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Success in pursuing damages for a photo used without permission

Christopher Boffoli , Aug 14, 2009; 12:12 a.m.

I just wanted to pass along word of my victory today in King County District Court here in Seattle. The case was against a commercial real estate agent who downloaded one of my images off the Web and used it in one of her listings. I'm delighted that the judge in this case respected the value of intellectual property and issued a judgment for the complete damages I was pursuing plus court costs.

I originally shot the image last November. It was published by an online news agency here in Seattle along with an article about a restaurant that was due to close. While doing some research in early May of this year I stumbled upon the image on the Commercial Brokers Association (CBA) website where the closed restaurant was listed for sale. Apparently the listing agent saw my photo on the news story and decided she was going to use it. But she never asked my permission. What made the matter worse is that when I found the image it was being used with the CBA copyright flag over it as if the image belonged to them. Not good.

I've had my work on the Internet long enough to know that these things happen because photos are so easy to download. I maybe find 5-6 images a year that have been downloaded and re-hosted. Normally it is a neighborhood blogger or someone who just liked the image and wanted to post it on their site. These situations are almost always remedied with a polite but firm request to take down the image. And the people who do this usually apologize and comply. But this situation was different mostly because my image was being used in a commercial capacity without authorization. And what really exacerbated the situation is that the listing agent ignored my attempts to contact her about it. I guess she just thought ignoring me would make the situation better. It didn't.

I was able to contact the webmaster at the CBA and they took the image down and apologized. (The CBA is a third party website that hosts the real estate listings for this agent who works for a separate company). The CBA told me that the listing agent had submitted the picture to them and had certified that she owned the image and had permission to use it. It was one thing for the agent to download my image without permission from the news site where it was published. But the worse violation was when she shared the image with a third party, representing it as her own. This was a willful violation of US Copyright law.

When the listing agent refused to take responsibility I decided to file a claim in court. As I was only seeking $1,000 in damages, it was possible to do this through small claims. I did not have to get my lawyer involved and the filing costs were only $35. I went into court loaded for bear. I had everything documented, including a print of the original image, the certificate of copyright registration (filed after I found the image being used but the effective copyright was the date of publication), print outs of my image on the real estate listing, copies of my attempts to contact the listing agent, and materials to support my valuation of the image. But I barely even got a chance to present my case. The judge was very cut and dry. Once she swore us in she asked me a few simple questions: Was the image mine? Did I have proof of copyright? Where was it published? and Was the image published with a caption indicating that it was mine. When I answered her she had all she needed. She turned to the defendant and asked her for her defense. The real estate agent said simply that her assistant uploaded the image and they had no idea where the image came from...that they get images from all sorts of different places, mostly for free, and as such shouldn't be responsible. But fortunately for me she did not deny that the image was mine and that they had used it, for up to six months, to advertise a six-figure commercial real estate listing.

The broker's excuse was as ridiculous as a thief being caught red-handed with stolen merchandise but saying to the police officer "but I don't new where these items came from so how can I be responsible for them?"
The judge spent a minute more trying to get the real estate agent to explain why she thought she wasn't responsible for having to pay me for the use of my image. Finally she admonished her by saying: "Just because something is on the web doesn't make it free." The rest of the conversation involved the judge establishing the value of my image. She thought $1,000 sounded like a lot. But I presented her with invoices from my records for similar stock sales to graphic design firms here in Seattle. I also had an estimate from Getty Images for a use of similar purpose and duration. So the judge granted a judgment for my claim for $1,000 plus court costs.
I wanted to spread the word of this experience to other togs who might find themselves in similar circumstances. My first bit of advice would to first be generous and flexible when people are polite enough to ask for your permission to use an image. And if someone does take your image without asking, give them the benefit of the doubt and politely ask them to remove it from where it has been re-hosted. But as a last resort, if a commercial interest takes your image without permission for their own profit, don't hesitate to hold them responsible, especially when they act unprofessionally and can't even give you the courtesy of a reply.

Even though Copyright law is enforced by the Federal courts, my experience demonstrates that it is possible to seek damages in a lower court without a lawyer and with a minimum of expense. It is worth noting though that in my research for this case I discovered a US District Court case from 2008 in Florida with almost the same merits of my case. A real estate company took a bunch of images from a professional photographer and provided them to a third party without permission or payment. In that case a Federal judge ruled that the real estate company had to pay damages that were equal to a percentage of the sale price of the properties involved, on top of statutory damages. In that instance the photographer was awarded a judgment of more than $12 million.
That case can be found here: http://www.photoattorney.com/2008/06/photographer-gets-12-million-verdict.html

In closing, let me say I hope this never happens to you. But if it does, be a strong advocate for yourself and your art. You're the one who has invested heaps of time into honing your craft. You're the one who foots the bills for the expensive equipment. You're the one who is out in the cold and dark getting eaten my insects in pursuit of great images. Give 'em hell!

Responses


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Richard VanWart , Aug 14, 2009; 12:44 a.m.

Congratulations! Well done, mate! Also appreciate your well-presented narrative of your case. So, start shooting more expensive properties, and maybe you'll hit it big like the Florida case! Seriously though, nice work, and positive precedent for photographers' copyrights. Cheers!

Robert Cossar , Aug 14, 2009; 01:08 a.m.

Well done, and thanks for sharing this....

Mark H , Aug 14, 2009; 01:45 a.m.

Excellent posting. I found it both inspiring and informative. It's so easy to 'pluck' a photograph from the Internet without authorization, I'm glad to know that courts will enforce the law. It's also a fair warning to anyone tempted to appropriate another person's work.

A minor caveat on the big Florida win, the two defendants slapped with the $12 million verdict are likely judgment proof. Turnkey Properties, Inc., is out of business and Michael Friend claims to be unemployed and on food stamps. However, the photographer is still engaged in litigation with other defendants and hopefully will ultimately collect her due whether from the defaulting defendants or the various parties with whom she is still involved in litigation.

Personally, I consider litigation the devil. It is emotionally draining, time consuming, and usually fraught with pain. But as you found, it can be worth it in the end.

Again, congratulations!

Bruce Muir , Aug 14, 2009; 01:55 a.m.

Right Freakin' ON ! ! !

Asa Frye , Aug 14, 2009; 08:26 a.m.

Congrats! And thanks for sharing your story. This is good insight and somewhat reassuring to me given that I've recently been informed that a local business is interested to use one of my images on their web site. I've not yet gotten all the details of their request because they have not yet responded to my request for additional information. It's good to know that I'd likely have satisfactory legal recourse if they attempt to simply use it without contractual permissions.

Katherine Michael , Aug 14, 2009; 08:29 a.m.

Good for you! Thanks for sharing this. You were in the right, prepared and the system worked as it should have.

John MacPherson , Aug 14, 2009; 01:26 p.m.

.....now if only EVERY photographer who has work 'stolen' was as persistent and prepared as you. Well done sir!

Ross Murphy , Aug 14, 2009; 01:44 p.m.

Good job, nice to hear it worked out.

J. Harrington USA (Massachusetts) , Aug 14, 2009; 04:26 p.m.

Thanks for sharing the story. Congrats on the win. Most copyright violators figure they won't be caught.
I have found my images used in commercial ventures without permission many, many times . I've outlined some of the cases on my photographers copyright notice page in the Hall of Shame section.

People have even copied and republished portions of my copyright notice page. How ironic is that?

At least one person's life was turned upside down after they used photo.net founder Phil Greenspun's images without permission. (scroll down to the comments section)


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