I recently ran across a story that illustrates the importance of choosing your legal battles carefully where copyright is concerned.
In Golden v. Michael Grecco Productions, Inc., photographer Michael Grecco’s attorneys contacted blogger Lee Golden about using their client’s photo without permission on his entertainment blog. When they demanded he pay $25,000 for infringing on Grecco’s copyright, Golden sued.
Arguing fair use, he asked that the court find his use of the photo non-infringing. Moreover, if the court did rule his use of the photo was infringement, he only wanted to pay $200 in damages because the infringement was, in his words, innocent.
Grecco countersued, claiming infringement and asking for attorney’s fees and statutory damages.
When Winning an Infringement Case Feels Like Losing
The court sided with Grecco… sort of. Judge Nicholas Garaufis did not believe Golden’s claims of innocence “reasonable,” arguing that the experienced proprietor of an entertainment site should have known the image was not free to use. In other words, he was guilty of infringement.
However, the court only awarded $750 to Grecco — and did not award attorney’s fees. The judge’s reason was that Golden had not only immediately taken the image down after being notified, but his use of the photo had also likely caused “little or no actual damages” to Grecco.
By aggressively seeking out damages for the use of his copyrighted work, Mr. Grecco likely ended up losing money due to the cost of the case.
Reading this reminded me of the case of Kirtsaeng v. John Wiley & Sons, Inc. Supap Kirtsaeng, an entrepreneurial U.S. student, got the idea to buy cheaper versions of textbooks overseas and sell them at a profit on eBay. Naturally, the maker of those textbooks — John Wiley & Sons — was not thrilled with this, so they sued.
While Kirtsaeng ultimately won his case, he had to appeal all the way to the Supreme Court to do so. Also, just like with Grecco, he was not awarded any attorney’s fees in the ultimate decision, so his victory likely had a large price tag.
However, Kirtsaeng probably felt like far more of a “winner” than Grecco, because by the time his case was heard by the Supreme Court, he was battling previous rulings that would have cost him $600,000 in damages. His “award” was not having to pay that hefty amount.
Both cases, though, serve as an example of how important it is to make sure you have a strong case that you are confident in before seeking damage through legal proceedings. Sometimes, it is far less expensive for both the claimant and the defendant to hash things out through their representatives while avoiding legal proceedings altogether.