License Fees as Element of Statutory Damages
The owner of a copyrighted photograph is, under certain conditions, eligible for statutory damages and attorneys’ fees in an action for copyright infringement. The plaintiff in such an action may elect
In a recent case, Van Der Zee v. Greenidge, brought in the United States District Court for the Southern District of New York, the Court explained its rationale for awarding enhanced statutory damages.
The plaintiff held exclusive copyrights in the photographs of her late husband, James Van Der Zee. The defendants were a book publisher and its principal who reproduced two photographs in a catalog as part of an advertisement for a book of Van Der Zee's photographs.
The defendants had approached the plaintiff about permission to reproduce the photographs in the book and negotiations pursued. However, no agreement was ever reached and the plaintiff never deposited a check she received from the defendants nor gave permission to reproduce the photographs.
During the negotiations, Van Der Zee discovered that the defendants had already reproduced the two photographs in the catalog. Litigation ensued when settlement negotiations were unsuccessful.
Defendants eventually defaulted and the Court was asked to enter judgment for statutory damages. The Court, in its analysis, stated that several factors go into determining statutory damages, including expenses saved and profits reaped by the infringers, revenues lost by plaintiffs, the value of the copyright, and the deterrent effect on others besides the defendants. Additional factors include whether such actions were wilful or innocent.
The Court found that there was no evidence of what profits were derived by the defendants since they defaulted, but that at a minimum defendants avoided payment of $1,500 per photo, or a total of $3,000 in licensing fees, which had been set by plaintiff. The Court concluded that doubling this $3,000 amount to $6,000 and awarding that amount in damages was appropriate for the plaintiff's loss. The Court further stated that such amount bore a reasonable relation to actual damages suffered.
The Court, having determined that the defendants are in the book publishing business and therefore in the position to repeat the unauthorized production of copyrighted material, determined that there was deterrent value in assessing damages against the defendants.
As a result, the Court found defendants' wilful conduct to be a basis for enhanced statutory damages. Such enhanced damages, said the Court, are acceptable in light of the Copyright Act's goal of
Furthermore, defendants' failure to appear and defend the case and to turn over documentation to assist the Court in assessing damages, constituted wilful conduct sufficient to justify the award of attorneys fees in the sum of $14,965. The final judgment was therefore in the amount of $25,965, against both the publisher and its principal, jointly and severally.
The case is illustrative of a Court's ability to fashion damages to fit the circumstances of the case. In this situation, with little to go on, the Court doubled the normal licensing fee and then tacked on an additional amount to determine appropriate statutory damages. It also clearly demonstrates the benefit of registration of copyrights at the earliest opportunity.
Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq@aol.com.
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