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« on: October 30, 2008, 12:44:10 PM »
In an effort to keep you guys updated on trends in copyright law, I wanted to tell you about Faulkner v. National Geographic a case decided herein NY last month that completely supports our position on Getty. I'd be glad to summarize it for you. Photographers sued National Geographic for using their unregistered images without permission. They had given permission for some form of media but not for use in CDROMs etc. They sought all kinds of punitive damages and asked for "multipliers" based on the use and re-use of the image in the future since the CD ROMS were distributed in the marketplace.
While the court did not rule on what would have been fair compensation (it left that for a later trial) it ruled that (1) it has long been the law that statutory damages are not available as the images were not registered; (2) plaintiffs could only get actual damages (3) evidence of willfulness is therefore irrelevant and (4) while it didn't give an amount, the decision makes clear that the court believed $1,320 per image was likely the best plaintiffs would get. Its important to note the court talked about that number because (for whatever reason) Nat'l Geographic did not contest plaintiff's evidence that this was a reasonable license fee. Here are some snippets from Judge Lewis Kaplan's decision:
Plaintiff may not pursue statutory damages here because he did not register his claims to copyright in the photographs in question before the start of the alleged infringement. See, e.g., Mannion v. Coors Brewing Co., 530 F.Supp.2d 543, 554 (S.D.N.Y.2008); 17 U.S.C. § 412. His claim therefore is limited to “actual damages” under 17 U.S.C. § 504(a).
The Second Circuit (THE NY APPELLATE FEDERAL COURT) has made abundantly clear that “[p]unitive damages are not available in statutory copyright infringement actions.” Accordingly, the plaintiff's punitive damages claim is stricken.
As I have concluded above, the Copyright Act limits recovery in this case to “actual damages” and does not permit recovery of punitive damages. Whatever the industry may do or believe as a matter of voluntary and consensual practice does not trump Congress' limitation of damages for infringement in this case to actual damages.
I feel compelled to make one additional point. What plaintiff is entitled to here is actual damages, one measure of which is a reasonable license fee that would have been arrived at between a willing licensor and a willing licensee. Plaintiff Psihoyos here claims infringement of copyright in five images. Were Mr. Dauman's (THE PLAINTIFFS EXPERT) theory of damages accepted, he would be entitled to damages of more than $900,000. And that is just a drop in the bucket. Mr. Dauman's theory, applied to plaintiff Ward, who claimed infringement with respect to 532 images and whose case has been dismissed on other grounds, would have yielded damages to Mr. Ward of more than $96 million.
Indeed, he (THE EXPERT) conceded at his deposition that “had they sought permission ahead of time the cost per picture was $1,350.”
Some sense of rationality must prevail in the law. Certainly if photographers doing this sort of work commanded such compensation in the real world, one would have expected Mr. Dauman to have said so. But there is nothing in this record to suggest that figures such as these are at all reasonable.
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