April 4th, 2014

Appeals Court Upholds Copyright Infringement Damages Award to Louis Psihoyos

A federal appeals court in New York has refused a textbook publisher’s request to reduce a $130,750 award that a jury granted to photographer Louis Psihoyos last year for copyright infringement.

Psihoyos sued publisher John Wiley & Sons in 2011 for infringement of eight of his photographs. Claims over four of the images were dismissed before trial, but a jury found Wiley liable for willful infringement of two of the remaining images and awarded statutory damages totaling $130,000. At the same time, the jury found Wiley liable for non-willful infringement of a third image, and awarded $750. It concluded that Wiley’s use of the remaining image was not infringing.

Wiley appealed, arguing that the trial court erred because it refused to consider whether the jury award was reasonably related to Psihoyos’s actual loss. Wiley called it “an epitome of a run-away award” in one of its appeal briefs.

But the appeals court rejected Wiley’s argument, saying, “Although revenue lost is one factor to consider, we have not held that there must be a direct correlation between statutory damages and actual damages.”

The appeals court went on to say, “The District Court concluded that several of the relevant factors could explain the jury’s award based on the evidence…in particular, the evidence supported a finding of willfulness and that Wiley earned substantial profits, and the jury may have viewed Wiley as a repeat infringer in need of deterrence.

“In sum, we discern no error” in the District Court’s denial of Wiley’s request to vacate the award or grant a new trial, the appeals court said.

The appeals court also rejected Wiley’s assertion that the trial court should have thrown out Psihoyos’ claims on the grounds that the statute of limitations on those claims had expired.

The appeals court said that the Copyright Act’s statute of limitations “did not bar any of Psihoyos’s infringement claims” because he filed those claims within three years of discovering the infringements, as the law requires.

Wiley had argued that the clock for the three-year statute of limitations begins at the instant of infringement, not at the discovery of that infringement by the copyright holder.

Although the appeals ruling was an overall victory for Psihoyos, he also lost an appeal to restore his infringement claims for the four images that the trial court dismissed from the case.  The lower court dismissed those claims because Psihoyos  didn’t register the images before he filed his infringement claims, as required by law.

The appeals court said the trial court was correct to dismiss those claims because of Psihoyos’s failure to register them prior to filing suit.

April 26th, 2012

Judge Refuses to Let Book Publisher Weasel Out of Copyright Lawsuit

A federal court judge in Chicago has refused a textbook publisher’s request to dismiss a photographer’s claim of massive copyright infringement, saying Robert Frerck’s allegations that Pearson Education infringed about 4,000 of his photographs “are sufficient to put Pearson on notice.” The decision is likely to force the company to do what it has been trying to avoid: divulge its records so Frerck is able to identify all unauthorized uses of his images.

Frerck filed suit last August, and said he licensed the publisher usage rights to various photos between 1992 and 2010. He says the licenses were limited by the number of copies, distribution are, language, duration, and media (print or electronic.)

Frerck alleges that the uses often exceeded the license terms, and that the unauthorized uses weren’t an innocent administrative oversight. “Pearson often knew, from its pre-publication plans and its experience with prior editions, that its actual uses under the licenses would exceed the permission it was requesting and paying for,” Frerck asserts in his claim.

In addition, he claims, the publisher used some photographs with no license at all. Frerck says he doesn’t know the extent of those unauthorized uses, but asserts that “Pearson has created, or easily could create, a list of its wholly unlicensed uses” during the discovery process of the case.

He alleges that two Pearson Curriculum Group employees–Julie Orr, Image Manager, Rights and Permissions and Maureen Griffin, Photo Commissions Editor– have already testified that the company has printed textbooks in excess of photo license limits, and used images in some instances without permission.

“Pearson’s business model, built on a foundation of pervasive and willful copyright infringement, deprived Plaintiff and thousands of other visual art licensors of their rightful compensation and unjustly enriched Pearson with outlandish profits in the process,” Pearson alleged in his complaint.

Frerck’s claim is one of many filed against textbook publishers in recent years for unauthorized use of images, and uses far beyond the limits of usage licenses. Frerck cites claims by ten other photographers and stock agencies–including Norbert Wu, Louis Psihoyos, Grant Heilman Photography, DRK Photo, Pacific Stock and others–that are currently pending against Pearson.

Anticipating Pearson’s response, Frerck alleged in his own claim that the publisher’s strategy for getting claims dismissed is to argue that copyright owners can sue only for infringements for which they can provide evidence at the time they file their claims. And that’s exactly how Pearson sought to have Frerck’s claim dismissed. But Pearson hides its infringements from copyright owners, Frerck argues, so copyright owners can’t produce evidence unless a claim is allowed to go forward, forcing Pearson to divulge its records of image use. Judge Robert M. Dow, Jr. agreed, saying Frerck provided enough evidence of specific infringement to make all of his claims “plausible.” (Civil Action No. 1:11-cv-5319)

Related:
After Flouting Print Run Limits, Publishers Face Dozens of Lawsuits