Photo Attorney

Aug 16, 2009

Photographer Awarded $1,000 for Unauthorized Use of Photo

Christopher Boffoli reports that he was awarded $1,000 plus court costs in the "small claims" court of the King County District Court System (state court) in Seattle for the unauthorized use of his photo. His case was against a real estate agent who used one of his images in one of her commercial listings. He reports on the events at Photo.net.

While copyright infringement claims must be pursued in a federal court, some courts have treated copyright infringement as a breach of contract claim, which can be decided by a state court. The option usually is available in those circumstances where the parties negotiated a license deal but the user failed to pay. Check my January 18, 2006, blog entry for more information.

We can't tell whether the judge in Christopher's case treated his complaint as a breach of contract. However, subject matter jurisdiction can never be waived, so there is a risk that the judgment could be vacated. Further, most federal courts require that your photograph be registered with the U.S. Copyright Office before the court has jurisdiction to hear your copyright infringement claim. See 17 U.S.C. 411 ("no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title") and my March 26, 2005, blog entry for more information.

In sum, while the judgment is at risk of being challenged for subject matter jurisdiction, it would cost the defendant a lot more time and money to dispute it - only to be vunerable to the same result (or worse, if Christopher's photo was timely registered) in federal court. But it's safest to pursue infringement claims in federal court.

Congrats to Christopher to standing up for his rights!