A California jury has awarded a photographer reportedly the “largest maximum statutory damages verdict for photography infringement in U.S. history,” according to the photographer’s lawyer.
The jury awarded $150,000 in statutory damages for each of the 43 infringed images, for a total of $6.3 million.
As Architectural Photography Almanac notes,
There are three categories of infringement: innocent, non-willful, and willful, and each category can be awarded a different range of statutory damages depending on the degree of severity that a judge or jury perceives. The penalty for a willful infringement of a timely-registered image ranges from $30,000 to $150,000 each. Clearly, the jury intended to send a very clear message with this verdict.
Although works of authorship (including photos) are automatically protected by copyright law as soon as they are “fixed in a tangible medium of expression” (for example, saved in the memory of a camera), works must be registered with the US Copyright Office before the owner can sue to enforce the copyright.
Also, statutory damages are only available under 17 U.S. Code § 412 for infringement of
copyright of a work that has been preregistered under section 408(f) before the commencement of the infringement and that has an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement…
If statutory damages aren’t available, then the owner of the work can only recover “actual” damages. “Actual” damages are supposed to be based on the fair market value of a license for the infringed work, which may be both difficult to prove and far less than statutory damages.
Scott Hargis, an architectural photographer, sued Pacifica Senior Living Management LLC in September 2022 for infringement of 43 of his photos that Pacifica used to advertise and market its senior living facilities.
Pacifica is the thirteenth largest care provider in the United States.
According to the complaint, Hargis’ photographs have appeared in numerous publications including This Old House, Luxe Magazine, Dwell, The New York Times, The Wall Street Journal, Oakland Magazine, San Francisco Magazine, Diablo Magazine, Better Homes & Gardens, The San Francisco Chronicle, and The Los Angeles Times.
His photos at issue in the lawsuit depict the Fresno, Sun City, Encinitas, Chula Vista, Rancho Penasquitos, Burlingame and Sterling locations of the Pacifica communities. He registered those photos with the US Copyright Office in 2019.
The complaint alleged that Pacifica used the photos “to entice prospective senior living residents and their families to choose Pacifica over competitor senior living communities.”
According to the complaint,
Pacifica’s acts of infringement are willful because, inter alia, it is a sophisticated for-profit business with full knowledge of the strictures of federal copyright law and the basic requirements for licensing copyrighted content for commercial exploitation. In fact, and among other things, as the owner of various copyrights and trademarks, Pacifica actively polices and vigorously protects its own intellectual property rights from infringement, as demonstrated by the ‘©’ copyright notice featured at the bottom of its website.
Also, the complaint alleges that Pacifica kept the photos on its website even after repeated notice of infringement. The photos allegedly remained even after Pacifica said that it had removed them.
ImageRights International, Inc. worked with the plaintiff’s law firm on the case. The company uses artificial intelligence (AI) technology to search the internet for infringing content. According to the company’s website, it uses “advanced mathematical algorithms to calculate a unique fingerprint” for each of its clients’ images.
It’s not clear from the record how the images ended up on the Pacifica website or why the company was so slow to remove them.
The case is an important reminder of three things:
- Copyright registration can convey significant financial benefits to creators.
- Companies are very unwise to use images or other content without a copyright license, and even more unwise if they fail to remove such content when properly challenged by copyright owners.
- AI technology is making it much harder for infringers to “get away with it.”
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