Over the last few decades, the internet has become an increasingly large part of our lives and digital media has proliferated. It has become easier than ever to find and use copyrighted material without realizing you are doing anything wrong.
I have spoken with countless individuals and businesses who took content they believed to be free to use from the internet – only to later be hit with a cease and desist letter or an infringement claim from the copyright holder.
On the flip side, almost every photographer with a website or an Instagram has likely had their work used without permission at least once or twice. The process of discovering that theft and getting infringers to stop – or pay up – can be exhausting and disheartening.
Enter the case of photographer Scott Hargis against Pacifica Senior Living, a veritable poster child for why United States Copyright Office (USCO) registration is so important.
43 Images Used Without a License Agreement
Hargis is a well-known architecture photographer. After discovering that Pacifica Senior Living used 43 of his photos without permission, he filed a copyright infringement case against them in the US District Court for the Central District of California.
From the beginning, it seemed to be a fairly open-and-shut case. Pacifica Senior Living was using Hargis’ registered photos. There was no agreement in place for the organization to do so.
Hargis attempted to settle with Pacifica Senior Living, but again and again the organization argued that no infringement took place, prompting the case to drag on. Still, Hargis persisted. He was recently rewarded when the jury not only decided in his favor, but awarded him an astounding $6.3 million in damages.
Why such a high amount? A couple of things are at play here.
Sending a Message
One reason that damages in this case are so high is likely due to the jury’s decision to send a message, both to Pacifica Senior Living and other would-be infringers: If you willfully violate copyright and play the denial game, we will punish you to the full extent of the law.
And this is exactly what they did. The highest penalty for copyright infringement of a timely-registered image is $150,000, and each of the 43 images taken by Pacifica cost them around that amount. Technically, $150,000 x 43 = $6.45 million, but you can see that the jury got close.
…About the Value of USCO Registration
However, sending this message was only possible because Hargis had registered his photos with the USCO. What effect did USCO registration have?
If Hargis’ photos had not been registered, his only recourse would have been to sue Pacifica for actual damages – for example one way to calculate actual damages is the market value it would have taken to license each photo. This would have been undeniably less than the amount he ultimately received.
Because he had registered his photos, he was able to sue for statutory damages – in which the amount is determined by statute – i.e., the Copyright Act. According to the statute, damages for violating the copyright of individual works can range from $750 to $30k, but that can increase to $150k per work if the infringement is determined to be “willful.”
In this case, the jury found that Pacifica’s actions were absolutely willful, which is where the “message” part of this comes into play.
Lessons and Takeaways for Both Sides
If you are a creator, the biggest takeaways here are: obtain copyright registrations for all of your works that you publish, and keep pursuing justice if you can afford it.
Pacifica’s actions make it seem like they thought they could simply wait Hargis out by allowing the case to drag on, but in the end that came back to bite them with incredibly high fines. The lesson here: if you choose to use copyrighted works without permission, stonewalling may actually work against you in the long run.
If you own a business, make sure you do your due diligence when finding media to use in promotional materials. And if you are a creator, take advantage of the new year momentum to register your creative works with the US Copyright Office.