Attorney Steve® Photo Infringement - A default can cost you!
Sometimes I see clients who get a letter from a company called PicRights or ImageRights alleging copyright infringement (using a [photo on their website without a license - this is the usual case). But, they get the infringement letter and believe that it is spam or a scam. Many times, the letter can be thrown away or pushed to the side. This can lead to these companies sending the letter up the chance of enforcement to a photo infringement law firm such as Higbee & Associates or Glavine and Levin (two major copyright firms we work with).
Now, some people ask "what happens if I don't respond?" I have to then discuss what happens if they file a lawsuit and you do not respond to the lawsuits and instead "take a default." Well, this can be a risky strategy as the judge can hit you with a "default judgment" that can be higher than you think.
Copyright infringement - Rights holder has an election of remedies
Under the current Act, the copyright owner may elect to recover statutory damages, instead of actual damages and defendant's profits. He may, moreover, make such an election regardless of the adequacy of the evidence offered as to his actual damages and the amount of defendant's profits, and even if he has intentionally declined to offer such evidence, although it was available.” 4 Nimmer, § 14.04[A], at 14-66; see also Columbia Pictures Television, Inc. v. Krypton Broad of Birmingham, Inc., 259 F.3d 1186, 1194 (9th Cir. 2001), (“A plaintiff may elect statutory damages regardless of the adequacy of the evidence offered as to his actual damages and the amount of the defendant's profits.”); Los Angeles News Serv. v. Reuters Television Int'l, Ltd., 149 F.3d 987, 996 (9th Cir. 1998) (“a plaintiff may recover statutory damages whether or not there is adequate evidence of the actual damages suffered by plaintiff or of the profits reaped by defendant, in order to sanction and vindicate the statutory policy of discouraging infringement”).
We have seen defaults run $10-$80,000 or more, so before you roll the dice. Contact an experienced photo who can help you analyze potential defenses, mitigating factors, and who can help you seek an out-of-court settlement that will usually be much small than risking the default.
We have helped many companies, both large and small, and a wide variety of copyright infringement matters including jewelry and computer fonts infringement, designs, photos, software license and audit cases (BSA, Autodesk, Vero, Siemens, Solidworks, photo and video infringement (Strike 3 Holdings, LLC), music infringement and more.
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