If you find it on the internet than it must be free. How wrong is that! It’s about time that photographers get the respect they deserve and their photographs receive the value that they deserve.
Copyright infringement plaintiffs are entitled to recover actual damages or statutory damages. Here are some ways those damages are computed.
Actual damages in copyright infringement cases are based on the amount the photographer would have charged for the infringing use, plus the defendant’s profits from the infringement. The jury’s determination of actual damages will be guided by expert witness testimony.
The case of Leonard v. Stemtech is a great example. The plaintiff, Andrew Leonard, is an accomplished photographer who creates his images using an electron microscope. Leonard is a highly skilled and experienced creator of microscopic photography. In Leonard’s case, the jury considered the expert testimony of Jeff Sedlik.
Leonard’s images are highly desirable, particularly in the medical, pharmaceutical, and biological research industries. Leonard is one of only a very few photographers who are capable of producing quality images of cells. Few if any photographers besides Leonard have successfully captured a quality image of a cancer cell or bone marrow stem cell.
After considering Mr. Sedlik’s testimony, the jury awarded Mr. Leonard $1.6 Million for infringement of two electron microscope images. On appeal, the Third Circuit Court of Appeals in Philadelphia affirmed. The Court found that Leonard’s images are in high demand, unique and scarce, and these factors increased the amount that Leonard was entitled to as a reasonable licensing fee for his images.
Factors such as scarcity, the infringing use, the type of use, and that the work is the result of a unique, difficult, or expensive process, such as the electron microscope image in question, are all factored into the determination by a jury when pricing a license.
Profits from the Infringement
Section 504 of the Copyright Act allows the plaintiff to recover “additional profits of the infringer that are attributable to the infringement.” Often, a cause and effect relationship can be shown between the plaintiff’s photograph and interest in the defendant’s goods or services.
It has been demonstrated many times that the addition of a photograph in the context of a brochure or website increases the reader’s attention to the material. If any recipients of the brochures in question or any visitors to the defendant’s website can recall the plaintiff’s photograph then the photographer will be entitled to discover this and, if so, some amount of the defendant’s earnings from its services will be recoverable. How much will depend upon several factors, and will also be based upon expert testimony.
If the image sued upon was registered prior to the infringements at issue then the photographer will be entitled to statutory damages in an amount up to $150,000 if the infringement is determined to have been willful.