Dr. Elliot McGucken Demand Letters - Photo Infringement [What you need to know to avoid a lawsuit being filed against your company and potentially its officers and directors for personal liability] and information on settlements
Sample of the Copyrighted Work (this is just one photo there are many others).
Did you receive a Legal Demand from our IP law firm dealing with Elliot McGucken Photography? Here is what you need to know. We are willing to work this out amicably, but only if you come forward promptly and take responsibility for your actions. This page will address many of the questions we have received in regard to infringing my client's photographs. We do these cases fairly and promptly but not when you or your company is not being realistic or seeking to ignore any obligation to pay the artist for what you used. Where there is no good faith negotiations, you may face a federal copyright infringement lawsuit where statutory damages and attorney fees are sought.
Another example of the fine art of Dr. Elliot McGucken. All his works that we pursue are copyright protected. Any unlawful or unlicensed use is subject to an infringement action.
Artist Credentials and Accolades
My Client is an accomplished scholar, photographer, and educator. He is well known across the United States. He does not sell stock photos.
Here are some of his highlights over many years earning a doctorate degree, teaching, educations and traveling:
"Elliott McGucken caught fall in all its glory on Friday at North Lake near Bishop, Calif. Colors at the high-elevation lake are now past peak, but many other places have yet to pop."
2. CaliforniaFallColor.com - Used with permission and proper licensing
3. McGucken Flickr photos - copyrighted - no use without a license.
4. Published author (Amazon.com)
6. Featured in BusinessWeek (Professor and Artist) -
"Elliot McGucken, a professor of entrepreneurship at Pepperdine University, bemoans that "a lot of schools have dismissed the idea of teaching the great books." In a recent lecture at Pepperdine, McGucken points out that that one lesson of the classics is, "Chance favors the prepared mind. Instead of viewing risk as a bad thing, we can also view it as a good thing." The classics inspired America's Declaration of Independence, which McGucken sees as an entrepreneurial document. Life has a way of "calling us to adventure," he concludes." --BusinessWeek
7. Taught a class is Art entrepreneurship -
"Photography is quite an investment, and there's "risk" in every outing. In all too many ways modern technology has allowed the photography to be separated from the photographer, whence other folks--oft large corporations/real estate companies/publishers--are able to profit off the photography without compensating the photographer."
8. Doctor McGucken recently received great news that he placed four of his photographs as finalists in the Nature's Best National Parks competition which had 3,000 entries from 13 countries. It is one of the more prestigious competitions. One of his images was in the top 20 and will be published in the 2020 Summer Edition of Nature's Best Photography magazine
His work has been featured in numerous prestigious publications including The Smithsonian Magazine, National Parks Magazine, N-Photo Magazine (cover), The Los Angeles Times, SFGate, The Daily Mail, and other fine publications. Recently, several of Dr. McGucken's fine art photographs published by the prestigious Rizzoli Press in their book Los Angeles on Instagram, which included another photograph of the Malibu Pier shot by Dr. McGucken.
This is just a sample list of achievements and accomplishments. As can be easily seen, this is NOT a stock photo photographer looking to capitalize on run-of-the-mill images. This is true fine art photography using the latest equipment and risking time and capital in every photo shoot.
Top 10 Frequently Asked Questions
Here are some of the main questions people have when we seek to amicably resolve these claims (out of court if possible).
Please review these closely. If you want to discuss settling your case, send us an email through our contact form. We do not want to get into an argument with you, but if our client is not compensated fairly and properly you may face a real risk of a federal court lawsuit including potentially against officers and directors of the company as permitted under the case law in proper circumstances.
Potential personal liability for officers and directors explained
1. I did not use the photo(s) intentionally!
You don't have to. The law recognizes "willful" vs. "non-willful' infringement. Either can lead to copyright infringement claims. Even "innocent" infringement can be actionable (in other words - infringement is infringement). The copyright laws in the United States provide for "statutory damages" of $750 to $150,000 per infringement PLUS attorney fees to incentive protection of the artist's rights. While this may seem like a lot, the law is designed to protect the hard-working artist who creates beautiful art and photography with their own financial risk and to protect the "sweat of their brow."
2. I thought maybe this was a "fair use" of his work?
If you believe the use of Dr. Elliot McGucken's work is "fair use" under the copyright laws, please prepare a detailed analysis of the four fair use factors so that we can review it. Cases are routinely commercial in nature, and typically involve a wholesale misappropriation of my client's photos and images for commercial purposes. However, if you believe you are an exception to this rule please provide your detailed analysis, or have your copyright attorney provide the same so we can review and discuss.
3. How much will this cost me to settle?
We are willing to be reasonable, but we will not be ignored and we will not entertain unreasonable offers for the simple fact that it does not take into account statutory infringement numbers, attorney fees (enforcement or pursuit fees), and does not compensate us for our enforcement efforts or provide any deterrence. Each case is evaluated on its merits, and we will review any financial hardships and any honest, good faith mitigating factors.
4. The business never made money, I will just close it down.
While you may never had made a penny on the photo, or received no page views, or very little financial monetization, this does not mean you cannot be held PERSONALLY liable as an infringer. If willful copyright infringement can be shown and properly alleged, we will seek to hold officers and directors of the company PERSONALLY LIABLE for the infringement, meaning, your personal assets are on the line. The law is designed to protect artists who are being pilfered by small and larger companies that will "wave the white flag" when busted for photo infringement and threaten to file bankruptcy. Please note, that in egregious cases, a judgment may not be dischargeable in bankruptcy.
5. I feel like this is extortion or entrapment
Where is the extortion or entrapment? You are the one that posted the photo (without seeking a license which you could have easily paid for to compensate the artist) but for whatever reason, you did not. It's like stealing a CD from BestBuy because you didn't want to pay the fee and then using that on your commercial website (which is generally the scenario we deal with). So no, there is no extortion, and no, you were not entrapped. You brought this upon yourself so the best bet is to OWN UP and TAKE ACCOUNTABILITY and RESOLVE YOUR LEGAL ISSUE. If not, we may be forced to resolve it through the federal court system. We have appeared in over 125 federal copyright infringement cases.
6. Are you really going to file a lawsuit?
Yes. Where cases "check all the boxes" we will be forced to sue your company and/or its officers and directors. Once this happens, we will be forced to resolve this in federal court before a judge or jury. This will incur costs and filing fees which will be passed on to you once we are successful.
7. I immediately took down the image so what's the problem?
Thank you. That is certainly ONE MITIGATING factor, but this does not RESOLVE THE ISSUE or CLOSE THE BOOK on the liability of the company and/or its officers and directors. Your best bet is to contact us to discuss a formal resolution and payment of past licensing fees, infringement and enforcement fees, etc.
8. I have never heard about "statutory damages" in copyright photo infringement cases, what is this?
A copyright infringement Plaintiff (who has a registered copyright photo - as we normally do) are allowed to "elect their remedies" (either seek statutory or "actual damages"). Watch these two videos to understand these legal concepts - general legal information only.
A. Overview of Federal Copyright Infringement Damages
B. Specific video on "Actual Damages" option for copyright photo holders
It's either-or, whatever is the BEST CASE for the photographer.
9. Are you willing to make a deal to get this case settled and avoid a legal appearance?
Yes, but you have to act fast. We consider people who pretend (to themselves) that this is a "SCAM" and who ignore our legal demand letters and refuse to accept legal accountability, we consider them to be dodgers who "hope the situation will just go away." However, if your case meets our criteria, you will be named as a Defendant in a federal court lawsuit. Once we are forced to file suit we will be seeking the full amount of damages possible, which under the law could be as high as $150,000 per willful infringement (for example, when we provided notice of the infringement and your company did nothing). This can all be easily avoided by coming forward in good faith and being realistic about an out-of-court settlement.
10. What forms of payment do you take?
Certified checks and wire transfers.
11. Why should I pay an infringement fee for a "thin" copyright photo of a landscape?
Here is another argument we get from time to time, usually from infringers that ant to diminish the value or importance of the work they stole and used. For example, when my client's Malibu Landscape (a commonly infringed) piece of Art, and their copyright lawyer tries to say, for example, the photo is worth no more than $200, it is a "thin" copyright, just a landscape photo." However, this evidence a lack of understanding on how photographers work to find the perfect shot. For example, one way we explain it:
"Dr. McGucken's highly-unique and creative fine art photograph of the Malibu Pier required expertise in composition, execution, and advanced HDR-processing, not to mention a unique vision. The high-end Nikon camera, high-end Nikon lens, and tripod, together cost over $5,500. Add in the computer and memory cards and hard drives, and the cost was over $8,000 for the equipment alone. The highly-unique photograph required numerous trips to the beach, seeking the perfect time, tide, and light.
There are no other photographs of the Malibu Pier, nor any other pier for that matter, featuring similar rainbow pastel tones which make the photograph highly unique, attractive, and pleasing to the viewer. Contrary to what the opposing counsel contends, the photograph would be impossible to shoot with a camera phone, as one can note the sharpness of the pier contrasted with the softness of the moving water, which required not only a tripod for a "long exposure" and the blending of images, but Dr. McGucken's unique expertise, talent, vision, and dedication to the craft of fine art photography."
So, no, to try to treat as something you could have done on your iPhone is simply missing the point and dishonoring the artist.
His Works Have High Value in the Public Eye
Contact our Copyright Claims Department to discuss settling your case.
We appreciate the fact that this case may be a nuisance in your life, but it is a nuisance to my client as well who simply wants to be compensated for his hard work. If you have a license or paid to use his photographs or artwork, please send us proof immediately.
If you want to discuss settling your case and avoiding a federal court lawsuit against your company, and potentially officers and directors, please email us through the contact form.
"AVOIDING PROBLEMS RARELY MAKES THEM GO AWAY AND IGNORANCE OF THE LAW HAS NEVER BEEN A VALID DEFENSE."
Photo Infringement Case Law
You may be wondering what the law has to say about all this. Here are a few cases to highlight how the Courts may handle your infringement.
Federal law (17 U.S.C. § 504(b)) provides:
"The copyright owner is entitled to recover the actual damages suffered ... as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.
10k per photo with no evidence of licensing
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK KENNEDY STOCK, LLC, Plaintiff, -against NLS NEW YORK INC., Defendant. 18-CV-4991 (PGG) (BCM) REPORT AND RECOMMENDATION TO THE HON. PAUL G. GARDEPHE BARBARA MOSES,
FACTS: On March 20, 2018, the plaintiff took screenshots of the pages of the NLS Website displaying the plaintiff's Photographs. Compl. Ex. 2. As can be seen from those screenshots, NLS used the Photographs as small "thumbnail" images underneath six testimonials, each attributed to an NLS customer. For example, the plaintiff's "woman in tan trenchcoat" was identified on the defendant's website as "Lauren Kim," the "Travel Team Supervisor for the New York Liberty." Id. Above the image is a large quote bubble reading (in part): "You guys are amazing. Drivers like Abdul are a credit to your organization and make me very happy that we chose you as our corporate car service. Keep up the good work guys." Id. The plaintiff's "man in a blue shirt and leather jacket" appeared on the NLS Website as "Michael Moretti" of "Blackstone Corp.," who was quoted as saying, in part, "Helpful staff, clean comfortable vehicles. They make all my visits to Manhattan much more pleasant and convenient." Id. 3 the watermark, thereby "removing critical copyright management information" and "conceal[ing] . . . its unauthorized use of the Photographs." Id. ¶¶ 41-42. On or about March 20, 2018, Kennedy Stock's counsel sent a cease and desist letter to NLS, demanding that it remove the unauthorized copies of the Photographs from the NLS Website. Compl. ¶ 21. NLS removed the Photographs, but did not further respond to Kennedy Stock's inquiries or cooperate with Kennedy Stock's investigation of the matter, except to "contend that the [NLS] Website is 'under construction.'"
The plaintiff seeks statutory damages under the Copyright Act, 17 U.S.C. § 504(c), in the amount of $900,000, attorneys' fees in the amount of $2,268, and costs in the amount of $65.
COPYRIGHT 1202 Claim:
Thus, to establish a violation under §1202(b)(1), a plaintiff must show
"(1) the existence of CMI on the [infringed work];
(2) removal and/or alteration of that information;
(3) that the removal and/or alteration was done intentionally." Banxcorp v. Costco Wholesale Corp., 723 F. Supp. 2d 596, 609 (S.D.N.Y. 2010) (collecting cases).
The plaintiff must also establish that the removal or alteration "was done knowing that it would induce, enable, facilitate, or conceal an infringement."
See Mango v. BuzzFeed, Inc., 356 F. Supp. 3d 368, 377 (S.D.N.Y. 2019).
Willfulness As discussed in more detail below, plaintiff seeks enhanced statutory damages for copyright infringement, which are available only if the infringement "was committed willfully." 17 U.S.C. § 504(c)(2). "A copyright holder seeking to prove that a copier's infringement was willful must show that the infringer 'had knowledge that its conduct represented infringement or . . . recklessly disregarded the possibility.'" Bryant v. Media Right Prods., 603 F.3d 135, 143 (2d Cir. 2010) (quoting Twin Peaks Prods., Inc. v. Publications Int'l, Ltd., 996 F.2d 1366, 1382 (2d 11 Cir. 1993)); accord Island Software & Comput. Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 263 (2d Cir. 2005); Reilly, 2016 WL 6837895, at *8. ("Where, as here, the defendant has defaulted, the complaint's allegations of willfulness may be taken as true."); accord CJ Prods. LLC v. Your Store LLC Online LLC, 2012 WL 2856068, at *3 (S.D.N.Y. July 12, 2012).
The plaintiff's allegation that NLS intentionally removed its CMI from the Photographs before displaying them on its own website further supports its charge that the defendant acted willfully. See Reilly, 2016 WL 6837895, at *9 ("The act of removing plaintiff's CMI from the Photograph before displaying it on [defendant's] Website not only establishes a violation of the DMCA . . . it also demonstrates that the defendant knew that its conduct was infringing."
DOUBLE DAMAGE AWARDS:
In this Circuit, courts look to the following factors to determine the 6 Statutory damages are also available under the DMCA, see 17 U.S.C. §§ 1203(c)(1)(B), but the range is lower: "At any time before final judgment is entered, a complaining party may elect to recover an award of statutory damages for each violation of section 1202 in the sum of not less than $2,500 or more than $25,000." 17 U.S.C. § 1203 (c)(3)(B). Moreover, courts have been reluctant to allow plaintiffs to recover duplicative damages under both the Copyright Act and the DMCA. See, e.g., Indu Craft, Inc. v. Bank of Baroda, 47 F.3d 490, 497 (2d Cir. 1995) ("A plaintiff seeking compensation for the same injury under different legal theories is of course only entitled to one recovery"); Tu v. TAD Sys. Tech. Inc., 2009 WL 2905780, at *5 (E.D.N.Y. Sept. 10, 2009) ("Plaintiffs are not entitled to duplicative statutory damages under the Copyright Act, DMCA, and the Lanham Act"); Adobe Sys. Inc. v. Feather, 895 F. Supp. 2d 297, 303 n.5 (D. Conn. 2012)
Where the infringement was "willful," the maximum permissible award per infringed work rises to $150,000. Id. § 504(c)(2).6 The Copyright Act affords the trial court "wide discretion" in setting the amount of statutory damages, Fitzgerald Publ'g Co. v. Baylor Publ'g Co., 807 F.2d 1110, 1116 (2d Cir. 1986); accord Noble, 2015 WL 5697780, at *7; Arista Records LLC v. Usenet.com, Inc., 2010 WL 3629688, at *4 (S.D.N.Y. Feb. 2, 2010), report and recommendation adopted, 2010 WL 3629587 (S.D.N.Y. Sept. 16, 2010). Moreover, "[c]ase law reflects a wide range of awards where there have been infringing uses of photographs." Myeress v. Elite Travel Grp. USA, 2018 WL 5961424, at *3 (S.D.N.Y. Nov. 14, 2018) (quoting Burch v. Nyarko, 2007 WL 2191615, at *3 (S.D.N.Y. July 31, 2007) (collecting cases)).
The appropriate measure of statutory damages for copyright infringement:
(i) the expenses saved and profits earned by the infringer;
(ii) the revenues lost by the plaintiff;
(iii) the value of the copyright;
(iv) the deterrent effect on those other than the infringer;
(v) the willfulness of the infringer's conduct;
(vi) whether the infringer cooperated in providing records to assess the value of the material infringed;
(vii) the likelihood the award will discourage the defendant from repeating its infringement. See Bryant, 603 F.3d at 144; Noble, 2015 WL 5697780, at *6; Usenet.com, 2010 WL 3629688, at *4.
"Awards of statutory damages serve two purposes—compensatory and punitive." Fitzgerald Publ'g Co., 807 F.2d at 1117.
At the punitive end of the scale, the statutory maximum is typically reserved for "truly egregious conduct such as where a defendant has been adjudged to have willfully infringed, yet continued the same pattern of behavior in contravention of court order." EMI Apr. Music Inc. v. 4MM Games, LLC, 2014 WL 325933, at *5 (S.D.N.Y. Jan. 13, 2014) (quoting Tips Exps., Inc. v. Music Mahal, Inc., 2007 WL 952036, at *5 (E.D.N.Y. Mar. 27, 2007)), report and recommendation adopted, 2014 WL 1383468 (S.D.N.Y. Apr. 7, 2014).
Kennedy Stock seeks to recover $150,000 for each infringed work, for a total of $900,000, which is the maximum permissible award under the Copyright Act for willful infringement of copyrights in six separate works. Prop. Findings at 6. Although the plaintiff's well-pleaded allegations support the conclusion that NLS acted willfully, not all willful conduct constitutes the kind of "truly egregious conduct," EMI Apr. Music, 2014 WL 325933, at *5, that justifies maximum damages. In this case, NLS removed the Photographs from the NLS Website after it received a demand letter from the plaintiff's counsel. See Compl. ¶¶ 21-22. Moreover, there is no allegation that NLS is a repeat offender, or that it acted "in contravention of [a] court order." EMI Apr. Music, 2014 WL 325933, at *5. An award of $150,000 per Photograph – or anything close to that figure – would, therefore, be inappropriate. Compare Sheldon, 2016 WL 5107072, at *17 (awarding 14 maximum statutory damages where, notwithstanding plaintiff's cease-and-desist letter, followed by negotiations between the parties' counsel, defendant continued to display the infringing photograph on its website with false CMI) with Reilly, 2016 WL 6837895, at *9 (awarding $15,000 in statutory damages where the same defendant "removed the Photograph from its website as soon as it received a demand letter from plaintiff's counsel").
STATUTORY DAMAGE SHOULD BEAR SOME RELATION TO DAMAGES SUFFERED / USE OF MULTIPLIERS
Where the infringement was willful but not "truly egregious," courts in this Circuit frequently award statutory damages "of between three and five times the cost of the licensing fees the defendant would have paid." Broad. Music, Inc. v. Prana Hosp., Inc., 158 F. Supp. 3d 184, 199 (S.D.N.Y. 2016) (collecting cases and awarding "approximately five times the sum of BMI's unpaid licensing fees"). See also Cengage Learning, 2015 WL 5167775, at *4 (quoting Van Der Zee v. Greenidge, 2006 WL 44020, at *2 (S.D.N.Y. Jan. 6, 2006)) (the statutory award should bear "some relation to actual damages suffered").
EVIDENCE OF PAST LICENSING
In this case, however, the plaintiff has proffered no evidence concerning its licensing fees. Nor has it submitted evidence of the expenses saved or profits earned by NLS, the value of the copyrights, or any other economic factors bearing on actual damages. The Court, therefore, must base its decision upon a little more than the facts alleged in the Complaint itself: that defendant willfully infringed six copyrighted photographs, for commercial gain, but has no known history of similar violations, and responded to plaintiff's cease and desist letter by taking down the offending images. I conclude that an award of $10,000 per infringed Photograph, for a total of $60,000, adequately serves the purposes of statutory damages, including both compensation and deterrence.
Attorneys' Fees and Costs The Copyright Act expressly permits an award of "full costs," including "a reasonable attorneys' fee," to the prevailing party. 17 U.S.C. § 505, see also 17 U.S.C. § 1203(b)(4)-(5). Attorneys' fees are generally warranted where the defendant acted willfully. See Hollander Glass 15 Tex., Inc. v. Rosen-Paramount Glass Co., Inc., 291 F. Supp. 3d 554, 560 (S.D.N.Y. 2018); Myeress, 2018 WL 5961424, at *4 (citing Kepner-Tregoe, Inc. v. Vroom, 186 F.3d 283, 289 (2d Cir. 1999)). An award of fees "lies within the sole and rather broad discretion of the Court." Baker v. Urban Outfitters, Inc., 431 F. Supp. 2d 351, 357 (S.D.N.Y. 2006). Given the defendant's willful misconduct, together with its failure to offer any defense to the plaintiff's claims, I recommend that attorneys' fees and costs be awarded to plaintiff Kennedy Stock. "The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cty. of Albany, 522 F.3d 182, 186 (2d Cir. 2008)
CONCLUSION For the reasons set forth above, I respectfully recommend that plaintiff Kennedy Stock be awarded (i) statutory damages under the Copyright Act, 17 U.S.C. § 504(c), in the amount of $60,000; and (ii) attorneys' fees and costs in the amount of $2,918.7.
Getty Images (US), Inc. v. Virtual Clinics, 2014 U.S. Dist. LEXIS 37611
Copy Citation United States District Court for the Western District of Washington March 20, 2014, Decided; March 20, 2014, Filed
CASE NO. C13-0626JLR
REPEATED INFRINGEMENT IS WILLFUL - [300k for 2 photos]
Getty must show that the Camps' acted willfully such that their infringing conduct occurred "with the knowledge that [it] constituted copyright infringement." Danjaq LLC v. Sony Corp., 263 F.3d 942, 957 (9th Cir. 2001). This factor is typically given the most weight by courts in determining an appropriate amount of statutory damages. See Milene Music, 551 F. Supp. at 1296 ("Courts . . . have focused largely on the element of intent . . . .").
"[T]he per-infringement award tends understandably to escalate, in direct proportion to the blameworthiness of the infringing conduct." Id. "Where defendants have ignored or disregarded notices of the need for licensing, willful infringement has been found." Street Talk Tunes v. Vacaville Recreation Corp., No. CIV S-05-2401FCDJFM, 2006 U.S. Dist. LEXIS 20941, 2006 WL 2423429, at *2 (E.D. Cal. 2006).
At the evidentiary hearing, Getty provided substantial evidence that the Camps were aware that their conduct infringed Getty's copyrights. Getty first informed the Camps of their infringing activity in 2007, and the Camps continued to infringe images licensed exclusively to Getty, even after this suit was instituted in April 2013. (Pinto Decl. at 13-22.)
The Camps received notice of their infringement because "Abe Goldstein," the Camps' purported attorney, responded to Getty at least 21 times to deny that the Camps had engaged in any infringement. (Wojtczak Decl. at 2.)
The Camps also initially participated in the suit, moving to dismiss the case for lack of personal jurisdiction. (See generally Mot. to Dismiss.) Therefore, the Camps knew by at least 2007 that they were infringing Getty's copyrights, but nevertheless continued their infringement.
Such sustained violation of the law supports a maximum award. For the reasons discussed above, the court in its discretion GRANTS Getty $300,000.00 for the Camps' willful infringement of two registered copyrights.
Wild v. Peterson, 2016 U.S. Dist. LEXIS 92423
United States District Court for the Eastern District of California
July 15, 2016, Decided; July 15, 2016, Filed
ONE INFRINGEMENT = $7,500
Plaintiff is a well-known insect photographer, who sells or licenses his photographs to others wishing to make use of the photographs for advertisements and pecuniary gain. The plaintiff took the original image at issue in this action (the "Image"), has ownership of the Image, and registered the Image with the United States Copyright Office under Registration Number VAu699-806. According to the plaintiff, the defendant willfully used, without the plaintiff's consent, the Image on the defendant's business website from March 15, 2015, through at least the filing of the complaint, for commercial benefit in promoting defendant's pest control business. Based on the above, the plaintiff commenced this action alleging a single claim of copyright infringement under 17 U.S.C. §§ 501 et seq., against defendant on December 15, 2015.
DEFAULT ADMITS ALLEGATIONS IN COMPLAINT
As a general rule, once default is entered, well-pled factual [*4] allegations in the operative complaint are taken as true, except for those allegations relating to damages. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (per curiam) (citing Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977) (per curiam)); accord Fair Housing of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002). In addition, although well-pled allegations in the complaint are admitted by a defendant's failure to respond, "necessary facts not contained in the pleadings, and claims which are legally insufficient, are not established by default." Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992) (citing Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978)); accord DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th Cir. 2007) (stating that a defendant does not admit facts that are not well-pled or conclusions of law); Abney v. Alameida, 334 F. Supp. 2d 1221, 1235 (S.D. Cal. 2004) ("[A] default judgment may not be entered on a legally insufficient claim"). A party's default does not establish the amount of damages. Geddes, 559 F.2d at 560.
As noted above, plaintiff seeks $20,000.00 in statutory damages. In a claim for copyright infringement, a plaintiff may elect to seek either actual or statutory damages. 17 U.S.C. § 504. The statute provides for statutory damages for all infringements of a given work of not less than $750.00 and not more than $30,000, as the court considers just. 17 U.S.C. § 504(c)(1).
"In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000." 17 U.S.C. § 504(c)(2).
Courts in this district have previously looked to seven factors in evaluating whether a proposed award of statutory damages is just: (1) "the expenses saved and the profits reaped;" [*9] (2) "the revenues lost by the plaintiff;" (3) "the value of the copyright;" (4) "the deterrent effect on others besides the defendant;" (5) "whether the defendant's conduct was innocent or willful;" (6) "whether a defendant has cooperated in providing particular records from which to assess the value of the infringing material produced;" and (7) "the potential for discouraging the defendant." See, e.g. Microsoft Corp. v. Nop, 549 F. Supp. 2d 1233, 1237 (E.D. Cal. 2008).
In this case, the plaintiff has adequately established that the defendant's infringement was willful. Apart from alleging willfulness in the complaint, the plaintiff's supplemental briefing and supporting materials make clear that the plaintiff's counsel contacted the defendant regarding the infringement on numerous occasions, starting in February 2015 and long before filing this action in December 2015. (See ECF No. 16 at 8-11 [outlining exact dates and times for communications by letter, email, and phone].) Nevertheless, at least as of April 2016, after numerous communications from the plaintiff's counsel and being served with process in this action, the defendant continued to use the Image on its website. (ECF No. 16-1 at 6-7.)
Therefore, the appropriate range of statutory damages is $750.00 to $150,000.00. Although $20,000.00 is admittedly towards the lower end of that range, the court finds an award of $20,000.00 to be excessive when all the circumstances are considered.
According to the plaintiff, it customarily charges between $95.00 and $375.00 for a "perpetual, non-exclusive, non-transferable, worldwide license" to use the Image for permitted commercial purposes, including using it "as part of a commercial website for promotional purposes." (ECF No. 16-1 at 4.)
Even assuming that the highest pricing applied, the defendant would only have been required to pay $375.00 to use the Image on its website indefinitely. This case essentially involves the unauthorized copying of a single image by a relatively small, regional pest control company.
Based on the materials submitted by the plaintiff, the Image appeared along with several other images of insects, serving as examples of the types of pests encountered in Placer, El Dorado, and Sacramento counties.
While the Image was undoubtedly used for commercial purposes, it was not used as the main logo or trademark for the business, nor is there any other indication that the defendant derived substantial economic value from its unauthorized use of the Image.
Specifically. As such, statutory damages based on a multiplier of more than 53 times the actual cost of a license are unjustified.
On the other hand, the court is cognizant of the significant need for deterrence of both defendant and other infringers, particularly when faced with the defendant's continued willful use of the Image despite numerous communications from the plaintiff's counsel and this lawsuit.
20 X's Multiplier Award
The court also recognizes that the defendant's failure to participate in this lawsuit has deprived the plaintiff of conducting discovery with respect to the defendant's use of the Image and potential profits reaped from such use that may not be immediately apparent. Therefore, after careful consideration of all the relevant factors and circumstances, the court awards $7,500.00 in statutory damages, which represents a multiplier of 20 times the $375.00 licensing fee.
That amount is sufficient to fairly compensate plaintiff, as well as to deter defendant and others from similar conduct, without being unduly punitive
Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218
United States Court of Appeals for the Ninth Circuit
October 8, 2010, Argued and Submitted, Pasadena, California;
August 8, 2011, Filed
PERSONAL JURISDICTION IN CALIFORNIA
Mavrix Photo, Inc. ("Mavrix") sued Brand Technologies, Inc. and its CEO, Brad Mandell (collectively, "Brand"), in federal district court for the Central District of California, alleging that Brand infringed Mavrix's copyright by posting its copyrighted photos on its website. Brand moved to dismiss for lack of personal jurisdiction. See Fed. R. Civ. P. 12(b)(2). The district court denied Mavrix's motion for jurisdictional discovery and granted Brand's motion to dismiss. We reverse. We hold that Brand is not subject [**2] to general personal jurisdiction in California, but that its contacts with California are sufficiently related to the dispute in this case that it is subject to specific personal jurisdiction.
Mavrix, a Florida corporation with its principal place of business in Miami, is a celebrity photo agency. Mavrix pays photographers for candid photos of celebrities. Its primary business is licensing and selling those photos to purveyors of celebrity news such as People and Us Weekly magazines. Many of the celebrities whom Mavrix photographs live and work in Southern California. Mavrix keeps a Los Angeles office, employs Los Angeles-based photographers, has a registered agent for service of process in California, and pays fees to the California Franchise Tax Board. Brand, an Ohio corporation with its principal place of business in Toledo, operates a website called celebrity-gossip.net. As its name suggests, the website covers popular personalities in the entertainment industry and features photo galleries, videos, and short articles (for example, "Lindsay Lohan Stays Sexy and Sober," and "Shiloh Jolie-Pitt Named Most Influential Infant"). The website has several interactive features.
Visitors to the site may post comments on articles, vote in polls ("Is Robert Pattinson the sexiest man on the planet?"), subscribe to an email "Celebrity Newsletter," join the "Gossip Center" membership club, and submit news tips and photos of celebrities.
The website is very popular. When this litigation began, Alexa.com, an Internet tracking service, ranked celebrity-gossip.net as number 3,622 out of approximately 180 million websites worldwide based on traffic. By comparison, the national news website MSNBC.com was then ranked number 2,521. In its marketing materials, Brand claims that celebrity-gossip.net currently receives more than 12 million unique U.S. visitors and 70 million U.S. page views per month. Gossip Center Network, Media Kit, at 3, available at http://cdn.gossipcenter.com/gossipgirls_cdn/GCN-MediaKit .pdf (last visited July 21, 2011). The record does not reflect how many of the website's visitors are California resident
The applicability of Keeton to this case depends on two similarities between celebrity-gossip.net and Hustler magazine. First, both were large publications that sought and attracted nationwide audiences. Both publications could count on reaching consumers in all fifty states. Second, both publications cultivated their nationwide audiences for commercial gain.
Accordingly, neither could characterize the consumption of its products in any state as "random," "fortuitous," or "attenuated." Burger King, 471 U.S. at 486. Rather, consumption was a predictable consequence of their business models. See Goodyear, 131 S. Ct. at 2855
"[W]here 'the sale of a product . . . arises from the efforts of the manufacturer or distributor to serve . . . the market for its product in [several] States, it is not unreasonable to subject it to suit in one of those states if its allegedly defective merchandise has there been the source of injury to its owner or to others." (quoting World-Wide Volkswagen, 444 U.S. at 297 (emphasis and second alteration added by Goodyear))); Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 899 (9th Cir. 2002); Plant Food Co-op v. Wolfkill Feed & Fertilizer Corp., 633 F.2d 155, 158-60 (9th Cir. 1980).
The same would not necessarily be true, for example, of a local newspaper, an individual, or an unpaid blogger who posted an allegedly actionable comment or photo to a website accessible in all fifty states, but who could not be as certain as Brand or Hustler that his actions would be so widely observed and who did not seek commercial gain from users outside his locality. Not all material placed on the Internet is, solely by virtue of its universal accessibility, expressly aimed at every state in which it is accessed. But where, as here, a website with national viewership and scope appeals to, and profits from, an audience in a particular state, the site's operators can be said to have "expressly aimed" at that state.
We acknowledge the burden that our conclusion may impose on some popular commercial websites. But we note that the alternative proposed by Brand's counsel at oral argument — that Mavrix can sue Brand only in Ohio or Florida — would substantially undermine the "interests . . . of the plaintiff in proceeding with the cause in the plaintiff's forum of choice." Kulko v. Superior Court of Cal., 436 U.S. 84, 92, 98 S. Ct. 1690, 56 L. Ed. 2d 132 (1978). Brand's theory of jurisdiction would allow corporations whose websites exploit a national market to defeat jurisdiction in states where those websites generate substantial profits from local consumers. See Burger King, 471 U.S. at 473-74 "[W]here individuals 'purposefully derive benefit' from their interstate activities, it may well be unfair to allow them to escape having to account in other States for consequences that arise predictably from such activities; the Due Process Clause may not readily be wielded as a territorial shield to avoid interstate obligations that have been voluntarily assumed." (quoting Kulko, 436 U.S. at 96)).
We also note that the "expressly aimed" requirement is a necessary but not sufficient condition for jurisdiction. In order to establish specific jurisdiction, a plaintiff must also show that jurisdictionally significant harm was suffered in the forum state.
The Size of your business may be taken into account
Courts have repeatedly held that any award for copyright infringement should be more than a “slap on the wrist” and must be enough to deter its infringement . Some example cases include:
See UMG Recordings, Inc. v. MP3.Com, Inc., 56 U.S.P.Q.2d 1376, 1380, 2000 WL 1262568 (S.D. N.Y. 2000) (“defendant's size and financial assets are highly relevant to arriving at the appropriate level of statutory damages”);
Broadcast Music, Inc. v. Larkin, 672 F. Supp. 531, 535 (D. Me. 1987) (relying on “the size of Defendants' business,” including “gross revenues”);
Hulex Music v. Santy, 698 F. Supp. 1024, 1031 (D.N.H. 1988) (relying on “the size of defendants' operation”);
Burndy Engineering Co. v. Penn-Union Electric Corp., 32 F. Supp. 671, 672 (W.D. Pa. 1940), order aff'd, 122 F.2d 932, 51 U.S.P.Q. 548 (C.C.A. 3d Cir. 1941) (relying on the “gross sale[s]”of defendant's business);
Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522, 1545 (S.D. N.Y. 1991) (“substantial damages are necessary [because] Kinko's has substantial income and assets”).
Do we file photo infringement lawsuits?
Normally, we are able to work out amicable settlements OUT-OF-COURT. But sometimes, Defendants/infringers just don't realize the value of an out-of-court settlement and want to pay THEIR SET LICENSING FEES instead of a realistic fee which includes damages and enforcement costs.
We recently filed in the Central District Federal Court of California against a company and individual (Ken Rhode of Laguna Niguel and his Mammoth Vacation Rental company) who refused to take down my Client's photo after given fair notice and opportunity for settlement. Now we will be seeking the maximum statutory damages of $30,000 to $150,000 plus attorney fees and costs.
Contact us by email if you want to settle your case out of Court amicably and with a release for all copyright infringement claims
The United States Constitution specifically protects artists and their creative Works, which often are brought to you only after high prices, time, money, effort and risks were taken to get the right photo. Sometimes, it takes sheer luck. But regardless, realize all the costs YOU GOT TO SAVE in "cutting and pasting" a fabulous photo:
What lies hidden behind every photograph are the costs of the cameras, lenses, software, computers, editing, and more, as well as the years spent honing the craft, (and all the times one must return to the same location for "the shot,") after having scouted it. Nothing is as easy as it seems on the surface. We are willing to work amicably but the artists must be paid.
NOTE: All images on this page are subject to federal copyright protection and may not be copied, reproduced, distributed, publicly displayed or otherwise used without express written consent.