Success in pursuing damages for a photo used without permission

Discussion in 'Business of Photography' started by christopher_boffoli|1, Aug 13, 2009.

  1. I just wanted to pass along word of my victory today in King County District Court here in Seattle. The case was against a commercial real estate agent who downloaded one of my images off the Web and used it in one of her listings. I'm delighted that the judge in this case respected the value of intellectual property and issued a judgment for the complete damages I was pursuing plus court costs.

    I originally shot the image last November. It was published by an online news agency here in Seattle along with an article about a restaurant that was due to close. While doing some research in early May of this year I stumbled upon the image on the Commercial Brokers Association (CBA) website where the closed restaurant was listed for sale. Apparently the listing agent saw my photo on the news story and decided she was going to use it. But she never asked my permission. What made the matter worse is that when I found the image it was being used with the CBA copyright flag over it as if the image belonged to them. Not good.

    I've had my work on the Internet long enough to know that these things happen because photos are so easy to download. I maybe find 5-6 images a year that have been downloaded and re-hosted. Normally it is a neighborhood blogger or someone who just liked the image and wanted to post it on their site. These situations are almost always remedied with a polite but firm request to take down the image. And the people who do this usually apologize and comply. But this situation was different mostly because my image was being used in a commercial capacity without authorization. And what really exacerbated the situation is that the listing agent ignored my attempts to contact her about it. I guess she just thought ignoring me would make the situation better. It didn't.

    I was able to contact the webmaster at the CBA and they took the image down and apologized. (The CBA is a third party website that hosts the real estate listings for this agent who works for a separate company). The CBA told me that the listing agent had submitted the picture to them and had certified that she owned the image and had permission to use it. It was one thing for the agent to download my image without permission from the news site where it was published. But the worse violation was when she shared the image with a third party, representing it as her own. This was a willful violation of US Copyright law.

    When the listing agent refused to take responsibility I decided to file a claim in court. As I was only seeking $1,000 in damages, it was possible to do this through small claims. I did not have to get my lawyer involved and the filing costs were only $35. I went into court loaded for bear. I had everything documented, including a print of the original image, the certificate of copyright registration (filed after I found the image being used but the effective copyright was the date of publication), print outs of my image on the real estate listing, copies of my attempts to contact the listing agent, and materials to support my valuation of the image. But I barely even got a chance to present my case. The judge was very cut and dry. Once she swore us in she asked me a few simple questions: Was the image mine? Did I have proof of copyright? Where was it published? and Was the image published with a caption indicating that it was mine. When I answered her she had all she needed. She turned to the defendant and asked her for her defense. The real estate agent said simply that her assistant uploaded the image and they had no idea where the image came from...that they get images from all sorts of different places, mostly for free, and as such shouldn't be responsible. But fortunately for me she did not deny that the image was mine and that they had used it, for up to six months, to advertise a six-figure commercial real estate listing.

    The broker's excuse was as ridiculous as a thief being caught red-handed with stolen merchandise but saying to the police officer "but I don't new where these items came from so how can I be responsible for them?"
    The judge spent a minute more trying to get the real estate agent to explain why she thought she wasn't responsible for having to pay me for the use of my image. Finally she admonished her by saying: "Just because something is on the web doesn't make it free." The rest of the conversation involved the judge establishing the value of my image. She thought $1,000 sounded like a lot. But I presented her with invoices from my records for similar stock sales to graphic design firms here in Seattle. I also had an estimate from Getty Images for a use of similar purpose and duration. So the judge granted a judgment for my claim for $1,000 plus court costs.
    I wanted to spread the word of this experience to other togs who might find themselves in similar circumstances. My first bit of advice would to first be generous and flexible when people are polite enough to ask for your permission to use an image. And if someone does take your image without asking, give them the benefit of the doubt and politely ask them to remove it from where it has been re-hosted. But as a last resort, if a commercial interest takes your image without permission for their own profit, don't hesitate to hold them responsible, especially when they act unprofessionally and can't even give you the courtesy of a reply.

    Even though Copyright law is enforced by the Federal courts, my experience demonstrates that it is possible to seek damages in a lower court without a lawyer and with a minimum of expense. It is worth noting though that in my research for this case I discovered a US District Court case from 2008 in Florida with almost the same merits of my case. A real estate company took a bunch of images from a professional photographer and provided them to a third party without permission or payment. In that case a Federal judge ruled that the real estate company had to pay damages that were equal to a percentage of the sale price of the properties involved, on top of statutory damages. In that instance the photographer was awarded a judgment of more than $12 million.
    That case can be found here: http://www.photoattorney.com/2008/06/photographer-gets-12-million-verdict.html

    In closing, let me say I hope this never happens to you. But if it does, be a strong advocate for yourself and your art. You're the one who has invested heaps of time into honing your craft. You're the one who foots the bills for the expensive equipment. You're the one who is out in the cold and dark getting eaten my insects in pursuit of great images. Give 'em hell!
     
  2. Congratulations! Well done, mate! Also appreciate your well-presented narrative of your case. So, start shooting more expensive properties, and maybe you'll hit it big like the Florida case! Seriously though, nice work, and positive precedent for photographers' copyrights. Cheers!
     
  3. Well done, and thanks for sharing this....
     
  4. mbh

    mbh

    Excellent posting. I found it both inspiring and informative. It's so easy to 'pluck' a photograph from the Internet without authorization, I'm glad to know that courts will enforce the law. It's also a fair warning to anyone tempted to appropriate another person's work.

    A minor caveat on the big Florida win, the two defendants slapped with the $12 million verdict are likely judgment proof. Turnkey Properties, Inc., is out of business and Michael Friend claims to be unemployed and on food stamps. However, the photographer is still engaged in litigation with other defendants and hopefully will ultimately collect her due whether from the defaulting defendants or the various parties with whom she is still involved in litigation.

    Personally, I consider litigation the devil. It is emotionally draining, time consuming, and usually fraught with pain. But as you found, it can be worth it in the end.

    Again, congratulations!
     
  5. Right Freakin' ON ! ! !
     
  6. Congrats! And thanks for sharing your story. This is good insight and somewhat reassuring to me given that I've recently been informed that a local business is interested to use one of my images on their web site. I've not yet gotten all the details of their request because they have not yet responded to my request for additional information. It's good to know that I'd likely have satisfactory legal recourse if they attempt to simply use it without contractual permissions.
     
  7. Good for you! Thanks for sharing this. You were in the right, prepared and the system worked as it should have.
     
  8. .....now if only EVERY photographer who has work 'stolen' was as persistent and prepared as you. Well done sir!
     
  9. Good job, nice to hear it worked out.
     
  10. Thanks for sharing the story. Congrats on the win. Most copyright violators figure they won't be caught.
    I have found my images used in commercial ventures without permission many, many times . I've outlined some of the cases on my photographers copyright notice page in the Hall of Shame section.
    People have even copied and republished portions of my copyright notice page. How ironic is that?
    At least one person's life was turned upside down after they used photo.net founder Phil Greenspun's images without permission. (scroll down to the comments section)
     
  11. Even though Copyright law is enforced by the Federal courts, my experience demonstrates that it is possible to seek damages in a lower court without a lawyer and with a minimum of expense.

    Did the defendant ever raise a jurisdiction argument?
     
  12. Apparently not.
    What John is getting at is that the federal copyright laws assign jurisdiction to the federal courts. There is an exclusive pre-emption of any state action. The court had no jurisdiction, it shouldn't have tried the case.
    ยง 301. Preemption with respect to other laws 2

    (a) On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.
     
  13. John and Craig: Interesting points. However, I'd argue that this case wasn't really about copyright. My ownership of the copyright was not in question. Nor was it a criminal case to prosecute the defendant for what I alleged was a willful violation of US copyright law. This case was about property. I produced something of value that was stolen and used by a for-profit entity without my consent. The judge adroitly established my ownership of the property and then confirmed that the defendant used this property without consent and with no consideration provided to the owner. We could have been talking about a bicycle. The fact that it was a photograph should not matter. Implicit in the argument too was the defendant's tortious interference with my business as the value of my work with clients is diminished if someone else can take my work for free without payment.
     
  14. Lets say the small claims court had proper jurisdiction... Everything you just said after the case not being about copyright points straight to classic copyright infringment as the basis for your action. Indeed, the only reason your matter even concerned property is because the Copyright Act makes your photo your property. If your bicycle example were true there would be no such thing as "intellectual property" law. There would be no need for it. There would be no need for a Copyright Act.
    (Incidentally, some small claims judges sometimes bend, gloss over or don't remedy ignorance of law especially when the state has no appeal process since they won't be rebuked by appeals courts)
    In any event, its sounds like you did a terrific job presenting your case. I wonder how much the issue for you was about money and how much concerned principle. Either one or both is fine, I'm just curious about how those influenced your motovation to go through all the fuss.
     
  15. John: It was honestly more a matter of principle than anything else, though philosophically it would indeed diminish the value of my work if people used my images without paying for them. So there was real risk in letting it slide. If the real estate agent had shown enough character and had been a good businessperson and just acknowledged my initial e-mail this matter probably would not have gone any further. It might have been understated above but I'm usually fairly generous about allowing people to use my images (in a non-commercial capacity) when they simply ask me first. And I'm willing to give people the benefit of the doubt when they make an honest mistake. But the only thing worse than making a mistake is perpetuating a mistake and everything this realtor did after I found the image just made the situation worse.
    The small claims option didn't really involve a lot of "fuss" either. The complaint form was simple and the filing fee was $35. The way I saw it I didn't have anything to lose. Involving a court in any matter should obviously only be done as a last resort. But it can also be very educational and an effective way to catalyze change. I was satisfied that I had given the defendant sufficient opportunity to rectify the situation and she chose not to. So the choice was clear.
    BTW, there IS a mechanism for appeal in this case (though not by a higher court). In King County District court the defendant would have 30 days from the date of judgment to file an appeal in the matter. However, I hope in this case she is smart enough to understand that she got off cheap.
    The thought I'll leave you with is, legal issues aside, whether it is even worth raising a jurisdictional objection. Though the path to Federal court has a higher threshold for the plaintiff, it might be smarter to let the situation resolve itself in a lower court for $1,000 rather than risk the tens or hundreds of thousands of dollars in damages the defendant would potentially face if a full copyright lawsuit were pursued.
     
  16. Thanks for the follow up. The actions and inactions of the agent at various points in this story seem very ill-advised. Who knows what she was thinking.
     
  17. Unfortunately, by not having an equivalent "small claims" type of recourse, the barrier to both the plaintiff and defendant for a federal court trial is extremely high. I'd guess that if "appealed," the defendant here would win, and the money and the risks are too high to proceed.
    Anecdotal of course but one doesn't see buses driving down the street with smiling lawyers beaming down asking, "Copyright?" chasing easy to win copyright infringements in small matters. If there was "easy money" in obvious infringements, we'd see a lot less infringing. Perhaps DCMA isn't the answer - "small claims" could be. Yet one still has to recover a judgement and the common abusers would seem likely to not have much either way.
     
  18. Craig: Interesting. But I wonder if you could qualify "extremely high." I'd already have a court transcript where the defendant is admitting use of the image. So defense options are somewhat limited. Just what would stop me from filing a full-on lawsuit if she chose to appeal this and won? I know I'd have the burden of proof. But it seems like the potential damages prescribed under 17 USC 504(b) are pretty steep.
     
  19. Extremely high? For her, you've already established a set of "damages." So while you can show she used the image, you've already said it hurt you about $1,000.
    For you? At $200-$400 an hour maybe, how much time can you spend? Taking it to court is a risk. It will be your risk. Does she have any assets to pay you and your attorneys should you win? Would you expect your attorney to accept this on contingency? This time? She'll either have no defense because there is still no money or she'll have a reasonably competent defense which won't make mistakes like not establishing jurisdiction, will poke whatever they can at your case, and aggressively defend her case, no matter how seemingly weak.
    My point is I don't see a lot of self-congratulatory reports on forums of photographers reporting substantial payments from "won" cases, certainly not in comparison to the numbers of reports of infringements. Nor do I see a lot of "advertising" (in good or bad taste or within the realm of good practices) suggesting it's a common practice to take on copyright cases on contingency. It's anecdotal but that's my impression. To get a reasonably concrete assessment of the merits, you'd need to get some consultations.
     
  20. As a trial lawyer by profession, I have to say you did an excellent job of presenting your case. Most non-lawyers don't do nearly as well. And the jurisdiction question? It is up to the Defendant or the court to raise that issue. But believe me, neither one of you wanted to be in federal court over this. Way too much hassle and expense. I think the filing fee alone is about $300 now.
     
  21. From a comment thread on another site where news of my case is posted (and this is from an attorney who is actually a member of the bar in Washington State):
    "For those arguing the jurisdiction of SMC, you need to separate the claims correctly. Christopher was making a claim about the unlawful use of his property, not the copyright. The fact that it was copyrighted in this case is just support for his ownership claims. If he had chosen to, there would also be a copyright claim against CBA (who wrongfully claimed it) and CBA would have a decent fraud claim against the realtor, who fraudulently claimed ownership. (BTW, the admission that "this is the way we do business" HURTS her claim that it was the assistant's fault. Apparently the assistant was doing business as explained to her by her superior.) The claim against theft is completely independent of a copyright claim in that it can (and did) stand alone."
    Craig: I take offense at the characterization that trying to spread the word of my success in this instance is "self-congratulatory." My intent on sharing this experience is to empower others in the same situation to give the small claims strategy a try. Even if you're right, it seems to me that anyone who works in law would know that these things can sometimes be more of an art than a science. If a well-presented case can lose on the whim of a judge or misguided jury, why is it so bad when things work the other way sometimes and a just cause can prevail? (Unless you have an axe to grind against the notion of a photographer being able to hold responsible someone who profited illegally from his work). I have a lawyer but the small claims path was cheap, low-risk and I didn't spend a dime on billable hours by getting him involved. Again, your points are all well taken but we just disagree. I also don't think that the litmus test for the efficacy of a legal argument should be based on whether or not ambulance chasers advertise for it on the side of a bus.
     
  22. Christopher, Many lawyers are unfamiliar with intellectual property issues and can be prone to making false assumptions about them when they have not researched them. While it is best to provide actual legal cites, I'm not going to spend the extra time for something I'm not involved with. Craig has already cited the pre-emption statutory clause in any event. Lawyers, who specialize in this area, contradict the comment you quoted.
    The government website copyright.gov tells us, "Copyright infringement is generally a civil matter, which the copyright owner must pursue in federal court." Attorney Carloyn Wright explains that, nless you have a breach of contract or some other state claim, you must file your infringement claim in a federal district court."
    Now, I know you are claiming that your action is "property" based whcih makes it a state claim. The basis for your "property" claim, as I said, is that the Copyright Act makes an image the creator's property (or their employer). The whole pre-emption stuff should be coming to mind at this point but you are rejecting it so we can review what Attorney/law professor/law school book author Stephan M. McJohn reports. He gives an example where the creator/owner sells a license to be able to distribute copies. The publisher does so but does not pay the owner as agreed. That is a breach of contract which is state claim which allows a state court action. This is contrasted where someon else uses the owner's copyright created property without permission at all. In that scenerio (your exact situation) he instructs us that the matter is federal jurisdiction only and state action is excluded.
    Furthermore, the copyright office provided commentary to congress discussing how difficult it is for most photographers to be able to bring an action such as yours..."Although state court systems offer small claims courts, which handle claims of up to a few thousand dollars and are more congenial to pro se litigation, the federal courts offer no such alternative. As a result, because authors and copyright owners, unlike most other litigants, have no choice but to pursue their claims in federal court, the costs of federal litigation may weigh more heavily on them than on most others." It could not make this comment if actions like yours were generally allowed bases on 'seperate' property claims. If they could, everybody would be doing it. The defendant didn't raise jurisdiction, the judge was either unfamiliar with the jurisdiction issue or decided not to impose it. You got by and hopefully your defendant won't see this thread.
    I'm glad you won your action and applaud your desire to inform others that they may be successful. I choose to inform people that jurisdiction is an issue for them to contend with even if it wasn't in your particular instance. As such I recommend anyone contemplating a claim, where someone lifted their image and displayed it to others, consult with an attorney who has actually familiarized themselves with jurisdiction of copyright infringement actions vs. state claims actions. I already know the answer but that is what I recommend nevertheless.
     
  23. Thanks John. Here's another post (http://copyrightsandcampaigns.blogspot.com/2009/08/can-you-sue-in-state-small-claims-court.html) which supports the position that this judgment was wrong on the basis of jurisdiction. The author suggests (and I agree for self-serving reasons) that perhaps it is a reasonable argument that state courts should be permitted to adjudicate small-dollar copyright cases as a remedy for minor disputes.
     
  24. I didn't say you were self-congratulatory. What I said was there aren't a lot of discussions where photographers are reporting winning small copyright cases in court. There are numerous, perhaps uncountable, examples of photographers reporting their work has been infringed. Most "successes" reported are in the form of take-downs or perhaps in achieving an informal payment for the use.
    Lawyers, like other professions, tend to work where it's possible to be successful in their chosen niches. That there aren't numerous lawyers clamoring for the small infringement market suggest it's either an untapped field or, more likely, it's not a sufficiently lucrative field that it's worth pursuing.
    Your success was an anomaly. The likelihood of it recurring for others is very limited.
     
  25. Its an interesting blog not only because it supports the position that a state court did not have jurisdiction but singles out YOUR case and the lawyer's comemnt you quoted for discussion. Incidentally, one argument against allowing state court cases for infringement actions is that it can cause a lot of non-uniform decisions which would cause chaos. Perhaps, but if aggrieved photographers can't find a feasible way to seek redress in most instances of infringment due to cost and practical hurdles, doesn't that promote its own chaos?
     
  26. It looks like there is little understanding of Small Claims Courts here. SCC is not really a court of law, it is more of a binding arbitration court. In most, if not all, states SCC are local courts in the town, city, or county not state courts at all. The only jurisdiction limits are location and amount. The defendant can demand a trial by jury, and the SCC judge has no choice but to remand the case to the county courts, at that point I would assume the jurisdiction issue would come into play.
    By the way, winning in small claims court does not actually mean you will get your money, it just gives you the right to collect it. The whole thing requires a lot of follow through on the part of the plaintif which most of them do not do, so experienced cheats tend to just ignore the judgment.
     
  27. For all the discussion of whether or not it was appropriate for the Small Claims Court here in King County to adjudicate my case, I'm happy to report that I received a check in the mail today for the full judgment. The real estate agent used every one of her 30 days to pay it, which began to make me wonder if she would. It is also worth noting that, rather than be gracious and take responsibility for her mistake, instead she felt the need to write a couple of colorful things on the face of the check. But it certainly won't delay me from cashing it. Whether or not I should have won where I did now becomes moot. I took a chance and it paid off. The money is less sweet than the justice. But I'll be using the proceeds to purchase a new Canon 85mm 1.2L lens! I felt a further investment in equipment was a wise use of the windfall. Thanks again to all those here who offered words of support and to the attorneys who took the time to enrich the discussion with expert opinions on the matter.
     
  28. "my experience demonstrates that it is possible to seek damages in a lower court without a lawyer and with a minimum of expense."
    The only thing your experience demonstrates is that you can find a judge in small claims court that is clueless. Big deal.
    I wouldn't go advising other people to pursue a legal strategy that relies upon finding a judge that will commit a legal error.
    You're lucky she didn't speak to a lawyer any one of which would have informed her that the small claims court has no jurisdiction over a copyright claim. Ever.
     

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