Its not my fault that photographers live in a bad neighborhood (the internet). An analogy: If I buy a used part and it turns out to be stolen (unbeknownst to me), I return it. I'm not fined and harassed for "statutory" or "actual" damages as far as I understand it. I'm not a criminal. My "punishment" and "lesson learned" is that I lost the part I bought. I'm more careful and knowledgeable next time.
Except that it's not just photographer's that inhabit the internet neighbourhood - we all do; just like a real-life community, there are laws in place to govern and limit what actions we can take so that the overall best interests of everyone are served.
As a sidenote on the analogy you used: much would hinge on the price you paid for the used part, and whether you had any proof of payment, to avoid the potential of facing criminal charges for being in receipt of stolen property. For some states, the burden of proving criminal intent for such charges is quite low or even non-existent.
An example: I hire an overseas firm to design a website for me. He uses infringing images, but tells me they're his own, or he has the rights to them, or whatever. Maybe he doesn't even say anything if I'm not knowledgeable enough to ask. I get a demand letter from true copyright holder. I explain the situation and take down the image. The copyright holder asks for proof and I show him the invoice from the overseas firm. I get warned (not fined) and we part ... maybe even with me as a new customer. I know that isn't the current copyright law, but that's how I think it should work.
It can work that way and, legally, if you have all your ducks in a row and can unequivocally
prove what is termed
innocent infringement, then a rightsholder should know that pursuit of a claim against you is really in no-one's best interests.
If a rightsholder still pursues you after you've produced evidence that you absolutely, genuinely had no idea that you would be committing an infringement based on accepting the work of a third party... well, I personally don't agree with their stance, even though the letter of the law might permit them to do so.
Besides, the rightsholder has to know that under US law, their claim might get struck down to as little as $200 even if they prevail. Far better to educate the infringer and work with them than roll the dice through the courts.
I'm talking about unremarkable shots. I know you still disagree, but I'm not entirely convinced that a court would disagree with my position in many cases.
Even an 'unremarkable' shot has value - whether or not it might be unique. If Getty has a shot of a baseball against a white backdrop for $49, then 123RF has a similar image for $4.99, and Fotolia has a similar image again for $0.99... then why would anyone appropriate the Getty shot?
The answer would be that the infringer either didn't know about copyrights, didn't care about copyrights or (worse case scenario) did know but simply did not want to pay even $0.99 for a picture to use on their website.
I'm not sure how the courts would view all of the above but, in general, matters of appropriation of property seem to lean towards the "
you have the choice to not do it" when it comes to the crunch.
On your burger example: should I be fined $30,000 because the hamburger I bought from a street vendor in India looks too much like a big mac?
I get what you're saying here, but this is an apples-to-oranges comparison when it comes to IP laws. Or maybe it's a Whopper to Big Mac comparison.
Statutory damages for registered image infringements are the current law. I understand that, I just don't agree with it in the case of innocent infringement.
I really have a problem with the term
innocent infringement, as there can be varying degrees of actual innocence. The
truly innocent are usually ignorant of copyright law and are thus
unwitting in their actions.
Thankfully, at least the court is allowed to lower statutory damages to $200 per innocent infringement, but I still disagree with it.
I can sympathise with you finding it disagreeable, I really do.
For unregistered images, it's my understanding that my opinion is in line with the courts to award "actual damages" which is fair market value.
Almost correct: you'd need to remove
fair, because the value is largely determined by what the photographer might have otherwise licensed the image for. Consider that Annie Leibovitz could command a far higher rate for her works than an emerging commercial photographer might - and this would be factored for in almost any suit for a work that wasn't
timely registered (you still need to file a registration before you can initiate a lawsuit)
I really want photographers to be successful by providing a product that people want to buy. I really do. I'm really happy for them when that happens. I just don't like to see some poor unknowing chap harassed for tens of thousands of dollars because he unknowingly used an unremarkable picture of a bowling ball in some silly blog post that 10 people read (a made-up example).
Photographers also want the same thing and would be a very happy bunch if infringements didn't occur. We're not really a litigious bunch (honestly!) and would far prefer to create and share our work without the risk of it being appropriated, exploited or otherwise abused.
On this point: I've had to deal with more infringements by large businesses, corporations and media outlets than I have private individuals (hence my screen name here). Copyright protects me against
their predations... which is perhaps the original intent behind the levels of statutory damages.
This is why I support both a small claims process and widespread education so that Joe Average doesn't fall foul of these laws.