On "innocent" infringement, re. damages range

[DavidVGoliath]

Interesting information to be found at the foot of page 20 / start of page 21 in the following

http://www.scribd.com/doc/236736447/AFP-v-Morel-1-2M-Damages-Affirmed#fullscreen

For those without the time or inclination to read, here's the take-away

"The Copyright Act prescribes three ranges for statutory damages, depending on whether the infringement was innocent, willful, or neither. The statutory damages range is $200 to $30,000 per work for innocent infringement, $750 to $150,000 per work for willful infringement, and $750 to $30,000 per work for regular infringement"

There's further information which lays out the six factors (prescribed by the 2nd Circuit) as to how to determine an amount of Statutory Damages

1. The infringer's state of mind
2. The expenses saved, and profits earned, by the infringer
3. The revenue lost by the copyright holder
4. The deterrent effect on the infringer and third parties
5. The infringer's cooperation in providing evidence concerning the value of the infringing material
6. The conduct and attitude of the parties

My takeaway from this? If you receive an infringement notification from someone who has all their ducks in a row (correct and timely registration etc.) and they're offering you a chance to avoid litigation via negotiating a settlement, it's probably not a good idea to stick your head in the sand or, worse still, tell them to "get lost" (or variants thereof)

Just my €0.02.

[Jerry Witt (mcfilms)]

My take away is that if the offer is reasonable, then it would make sense.

If the rights holder truly has their "ducks in a row", if they are willing to show the registration, if they are willing to listen to why and how an image appeared on a site, then by all means I think it is best for all concerned to settle.

If, instead, the supposed rights holder is unwilling to show how they have rights to the image, if they ask for extraordinary sums of money, and if they threaten impending legal action on a very short timeline, my take away on THAT is to tell them to pound sand.

[lucia]

There's further information which lays out the six factors (prescribed by the 2nd Circuit) as to how to determine an amount of Statutory Damages

1. The infringer's state of mind
2. The expenses saved, and profits earned, by the infringer
3. The revenue lost by the copyright holder
4. The deterrent effect on the infringer and third parties
5. The infringer's cooperation in providing evidence concerning the value of the infringing material
6. The conduct and attitude of the parties

My takeaway from this? If you receive an infringement notification from someone who has all their ducks in a row (correct and timely registration etc.) and they're offering you a chance to avoid litigation via negotiating a settlement, it's probably not a good idea to stick your head in the sand or, worse still, tell them to "get lost" (or variants thereof)

Just my €0.02.

Of course, if you mean that even innocent infringers might be wise to offer to settle, I agree. But that doesn't mean they need to pay whatever the copyright owner demands nor need they fear the courts inevitably ding the infringer the maximum amount.

If:

1. The infringer's state of mind was they didn't have any clue they were infringing and had no reason to believe so and copied without intending to profit  or save expenses
2. The infringer saved $0 expenses saved, and and earned $0 in profits
3. The copyright holder lost virtually nothing owing the the infringement
5. The infringer's cooperates in showing they made no  profit, anticipated no profit, they weren't trying to save money and, in fact, saved no money
6. and the copyright owner refuses to provide any proof the own the copyright, proof of value and so on. 

I suspect court would tend to smile on the infringer, and assess the statutory minimum of $200.

As for this:
4. The deterrent effect on the infringer and third parties
It is difficult to imagine how applying a heavy fine to an infringer who fits 1-3, 5&6 could deter third parties. Beyond that, merely being threatened and certainly having to go to court will likely be enough to motivate any innocent infringer to be more careful in future.

Obviously, openly saying "get lost" to a copyright owner would be unwise as this amounts to poor conduct and would cut against a defendant on point '6'.  But I would suggest some of the more heavy and intimidating letters sent by entities like Getty Images might also bee seen as poor conduct.  So, one might equally well advise some copyright owners to tone things down a bit-- particularly if they intend to later take an innocent infringer to court.  Courts might not smile favorably on a copyright owner who sends a very scary letter out to a mourning widow whose infringement constitutes posting something on a lightly trafficked blog.

[DavidVGoliath]

So how about this:

The copyright owner, in their opening message, shows that they have a valid, timely registration of the images in question (including certificate numbers) and requests that just the lost license fee alone is paid for the use up to the date of discovery... which, for the majority of non-advertising and non-commercial uses, would be in the low three figure range: reasonable?

Would it also be reasonable to make mention that, should no reply be received to the message, the copyright holder may refer the matter to an attorney?

[Jerry Witt (mcfilms)]

From your lips to Getty's ears.

Sure this would be reasonable. And I think the majority of people on this forum would favor this as an opening gambit. There will still be small-time, not-for-profit bloggers that will balk at a several hundred dollar valuation and point to "micro-stock". Others might point out that the images were accidentally published and were for position only, or maybe they were used (in the users opinion) within the context of "fair use."

But honestly, if someone has been using the images in a for-profit venture, then certainly they owe the original artist something. (And that "something" is NOT to accuse the photographer of being a plagiarist, liar and thief.)

[lucia]

So how about this:

The copyright owner, in their opening message, shows that they have a valid, timely registration of the images in question (including certificate numbers) and requests that just the lost license fee alone is paid for the use up to the date of discovery... which, for the majority of non-advertising and non-commercial uses, would be in the low three figure range: reasonable?

Would it also be reasonable to make mention that, should no reply be received to the message, the copyright holder may refer the matter to an attorney?

I don't think there is anything wrong with saying they may refer the matter to an attorney. Showing lost license fees-- especially if those really are lost license fees (as opposed to hypothetical amounts one imagines they might ask but which no one ever has or would pay) is a reasonable way to demonstrate loss to the photographer. If the requested amount is reasonable, and the copyright holder demonstrates they are the copyright holder, I think  judge would see the copyright holder as acting reasonably.   

I can't say what would happen in court in this circumstances, but I would at least consider the copyright holder to be acting reasonable in those circumstances, and it appears they would be able to prove damages. In that case, even an innocent infringer would likely be required to make the copyright holder 'whole'-- just as someone who hits your car must make you 'whole'.

Innocent infringement is not a get out of jail free card. But it's also important to recognize there are cases where the infringement is innocent, and the demands ridiculous. Likewise, there are cases where copyright infringement is flagrant. There are even cases where an innocent infringement could cause serious damage to a copyright holder, and in that case the 'innocent' could be on the hook for quite a lot (just as someone who accidentally cases property damage can be on the hook for quite a lot.)