Photo Attorney

May 5, 2007

Photographer Gets Just Award and Reward

Photographers often tolerate infringements and other abuses from major clients for fear that the possible loss of work will be greater than the recovery for complaining. But, for one photographer, his claims paid off - big time.

Chase Jarvis is a professional photographer who licensed several thousand shots over three years to K2, the outdoor sporting goods manufacturer. After their business relationship soured, Jarvis sued K2, alleging that K2 had infringed his copyrights, lost some of his slides, and repeatedly failed to give him photo credits. The trial court agreed that K2 was liable and awarded Jarvis: $199,000 for 396 unreturned slides ($500 each for the 395 unidentified slides and $1,500 for one slide that was created for K2 Bike); $11,400 for 105 failures to give Jarvis a photo credit and one mis-credit (based on a rate of $50 per failure for online use, $200 per failure for print ads, and $300 per failure for media use); and $40,107 for 58 infringements of Jarvis' copyrights (based largely on a fair market value of $461 each for images used online). Total: $250,507.00 and there's more to come.

However, the court held that 24 of Jarvis' images contained in four K2 collage advertisements that combined Jarvis' images with other images and graphics were not infringed because the ads were covered by the collective works privilege of 17 U.S.C. section 201(c). Jarvis appealed the damages awards and the court's ruling as to the collage ads' privileged status.

On appeal, the U.S. Court of Appeals for the Ninth Circuit held that the four collage ads were all derivative rather than collective works. Accordingly, when K2 scanned and placed the ads online after the usage period specified in the 2001 License Agreement had terminated, the collective works privilege did not rescue K2 from infringement.

The full court opinion is worth reading, especially with respect to the calculation of actual damages for infringements, the importance of written contracts, the validity of delivery memos, and, most importantly, what can happen when photographers stand up for their rights.

Take my advice; get professional help.
PhotoAttorney®

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