Photographer Wins $129K Against Pornographer

©2004 Lara Jade Coton

A young British fashion photographer has won $129,249 in damages against a pornographic movie distributor who used a self-portrait of the photographer as cover art for an X-rated DVD without permission. The award was for defamation, misappropriation for commercial purposes, and copyright infringement.

Lara Jade Coton filed suit in Florida in 2007 against Robert Burge of Florida and his company, Televised Visual X-ography, after she learned that Burge used one of her self-portraits for a DVD called Body Art. The image (reproduced at right), shot in 2004 when Coton was 14, shows her in a formal dress and top hat in front of a window. She uploaded the image to a site called deviantART.com, where photographers post images to get feedback and sell their work.

Coton confronted Burge by e-mail after learning in early 2007–when she was 17– that TVX was using her self-portrait without permission to promote the DVD. “I am absolutely disgusted that you’ve used my artwork for such a subject,” Coton wrote, and demanded that Burge remove the DVD from distribution and destroy all the artwork. In a subsequent e-mail, she reiterated her demand, and asked for compensation for unauthorized use of her image.

Burge responded that he had outsourced the package design of the DVD to another company, which downloaded the image from a “company…on the internet that is a public domain operation.”

Burge continued, “You knew this when you originally sent us your scheming letter. Nice try toots. We are still going to remove you from the art, not because of your claim but let’s face it your picture means very little to the film.”

The two exchanged more testy e-mails, and Coton said, “This isn’t about money, I was disgusted that you were using my photograph for such an awful subject.”

Finally, in March 2007, she received e-mails from Burge and the graphic artist behind the cover art, saying that 811 unsold DVDs of 1,000 originally distributed had been taken off the shelves and the artwork had been destroyed.

Suffering emotional distress over what had happened, Coton sued for copyright infringement, misappropriation of her likeness for commercial purposes, and defamation by implication. Because Burge and TVX failed to respond to her suit, she won a default judgement against them.

The federal court in Tampa, Florida where Coton filed her claim held a non-jury trial in July to determine damages. The judge issued a final order on damages September 16,  awarding the photographer  $100,000 in compensatory damages for defamation by implication. The judge said that award was reasonable because the defendants’ unauthorized use of her image “improperly suggests the plaintiff’s participation in, or her willing association with, the pornographic industry.”

Finding that Coton suffered harm to her professional reputation, the court awarded her an additional $25,000 in compensatory damages for misappropriation of her likeness. But the judge denied her request for another $25,000 in punitive damages on that count because there was no evidence TVX and Burges had knowingly violated her rights of publicity, the judge said.

For her copyright infringement claim, Coton was awarded $4,249. That included $3,077 in actual damages–equal to a reasonable license fee for the use, plus $1,172 for TVX’s estimated profits from the sale of 189 copies of the DVD.

After winning the award, Coton wrote on her blog, “I was so glad to stand up for myself in court and prove to everyone I wasn’t just ‘a girl that had her picture stolen for a pornographic DVD’ but I’d established a successful career in photography and I hoped that fighting this case would give inspiration to many other young (and older!) photographer’s out there that copyright IS an issue.’

She added, “Remember to be wise about where you upload your images [and] the size you upload them.”

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