This will not be the first time I’ve said that “just because it’s on the internet doesn’t mean it’s free.” Today I’ve got a case to prove it to you. I wish this case didn’t also prove that infringement claims aren’t always worth pursuing, but alas…
The case in question is BWP MEDIA USA, Inc. v. P3R, LLC, out of the Central District of California. P3R swiped some photos off BWP’s website and BWP sued. Since what P3R did was copyright infringement, (BPR owned the photos, they were sufficiently creative to be protectable, they weren’t in the public domain and the use wasn’t “fair”), and since P3R didn’t show up to answer the complaint, the Court granted BWP a default judgment against them.
The infringement was willful (it wasn’t like P3R accidentally swiped the photos), and so BWP could have asked for up to $150,000 in statutory damages, theoretically. But the Court wouldn’t have necessarily allowed a damage award that high to stand, especially on a default judgment when P3R wasn’t there to defend itself. So BWP played it strategically, and asked for an award it was sure the Court would find reasonable – $750.00 per photo, or $2,250.00. The Court was fine with that.
So BWP gets $2,250 in damages. Just in case anyone still thinks that photos on the internet are free for the taking.
But BWP, reasonably enough, also wanted its attorneys’ fees, of which it had incurred, reasonably enough, $6,532.50*
** The Court seemed to think it was reasonable, anyway. And attorney’s fees are collectable under the Copyright Act in certain situations.
The problem was, the local rules of Court allowed an award of only $300 plus 10% of the award over the first $1,000, for a grand total of $425.00. And BWP evidently couldn’t sufficiently show that it should be allowed to deviate from the local rule. So BWP has been awarded a total of $2,675.00, but owes its lawyer $6,532.50. Assuming BWP can even collect the award from P3R, this wasn’t a great deal for them.
What BWP might as well have done with its cash
One could discuss why they didn’t ask for a higher award – $750 per work is as low as you can go on the statutory damages scale. I’m sure they asked for what they thought they could reasonably get. But to me, this case highlights, sadly, what songwriters, photographers, bloggers and freelance writers have known for a long time – there are a lot of clear cut copyright cases, but there aren’t very many that are worth fighting.
The Copyright Office has in the past few years looked into starting a “small claims” court, and last year submitted a report to Congress proposing a “Copyright Claims Board” that would be run by the Copyright Office. The proposal would cap damages at $15,000 per work and attorneys’ fees at $5000. Obviously the $5000 would not have gotten BWP’s lawyer fully paid, but it would have been a lot closer than what the Court rules allowed.
Is the Copyright Claims Board the way to go? What’s a songwriter or a photographer to do? I’d appreciate your thoughts. Feel free to comment.
“The problem was, the local rules of Court allowed an award of only …”
I thought copyright infringement cases required federal court. A federal court has such a rule?
Very astute question. The case was in the federal district court of the California Central District. But lawyers get tripped up sometimes forgetting that even federal courts have local rules that have to be followed!
Can you explain this in more detail? The local rule says that the fees are to be awarded “exclusive of costs”. Under the text of the Copyright Act, fees are awardable as part of costs. The text of the rule therefore does not apply. That would seem to be an issue ripe for appeal.
There is a second concern, and that is the frustration of the congressional objective in such cases. The court certainly has statutory “discretion” to award fees (a separate issue) so the plaintiff could get screwed again, but the intent was that such discretion gets applied on a case by case basis: I don’t think Congress intended that a court set a schedule applicable to every case. It certainly frustrates the policy objectives behind permitting fee awards. I don’t think a local rule of court can trump a federal statute.