Copyright Industry

Getty Images Wins $300,000 in a Copyright Infringement Suit

Getty Images Extortion

Everybody knows at least one person who has downloaded something off the web, maybe a photo or song, without paying for it. Most of the time, these are little white lies, that they don’t believe really harms anyone. And much of the time that is probably true. But then there are those people who choose to illegally download materials to lower their business costs. More often than not, the owner of those works won’t sit idly by and watch someone else profit from their work. This story tells of a Florida couple, Kendra and Ryan Camp, who did just that.  They used photos of dogs and cats owned by Getty Images, resulting in a $300,000 statutory damages judgment against them.

Not a Typical Getty Extortion Letter Case

Getty has a reputation for being Copyright Trolls, and sending out extortion letters when the company finds infringements.  Those cases rarely get filed with the courts. That is not to say that Getty doesn’t have serious cases that require a reasoned legal response.  The Camps are one such case.    The Camps run a website development business, Vet Web Designers, creating websites specifically for veterinarians and veterinary clinics. This is a common business model in that industry. A company can dramatically increase their margins by creating a few model designs with functionality specifically needed by that industry. Since the developer can provide the user with a site tailored to their needs with only minimal amount of customization work, the developer can sell at a price below the market yet with very high margins. With this model, the Camps made over $1 million.

Apparently that wasn’t enough. The Camps decided that paying for certain images was too costly and instead used 12 images in their websites without licensing them. The fees for these images would have been $4,344, but the Camps decided it would be easier to just take them. Getty contacted the Camps, asking for their fees. the Camps refused and after repeated discussions with the Camp’s attorney, initiated a lawsuit. Then, for some unknown reason, the Camp’s attorney withdrew from the case. That likely set off some alarm bells with the court since withdrawing is nto an easy thing to do when you are the attorney for a case. Most often, a withdrawal happens either becasue the client won’t pay, or the client is committing some act that compromises the ethics of the attorney. (Yes, most attorneys do have ethics, although there are a few bad apples ). Then, rather than hiring another attorney, the Camps, in their infinite wisdom, stopped defending the case altogether. They just walked away and refused to participate in any of the requests from Getty or the court. As you might expect, the Court issued a default judgment against the Camps.

The only remaining question that the Court needed to address was the amount of money Getty should receive. 

Of the 12 Getty photos that the Camps were using, the case focused on only two, since they were registered with the Copyright office. Registration is not required to own a copyright. They are granted as soon as you take the picture. However, if your creative work, whether it’s a book, painting, photo or graphic design are is registered wiht the copyright office, you get a some extra rights. Normally, if someone uses a work without permission, the copyright holder is entitled to the profits the person made from the work. Unfortunately, that sometimes comes out to very little. But if the work is registered, prior to the infringement, then the copyright holder can get statutory damages, which range from a minimum of $750 to $30,000 for each infringement. Plus, if the infringement is considered willful, then awards can increase to $150,000 per infringement. The additional amount is designed to be punitive as well as compensatory. This doesn’t mean that willful acts are always above $30,000. Damage awards are decided at the Court’s discretion based on the particular facts of the case. Deciding where along that range the damage award should fall, is usually determined by how effective each attorney pleads their case.

If the infringement is willful, awards can be up to $150,000 per infringement, designed to be punitive as well as compensatory.

Without an attorney to stand up for them, Getty was able to portray the Camps in the worst possible light, including evidence suggesting that the Camps were doing something nefarious with their business because they were using fictitious names with their customers. The most damaging assertion was that even after Getty notified the Camps of the infringement, including 21 phone calls with the Camps’ attorney, the couple continued to use the photos without paying for them. The judge, in his written decision, seemed particularly annoyed with the fact that the Camps failed to participate in Discovery, providing none of the requested documents or agreed to attend depositions.

This was too much for the Court to bear. The Camps callous disregard for their infringing activities as well as their unwillingness to take the case seriously, allowed the Judge to impose the maximum penalty. As the court stated: “A maximum award of $300,000 alerts copyright infringers that they may not “sneer in the face of . . . copyright laws without facing the consequences. . . . Thus it is in the public’s interest to protect the copyright system by awarding Getty maximum statutory damages.” I am sure their attorney told them to stop using the photos. Maybe their actions caused the attorney to withdraw, we just don’t know. But even if the Camps were guilty; had they stopped their actions and hire another attorney to defend them, they would not have received the maximum penalty. But sometimes, you get what you deserve.

 

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

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