In today’s tech obsessed reality, everyone has a satellite worthy camera lens permanently glued to their palms and are documenting everything from their photogenic breakfasts to their less than photogenic work from home attire.
In our increasingly litigious and volatile society, an underground economy has surfaced in which many pseudo artists, and of course their lawyers, make a career out of seeking settlements for works that have been infringed upon, regardless of whether there is any real value or income potential in the work itself.
For instance, if one of our attorneys decided to register the photo of corn fields taken on their last trip home to Kansas with the U.S. Copyright Office, and that photo ended up on the bottle of the latest and greatest celebrity-backed whiskey company, how much am I really damaged? If I chose to pursue this infringement, regardless of the lack of talent or skill involved, it could still be worth a pretty penny.
A claimant seeking damages for copyright infringement can elect whether to pursue actual damages or statutory damages. Actual damages are based on the loss the copyright owner incurred. However, it is often extremely hard to prove this form of damages. Therefore, a plaintiff can elect to pursue statutory damages. While good in theory, a plaintiff who can show willful infringement may be entitled to statutory damages up to $150,000.00 per infringement, per work.
Yes, that means I could potentially be awarded $150,000.00 each time my photo was printed on a whiskey bottle. Of course, this is an extreme and unlikely example, and here at Yoffe & Cooper, LLP, we would happily settle this claim for a few bottles to add to our extensive in-house whiskey collection.
However, the looming potential of this massive judgment often places small business owners in the precarious position of having to pay excessive settlement demands due to fear of a lengthy legal battle and a potential windfall for the claimant.
While some take advantage of the current framework, the intent of the statute was to protect artists’ registered work. Therefore, any change being considered to the current framework begs the question, how do we protect real artists and their source of income without handicapping small businesses with frivolous claims from those who are seeking to take advantage of the system?
As with all attorneys, I don’t have a straight answer for you, but I am confident that the corn field photo does not warrant a six figure pay day.
