Photo not registered with Copyright division

[313speed]

Higbee responded to my request for additional information by providing an email that states the allegedly infringed photo has not been registered with the US Copyright Office. I reached out to a lawyer who provided the following information -

If the copyright owner is a foreign national then it does not need to register its copyright before filing an infringement lawsuit against you.

Registration of the copyright before your infringement was required, however, for the copyright owner (U.S. or foreign) to qualify for statutory damages or an award of its attorneys' fees to enforce the copyright. So ... your own attorney needs to determine whether the copyright was registered before you displayed it on your website. If so, the copyright owner has significant leverage against you. If not, it doesn't because it would not only have to prove its "actual damages" it would also have to pay all of its attorney fees to prosecute the case against you (though you would have to pay yours as well).

I have confirmed this elsewhere, though I would appreciate professionals chiming in on this point. What I get from this is that any settlement would fall under Davis v. Gap, Inc., 246 F.3d 152 (2d Cir. N.Y. 2001)-

“[C]ourts have construed “actual damages” by examining the fair market value of a license fee that the copyright owner would have obtained for the infringer’s use of the copyrighted material” . . . . “The question is not what the owner would have charged, but rather what is the fair market value.”

I used the URL Higbee provided and found the alleged photo would cost less than $200 to purchase through Getty. Higbee used the same tool to provide produce an estimated license fee of around 10 times that. They chose the large photo format and all digital media option to inflate the price rather than the small photo and commercial blog use they are alleging.

They did, however, drop their demand amount by about $50.

[Matthew Chan]

They dropped it $50 from what number?  If the settlement offer was in the low hundreds, it is more significant than if it was a multi-thousand dollar number.

I used the URL Higbee provided and found the alleged photo would cost less than $200 to purchase through Getty. Higbee used the same tool to provide produce an estimated license fee of around 10 times that. They chose the large photo format and all digital media option to inflate the price rather than the small photo and commercial blog use they are alleging.

They did, however, drop their demand amount by about $50.