A federal jury in Maryland has awarded $900,000 in actual damages to an Oregon-based plant retailer for its claims against a competitor over unauthorized use of two dozen copyrighted images. The jury verdict, delivered last week, also included a $300,000 statutory damages award, but the plaintiff may elect one jury award or the other (not both) under copyright law.
Under a Foot Plant Co., owner of a product line of perennial plants called Stepables, sued competitor Exterior Design, Inc. in 2014 for unauthorized use of 24 photographs. The images were created by Under a Foot president Frances White for use in marketing materials for Stepables.
Maryland-based Exterior Design infringed the photographs a total of 133 times beginning in 2011, according to the plaintiff. The photos appeared on web pages, posters and in brochures used to market an Exterior Design product line called Treadwell Plants.
Under a Foot Plant says it notified Exterior Design several times between 2011 and 2014 of the infringements, and demanded that Exterior Design “cease and desist,” according to the complaint.
In addition to copyright infringement claims, Under a Foot Plant charged Exterior Design with unfair competition and unjust enrichment.
Exterior Design denied all the claims.
At trial, photographer Jeff Sedlik appeared as an expert witness for Under a Foot Plant Co. He presented evidence to prove that the images used by Exterior Design were, in fact, from the Under a Foot Plant photo library. He also testified about the fair market license value of Perennial Farm’s unauthorized uses, noting that the use of the photographs “in competing marketing materials increased the likely cost of a license drastically,” according to a statement released by White.
“This was a huge win for artists, photographer, and creators,” White said in the statement. “These photograph were the result of countless hours of time, attention, planning and preparation.”
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