AUGUST, GA. (Dec. 19, 2017) The National Press Photographers Association and three other visual arts associations filed a joint amicus brief in the Ninth Circuit Court of Appeals in the case of VHT v. Zillow, a lawsuit involving Zillow, Inc.’s unauthorized use of photographs owned by VHT, a real estate photography company.
In VHT’s copyright infringement lawsuit against Zillow, the jury awarded VHT, among other damages, statutory damages in the amount of $1,500 for each of 2,700 images that the jury found were willfully infringed. On appeal, Zillow is arguing that the district court erred in permitting statutory damages for each infringed image and that the court should only have permitted a single award for all of the infringements.
In an infringement lawsuit, the copyright owner can be awarded statutory damages for each work infringed, if the work is timely registered. The relevant question in the Zillow case is what a court considers a “work.” The district court held that each infringed image was a separate work and therefore eligible for a separate award of statutory damages. Zillow wants the appeals court to hold that all of the images that VHT produced, which were registered under a group registration option for databases, constitute one work.
The amicus brief argues the test applied by the lower court, and previously adopted by the Ninth Circuit, is correct. That test hinges on whether a work has independent economic value. The amicus brief further explained the background of various group registration procedures designed by the U.S. Copyright Office, with input from the photo associations, to ease the administrative burden of registration.
The visual arts associations argued that the form of registration should have no impact on whether the independent works should be considered a single work or multiple works, and therefore eligible for a single or multiple statutory damages. The Ninth Circuit’s ruling could have a major impact on the ability of photographers to recover appropriate damages from infringers who use more than one of their photographs without permission, particularly photographers in Ninth’s Circuit’s jurisdiction which includes California, Oregon, Washington state, Idaho, Montana, Nevada, Arizona Alaska and Hawaii.
The brief, joined by the Digital Media Licensing Association, the America Society of Media Photographers, and the Graphic Artists Guild was filed by NPPA’s Deputy General Counsel, Alicia Calzada, with significant support from DMLA’s attorneys Nancy Wolff and Marissa Lewis. An amicus brief on another issue in the case—secondary liability—was filed by the Copyright Alliance, of which NPPA is a member.
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