I think this is the biggest reason why a lawsuit for single image has not gone all the way through a jury tirial and verdict or extremely rare. Asking for thousands of dollars for a photo with a market value of $10 would be thrown out as a colossal waste of tome.
I think the reason that you haven't seen single-image lawsuits go all the way to a jury trial is that defendants will want to minimise their risk of being slapped with a hefty judgement against them. In the event that a plaintiff can prove wilful infringement, damages can be as high as $150,000, and that's before any provable DMCA violations are factored for.
If a case against an infringer is fairly airtight and there's a good chance to argue/prove that DMCA was violated (e.g. a watermark/copyright notice being cropped out of a published use - which also proves wilfulness) then you're looking at combined damages of
at least $3,250... plus the prospect of paying part or all of the plaintiff's legal fees, as well as your own legal fees to defend the suit. That could quickly become a five-figure sum that you're on the hook for. Conversely, settling the matter at the pretrial stage is less costly to all parties.
So, that image that may have cost you just $10 to license, but you took it anyway? A court may not look favourably on that action and, if the plaintiff has their ducks in a row regarding timely registration, they might well render a verdict that is as much punitive in nature as compensatory, because judgements tend to also factor for deterring others from engaging in similar acts.
Put it this way: if the sole penalty for stealing something valued at $10 was that you would be made to pay the $10, then there are a great many people who would happily roll the dice in the hopes of never being caught.
Also, here's a thing to consider: the damages ranges for infringements per 17 USC 504 were written into law back in 1946 and statutory damages back then were of ranged between $250 - $10,000. If those numbers had kept pace with inflation, the 2018 damages range would be $3,230 to $129,330. Wilful infringements had a damages range of $10,000 to $50,000 ($129.330 to $646,170, adjusted) and even "innocent" infringement was pegged at $100 ($1,293, adjusted)
The current figures for damages in 17 USC 504 were laid down in 1999 so it's fair to say that we may see them being revised in the near future so as to factor for inflation and other variables. Let's see how that would pan out using numbers adjusted to 2018.
"Innocent" infringement minimum damages of $200 would become $300
Statutory damages range of $750 - 30,000 would become $1,135 to $45,300
Willful damages cap of $150,000 would become $226,900
Prior to the 1999 adjustments, the damages scale was last modified in 1988... so I'd say it's likely going to be revised again any day now, and wouldn't be surprised if revisions are announced and put into effect before 2020. I can easily see the statutory damages range becoming $1,500 to $50,000 and willful infringement becoming capped at $250,000.
I'd also bet that the 'innocent' infringement minimum will move closer to $500 than the inflation-adjusted $300. Before Napster burst onto the scene in June of 1999, discussions about copyright and infringement were really not part of the public consciousness, so the ability to argue innocence in an alleged infringing act was (in my opinion) much higher than it is today, and laws are always written with deterrence in mind.
Topic: Pixsy Letter (photographer has history of suing) (Read 62187 times)