A federal judge in New York has ruled that a photographer was entitled to receive an award for copyright infringement from a travel website that ran his pictures without paying royalties.
Although the court found that the infringement had been “willful,” the court nonetheless declined to award the maximum statutory damages, which could have brought the total award to more than $600,000. Instead, the court awarded just more than $60,000 to the photographer. See Burch v. Nyarko, 06 Civ. 7022 (S.D.N.Y. June 15, 2007).
The decision in Burch appeared to be based upon the fact that the photographer did not provide evidence to support his claim for damages.
Robert Burch was a professional photographer in Quebec who owned the copyright to four photographs that he took in Ghana. Thomas Nyarko owned a travel agency named Black Star Travel and Tours, located in the Bronx, New York. Three of Mr. Burch’s photos were used on the first page of Black Star’s website, as part of a changing photo montage set to music. The fourth was used on the inside of the site.
Burch contacted Nyarko in June 2006 to inform him that he owed a fee for his usage of the photos, at which point Nyarko “became very agitated and began using abusive language, including a number of expletives, and concluded with the admonishment to ‘never call [his] office again,’” according to the court’s opinion.
The photographs were still on the website a month after the initial phone call from Burch. Eventually the website went offline. Burch then sued Nyarko in federal district court in New York, and although Nyarko was served with notice of the suit, he did not file a response to the complaint.
Under the Copyright Act, a party may choose to obtain actual damages or elect statutory damages, the court noted. The statute provides for statutory damages of between $750 and $30,000 per infringing work, and allows courts to award enhanced recovery of as much as $150,000 per infringing work if the infringement was willful.
Generally, “the total number of awards of statutory damages that a plaintiff may recover in any given action depends on the number of works that are infringed and the number of individually liable infringers, regardless of the number of infringements of those works,” the court stated, citing precedent.
In the case at hand, the court noted there were four infringing works.
To set the amount of the statutory damage award, the court stated that courts generally examine seven factors. These are: 1) the expenses saved and profits reaped; 2) revenue lost by the plaintiff; 3) value of the copyright; 4) deterrent effect on others besides the defendant; 5) whether the defendant’s conduct was innocent or willful; 6) whether the defendant cooperated in providing records with which to assess the value of the infringing material; and 7) the potential for discouraging the defendant.
Burch sought $600,000 in statutory damages—$150,000 for each of the photographs. He based his claim partly on the assertion that he lost $55,017.40 in revenue, the court noted.
“This figure, however is unsupported by any admissible evidence, such as an affidavit. Instead, it is supported only by the invoice Burch originally sent to Nyarko,” the court stated.
The court acknowledged that “there was some revenue lost to [the] plaintiff, even if the record contains no admissible evidence as to the amount.”
“Certainly any award must be elevated enough to deter others from engaging in infringement and to discourage Nyarko from doing this again in the future,” the court continued. “In addition, Nyarko’s conduct—reflected in his refusal to talk to Burch, to remove the photographs promptly from the website, and to respond to this suit—supports a finding of willfulness…permitting an award of up to $150,000 per infringing work.”
Nonetheless, the court declined to issue an award that high, and concluded that $15,000 per photograph, or $60,000, “would be appropriate.” The court did not explain how it reached this lower amount.
The court also awarded $3,280 in attorney fees, which was lower than the amount the plaintiff had sought, concluding that the plaintiff’s counsel did not submit time records with enough specificity about the individual lawyers who worked on the case. “The fee applicant bears the burden of establishing the reasonableness of the hourly rates requested – specifically, by producing satisfactory evidence that the requested rates are in line with those prevailing in the community,” the court admonished.
Why This Matters: The decision appears to be a warning to potential infringers. The court noted that under the circumstances, it could have issued an award of as much as $600,000, even though it chose not to.
Publication date : June 29, 2007
Last updated : June 29, 2007
