Photographer’s Subjective Belief Of Photos’ Value Not Enough to Show Copyright Damages – Seventh Cir. (Deconstructing Bell v. Taylor – Part II)

In Bell v. Taylor, the Seventh Circuit homes in on the photographer plaintiff’s dearth of damages evidence in his copyright suit about two photographs he took of the Indianapolis skyline.

A copyright owner can recover actual damages suffered as a result of infringement and any profits accruing to the infringer.  To establish an infringer’s profits, the plaintiff must show only the infringer’s gross revenue.  The infringer is then required to prove his “deductible expenses and elements of profit attributable to factors other than the copyrighted work.”  17 U.S.C. § 504(b).

Actual damages in the copyright context usually mean loss in fair market value of the infringed work (here, the two photos), measured by profits lost by the copyright holder due to the infringement.  Evidence of prior sales of the infringed work(s) can satisfy the plaintiff’s actual damages burden but his subjective belief as to the fair market value of a photo isn’t enough to prove damages.

The plaintiff failed to prove actual damages since all he offered was his unsupported subjective belief of what the photos were worth.  He was unable to attribute any lost profits to himself or any profits gained by the infringing defendants.  The plaintiff also couldn’t show that any of the infringing defendants attracted more clients by using the plaintiff’s skyscraper photos.


While the plaintiff was able to establish ownership in the copyrighted photos as well as infringement (he unquestionably took the photos and copyrighted them and all defendants admitted using one or both of them), the lack of damages evidence doomed his claims.  The plaintiff’s unadorned opinion of the photos’ monetary value was insufficient to meet his copyright infringement damages burden.

To survive summary judgment, the plaintiff likely would have had to proven that the defendants gained increased web traffic as a direct result of using the photos and that the increased traffic translated into measurable profits for the defendants.  Since the plaintiff couldn’t do this, he couldn’t establish copyright infringement damages to the extent his claims would beat a summary judgment motion.

“Make Sure You Get My Good Side” – Blogger’s Use of Photo is Transformative, Fair Use – Defeats Copyright Suit (11th Cir.)

As someone who eats, drinks and sleeps social media marketing and blogging, this 11th Circuit case naturally captured my attention.

The plaintiff in Katz v. Chevaldina, 2015 WL 5449883 (11th Cir. 2015), Raanan Katz, a Miami businessman and co-owner of the Miami Heat, sued the defendant – one of plaintiff’s former commercial tenants and a full-time blogger – for using his photograph in 25 separate blog posts that derided Katz’s real estate business practices.  The “embarrassing”, “ugly,” and “compromising” photo (according to Katz) was taken by a photographer who originally published it on-line in an Israeli newspaper, the Haaretz.  Defendant later found the photo on Google images and used it as an illustration in her scathing posts.

After taking an assignment of the photo’s copyright from its photographer, Katz sued the defendant for copyright infringement.  The District Court granted summary judgment for the blogger on the basis that her use of the photograph was satirical commentary and a fair use of the image.  Katz appealed.

Held: Affirmed.


Section 107 of the Copyright codifies the fair use doctrine which posits that use of a copyrighted work that furthers “criticism, comment, news reporting, teaching, scholarship, or research” is not an infringement.  17 U.S.C. s. 107.

The four factors a court considers to determine whether fair use applies are (1) the purpose and character of the allegedly infringing use (here, reproducing the photo of plaintiff on defendant’s blog), (2) the nature of the copyrighted work; (3) the amount of the copyrighted work used; and (4) the effect of the use on the potential market or value of the copyrighted work. (*2).

The Court held that three of the four factors (1, 2 and 4) weighed in favor of a fair use and affirmed summary judgment for the defendant.

(1) Purpose and Character

This factor requires the court to consider whether the use serves a nonprofit educational purpose as opposed to a commercial one and the degree to which the infringing use is “transformative” as opposed to a “superseding” use of the copyrighted work.

A use is transformative where it adds something new to a copyrighted work and infuses it with a different character and “new expression, meaning or message.”  A use of a copyrighted work doesn’t have to alter or change the work for the use to be transformative.

The court found that defendant’s use of plaintiff’s photo was both educational and transformative.  It found that the defendant posted the photo as an adjunct to articles in which she sharply criticized plaintiff’s business practices and she made no money from her use of the photo.  Her use of the photo satisfied the “comment” and “criticism” components of the fair use doctrine.

The use of photo was transformative because the defendant used it to make fun of (“satirize”) the plaintiff and impugn his business ethics.  At bottom, the defendant’s use of the photo was a critical statement and therefore transformative under copyright law.

(2) Nature of Copyrighted Work

Copyright law gives more protection to original, creative works than to derivative works or factual compilations.  Courts consider whether a work was previously published and whether the work is creative or factual.  Here, the photo was previously published in an Israeli newspaper and its use in the defendant’s blog was mainly factual.

Noting that “photography is an art form” rife with creative decisions such as tone, lighting, and camera angle, the Katz photo was a simple candid shot taken in a public forum.  It lacked any badges of creativity that could give it strengthened copyright protection.  The court also pointed out there was no evidence the original photographer sought to convey emotion or ideas through the photo.

(3) Amount of Work Used

This fair use factor considers the amount of the copyrighted work used in proportion to the whole.  This factor is less relevant when considering a photograph though since most of the time the entire photo must be used to preserve its meaning.  That was the case here: defendant had to use all of Katz’s photo to preserve its meaning.  Ultimately, because the defendant used the whole photo as an adjunct to her blog posts, the “amount used” factor was a wash or “neutral”.

(4) Effect of the Infringing Use on the Potential Market for the Work

This factor asks what would happen if everyone did what the defendant did and whether that would cause substantial economic harm to the plaintiff by materially impairing his incentive to publish the work.  The court found this fair use factor easily weighed in defendant’s favor.  In fact, the plaintiff profoundly disliked the photo and did not want it published anywhere at any time.  According to the court, because Katz used copyright law to squelch defendant’s criticism of him, there was no potential market for the photo.


Since three of the four fair use elements weighed in favor of the defendant, the court found that her use of the plaintiff’s photo was a fair use and immune  from copyright infringement liability.

This case provides a useful detailed summary of the four fair use factors along with instructive analysis of each factors sub-parts.  The Katz case is especially pertinent to anyone facing a copyright claim predicated on a claimed infringing use of a Google images photograph used to enhance on-line content.






Moving for Default Judgment In Federal Court – Plausible Claims and Damage Calculations (A Brief Case Note)


(photo credit: (via Google Images – 5.15.15)

Malibu Media, LLC v. Funderburg, 2015 WL 1887754 (N.D.Ill. 2015) discusses the governing standards for obtaining a default judgment in Federal court in a decidedly post-modern fact context.  The plaintiff adult film producer sued the defendant for copyright infringement based on the viewer defendant’s unauthorized movie downloads.

Defendant orchestrated hundreds of movie downloads over a span of about three months through the BitTorrent file sharing system.  BitTorrent basically allows a user to download component parts or “bits” of a file, send them to others (“peers”) who then splice the bits together to make a cohesive whole file. When Defendant failed to respond to the Complaint, the plaintiff sought a default judgment of $27,000 – triple the sum of minimum statutory damages under the Copyright Act.  See 17 U.S.C. s. 504.

The court granted the motion for default but only awarded a fraction of the damages sought.  In doing so, the court stated the operative Federal court default rules:

Federal Rule of Civil Procedure 55 allows a court to enter a default judgment where a defendant fails to plead or otherwise defend a suit;

– On a default motion, the court takes as true, all well-pled allegations as to liability;

– A default judgment establishes as a matter of law that a defendant is liable for each of a plaintiff’s claims;

– A plaintiff seeking default judgment, must show a “plausible” claim;

If plaintiff’s damages are easily calculable, he can usually get a money judgment based on an affidavit alone;

– A default judgment can enter against a minor or incompetent person only if represented by a guardian, conservator or other fiduciary;

– Since minors frequently use the internet for downloading movies, a plaintiff usually must do more than offer blanket assurances that the defendant isn’t a minor.


Here, plaintiff stated a plausible copyright claim: (1) that it owned the copyright in the 12 movies in question; and (2) that defendant infringed the copyright.  Courts distinguish between Internet subscribers and infringers: just because someone is an account holder of a given IP address doesn’t mean the account holder is the one downloading files.

Here, though, the court noted that defendant was connected to the infringing IP address and that there were hundreds of file downloads over a short period of time.  Considered with plaintiff’s unchallenged complaint allegations, the court found that the defendant, an adult, was the proper defendant.

The Court reduced plaintiff’s damage claim.  Under the Copyright Act, an infringer is subject to statutory damages raising from $750 to $30,000 for any single infringed work.  17 U.S.C. s. 504(c).  Here, the court found that while the plaintiff probably wasn’t a “non-producing troll” (someone who enforces copyrights just to extort money from people who are too embarrassed to fight a Federal porn suit), the court still found that a damage award that was three times the statutory floor was excessive.

The court ultimately awarded damages of $9,000 – $750 for each (all 12) movie that was downloaded in addition to attorneys’ fees of over $2,000.


This case provides a good summary of basic requirements for obtaining default judgments in Federal court.  In a default case where a statute provides a range of damages, a default-seeking plaintiff will likely need to show intentional conduct to get damages that eclipse the statutory minimum;

While being tied to a specific IP address, alone, isn’t enough to definitively identify a defendant, it will go a long way in doing so; especially if there is other evidence connecting a defendant to a given address and the IP account holder doesn’t put up a fight (as was the case here).