Liz Ordonez-Dawes, an accomplished architectural and interior design photographer, recently was awarded more than $12 million dollars for copyright infringement of seven photographs. In brief, the court found that the defendants distributed Ms. Ordonez-Dawes’ photos of high-end houses to various third parties for advertisements to sell the houses without authority and with knowledge that such act constituted copyright infringement. The court’s Order provides some background of the case as well as the calculation of damages.
How did she do it? First, Ms. Ordonez-Dawes registered her photos with the US Copyright Office so that she was eligible for statutory damages for infringements. (Turns out, however, that the actual damages award was even better and you don’t have to had register your photos with the US Copyright Office before the infringement to be eligible for actual damages.) Second, the defendants never filed a response (aka an “Answer”) to the Amended Complaint, so they were in “default.” In other words, the Defendants did not defend the lawsuit so that the allegations of the Complaint were deemed to be true.
The court then calculated the damages. Under 17 USC 504(a), Ms. Ordonez-Dawes could choose between actual damages or statutory damages.
For actual damages, the Copyright Act provides at 17 USC 504(b):
The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.
For the actual damages, the court held that “Plaintiff has demonstrated that she would have charged $58,760.00 for an unlimited, non-exclusive license to use the copyrighted works in question.” For the profits, the court found:
Plaintiff has demonstrated Defendants’ “gross revenues” to be $12,030,500.00. The Court finds a sufficient nexus between these revenues and the infringement of three of Plaintiff’s works, because three of Plaintiff’s copyrighted pictures were distributed by Defendants to be used in advertising to promote the sale of those properties. Those properties were then sold after the publication of the advertisements with the infringing copies of Plaintiff’s works. This connection is sufficient to show a nexus between the revenues and the infringement. See Polar Bear Productions, Inc. v. Timex Corp., 384 F.3d 700, 711 (9th Cir. 2004); On Davis v. The Gap, 246 F.3d 152, 160 (2d Cir. 2001).
In sum, the court found that the sales of the multi-million dollar houses were the “gross revenue” from the infringement. For one of the house photos at issue, the court explained:
Plaintiff provided Defendants with copyrighted pictures of a property located at xxxx Bay Drive, Pompano Beach, Florida. Defendants then distributed Plaintiff’s pictures of this property to third parties, including Classic Realty Group, who then reproduced and distributed these images. Defendants sold the property located at xxxx Bay Drive, Pompano Beach, Florida, for $7,538,000.00 on May 19, 2005.
(Citations omitted; emphasis added.)
Because the defendants were in default, they lost the opportunity to demonstrate that elements of defendants’ profits were attributable to factors other than the infringement of plaintiff’s copyrighted works. Thus, the court deducted nothing from the gross revenues for the profit award. This added up quickly with multiple houses at issue.
Ms. Ordonez-Dawes could have elected the court’s award of statutory damages per infringed work under 17 U.S.C. 504(c). Because the court found the infringements to be willful, she would receive $150,000 for each copyrighted work that Defendants infringed. Let’s see, statutory damages of $1,050,000.00 for seven copyrighted works or $12,089,260.00 for actual damages and profits – no contest!!!
Congrats to Ms. Ordonez-Dawes for successfully protecting her work!
Thanks to Jackie Shumaker for the heads up about the verdict!Check Photo Attorney on Lynda.com