Make sure you have damages that can be collected before opening a case
Richard Bell is the owner of the photograph involved in this case of an Indianapolis skyline and filed suits against various defendants who received summary judgments that Bell has appealed. One of these defendants is O’Brien, Insurance Concepts, and Cheatham regarding damages from copyright infringement cases. Here, the defendant did in fact infringe upon the plaintiff’s copyright by using the photo on their website; however, the district court found that even so, the plaintiff could not prove damages. “The Copyright Act permits a copyright owner to recover actual damages suffered as a result of the infringing activity and any profits of the infringer resulting from the infringement that are not otherwise taken into account in calculating actual damages.”
Generally, actual damages are determined “by the loss in the fair market value of the copyright, measured by the profits lost due to the infringement or by the value of the use of the copyrighted work to the infringer.” Bell did try to show “hypothetical” costs that the defendant would otherwise have had to pay should they have properly licensed the photograph from Bell.
Both courts decline acceptance of this amount saying that hypothetical values could not be accepted and that Bell did not provide enough evidence to effectively show that any individual would be willing to pay his estimated price for the work.
Ultimately, while someone may have infringed upon your copyright, make sure there are actual damages that can be collected from the defendant before incurring the legal fees associated with filing a case against the alleged infringer.
This article is provided for informational purpose only and is not intended as a form of legal advice. If you have any questions on the subject matter of this article, call Roland Tong, at 949-298-6867 or email Mr. Tong at [email protected]. Mr. Tong has been obtaining patent, trademark, copyright, and trade secret protections for his clients since 2001. He has represented a wide range of clients from start-up companies to Fortune 500 companies in a wide range of industries.