profits,” which are calculated by examining evidence of your previous licensing history and other factors such as market value and any profits by the infringer that can be attributed to the infringement. Actual damages can be very high, but they must be proved and can also be very low.
4) If you haven’t registered your work before the infringement, and the value of the infringement is low, it may be best to seek a settlement before starting a lawsuit. Settlements are often agreed to when an infringer recognizes it will cost less to settle the matter early versus defending the case in court. But sometimes a defendant is willing to fully litigate the case because he or she thinks there was no infringement, or in an attempt to outspend you. Make sure you understand whether your agreement with your attorney includes filing a lawsuit if necessary.
5) If you win, you still must collect. Therefore, you may not want to waste a lot of time pursuing a claim against a person or company that does not have much money. For example, a teenage blogger might not make a good defendant. Neither does a company with few assets.
6) While you may be aware of specific infringements, the image may have been used in several different ways that you are unaware of, and more than one of your images may have been infringed. For this reason, the discovery process in which you can demand certain information from a defendant can be an important part of a lawsuit.
8) Copyright infringement has a three-year statute of limitations. An image published more than three years ago may be beyond the time in which to bring a claim even if the image is still online.
9) Not every issue in copyright infringement is well-settled by courts. For example, court rulings on what constitutes a defense of “fair use” have been shifting, with several opinions favoring creators. But there have also been decisions that granted the fair-use defense to artists who exploited photographs without permission. Make sure you take fair use into consideration when deciding how to proceed.
10) Attorney’s fees aren’t the only way that a court might impose costs on a plaintiff when the court thinks the case lacks merit. Recently, a court ordered a photographer to post a bond before proceeding with a copyright infringement lawsuit over a photo. The judge wrote that while the case “may have merit,” the defendant had offered evidence that the image had been used with permission of the photographer’s client, and the case “has been irresponsibly litigated.”
There is no question that photographers need to be properly compensated when their photos are used without permission. The stakes in a federal lawsuit can be high — even when a case is taken on a contingency fee basis.
This is one reason why the NPPA has been urging support for a copyright small-claims system. Until there is a better way to do it, we hope that you will find a path that works for you and that you will remain fully informed of the risks and benefits of the available options.
You can write Mickey Osterreicher at [email protected] and Alicia Calzada at [email protected]
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