Photographer Wins $2,501 for Infringement in Anti-Gay Attack Ad Case

 

©Kristina Hill

©Kristina Hill

Photographer Kristina Hill has won a $2,501 judgment for copyright infringement against Public Advocate of the United States, ending a federal case in Colorado over unauthorized political attack ads. The judgment was entered June 4 in the US District Court in Denver.

Hill and her wedding photography clients, Brian Edwards and Thomas Privitere, sued Public Advocate of the United States in 2012 for unauthorized use of an engagement photo of Edwards and Privitere in political mailers produced in 2011 to defeat two Colorado lawmakers who supported same-sex marriage.

The mailers show images of Edwards and Privitere kissing each other. They were created from an engagement photo of the couple that the defendants found online and used without permission.

Kristina-Hill-Attack-AdHill alleged copyright infringement for unauthorized use of her photograph. Edwards and Priviter claimed misappropriation of their likeness for commercial purposes, in violation of their privacy and state right-of-publicity laws.

The court dismissed the couple’s misappropriation claim in March on the grounds that the ads were primarily non-commercial, and because they related to a matter of public concern. Therefore, free speech rights under the First Amendment shielded the defendants from the couple’s claim, the court said.

But the judge rejected Public Advocate’s motion to dismiss Hill’s copyright infringement claims on fair use grounds, because the ads didn’t pass the legal tests for fair use.

According to court papers, Public Advocate finally agreed to accept a declaration from the court that it had infringed Hill’s copyright, “without any finding or admission that such infringement was ‘willful’” under federal copyright statutes.

Public Advocate agreed to pay Hill $2,501 to cover costs related to her claim. The judgment agreement notes that Hill was not entitled to attorneys’ fees because she didn’t register her copyright in the disputed image before the infringement.

For the same reason, she was not entitled to statutory damages, but was limited to actual damages, which tend to be much lower than statutory damages.

Hill was not immediately available for comment.

Related:
In Fight Over Anti-Gay Ad, Misappropriation Claims Are Dismissed
Richard Prince Settles with Photographer Patrick Cariou

 

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7 Responses to “Photographer Wins $2,501 for Infringement in Anti-Gay Attack Ad Case”

  1. Rex Raymond Says:

    I was under the impression that it is no longer required to “register” an image in order to copyright it, but only needed to mark it as copyrighted.

  2. John Says:

    I agree with Rex. I doubt most, if any, wedding photographers register copyright for every wedding & engagement session. This is clear theft and definitely not a ‘win’ for anyone.

  3. Scott Says:

    True, you don’t need to register works to claim / maintain copyright but registering work allows for deeper awards when infringement occurs, awards beyond payment based on a usage / licensing rate plus legal fees… Do a bulk registration of a gazillion images at once for one small fee, electronically through the US Copyright Office.. Set up a user account and make it a monthly ritual or once every 2 months. Google US Copyright Office, they have easy to understand how-to videos that explain the process. Tell your friends… I think te damges awarded for REGISTERED works is a minimum of 25k per image because if it’s registered, infringement is considered a federal crime… Don’t quote me,, look it up.

  4. Colin Says:

    As Scott said, you’re automatically protected by copyright—but you can’t claim statutory damages unless you REGISTER the copyright. It’s cheap, it’s fast, it’s easy, and it’s very simple to make a part of your post-processing routine.

    Without registration, you’re limited to actual damages, which you will have a very hard time proving unless you have a personal history of licensing that matches the scope of the infringement.

    With registration, you are entitled to statutory damages up to $30,000 PER INFRINGING COPY, or up to $150,000 if you can demonstrate the infringement was willful (which many photographers successfully have). Again, that’s not per image—it’s PER COPY.

    In this case, for example, Hill could potentially have scored $150K for each of the mailers, $150K for the TV ad, $150K for the website… Register your work, kids.

  5. PDNPulse » Photographer Wins $2,501 for Infringement in Anti-Gay Attack Ad Case – The Click Says:

    […] Photographer Wins $2,501 for Infringement in Anti-Gay Attack Ad Case […]

  6. Legal Eagle Says:

    PDN could’ve provided a valuable service to photographers by outlining the various levels of copyright. Instead the stories read like press releases from the SPLC. Sadly, this case ended up precisely where it was predicted when I posted the following in September:

    “It would seem that the photograph was used without permission, and that a penalty is in order. However, it would be good to learn some lessons from this that the story seems unable to provide. For instance; If the photograph had been registered with the copyright office prior to it being used for the first time, then the penalties would be substantially higher. Assuming that it was not registered the photographer and her legal representation at the Southern Poverty Law Center can expect significantly less. The flood of stories concerning this case is merely an attempt to strong arm the bad actors.”

  7. Brian Says:

    This is a really interesting case and I would be grateful to see from PDN an accompanying article about what the photographer could have done to further protect herself. What are the various copyrighting options?