Many social media sites and pages encourage people to post and share photos. This activity creates an issue where the owner of the photos has not given permission for that use, as a photographer alleged in a recent Fifth Circuit case Stross v. Redfin Corp., ___ Fed. Appx. ___ (5th Cir. Apr. 9, 2018) (2018 WL 1721749).
In the United States, photographs can be eligible for copyright protection by the owner. Unless the photo was taken by an employee or it is subject to an agreement, the owner of the photo will be the photographer.
Section 106 of the copyright law gives the owner of the work several exclusive rights, in general:
- To reproduce the copyrighted work in copies;
- To prepare derivative works based upon the copyright work;
- To distribute copies of the copyrighted work to the public; and
- To display the copyrighted work publicly.
Registration of the work with the U.S. Copyright Office also gives the owner the right to sue anyone infringing on those exclusive rights, and seek either actual damages or statutory damages. Statutory damages range from USD$750 to $30,000 per work. 17 U.S.C. § 504(c)(1). If the infringement is found to be “willful,” damages can increase up to $150,000 per infringed work. Long-time readers of this blog may recall our coverage of another case involving copied photos, taken by famous photojournalist Daniel Morel. In that case, the jury awarded $150,000 to Mr. Morel for each of his 8 infringed photos.
In this case, the plaintiff was an architectural photographer and real estate broker. He licensed many of his photos to the local multiple listing service (MLS) for use by area real estate agents and brokers. The license agreement between the photographer and the MLS gave the MLS and its licensees a broad license to include the photos in real estate listings and reports.
An agent or broker downloading listings from the MLS had to sign a sublicense agreement. That sublicense agreement incorporated the MLS’s rules, which permitted use of the MLS data solely in connection with the sale, lease, and valuation of real property. With respect to sold homes, the rules were even more specific: use of that information was limited solely to estimating value of other homes.
In May of 2013, the photographer noticed that his “sold” home photos appeared on a broker website. Upon further investigation, the photographer discovered that the site had posted 1800 of his photos. According to the complaint, not only were the photos being used for purposes other than estimating value of other homes, the broker website encouraged users to post these photos on social media, through a “share” button the website. The broker website provided “collection” albums for users to save these photos for “design ideas” and “fun.” The website also stated that the photos were available “courtesy of” the photographer.
The photographer sued the broker in federal court on three counts of violating the U.S. copyright law:
(1) Direct infringement by copyrighting, displaying, and distributing the photos on the website;
(2) False copyright management information through false “courtesy credits” attributed to the photographer; and
(3) Contributory copyright infringement for knowingly encouraging third parties to “share” the photos on social media.
The U.S. safe harbor for third party content would apparently not be available to the broker in this case, because the website—and not the users—posted the photos on the broker website.
The broker website claimed that it had a license to use the photos by virtue of the photographer’s license to the MLS.
The Court Rulings
The broker website moved for summary judgment. The federal trial court granted the motion, based on a decision that the photographer lacked standing because he was not a party to the sublicense agreement between the MLS and the broker. The photographer appealed.
The appeals court agreed with the photographer. This court ruled that the trial court had erred by focusing on whether the photographer had contract standing in a copyright case., Instead, the appeals court pointed out, the photographer sued only under the copyright law. As the owner of the copyrighted photos at issue, the photographer certainly had standing under the copyright law to bring infringement lawsuits.
As a result, the appeals court reversed the grant of summary judgment, and remanded the case back to the trial court.
Note that, if the photographer had registered all 1800 of the photographs, statutory damages would begin at USD$1,350,000 and could increase, if infringement was found to be willful, to up to $270,000,000.
Anyone operating a website should always get permission from the owner of a photograph before posting it. Failing to do so can be very expensive.