Photo Infringement Lawsuit Dismissed

Read the full decision: Bell v. Taylor

Federal appellate court dismisses photographer’s lawsuit against a real estate professional over her use of the photographer’s copyrighted photograph on her website without permission because the photographer did not demonstrate actual damages.

A photographer (“Photographer”) took a picture of the Indianapolis skyline during the daytime in 2000 (“Daytime Photo”). The photo was posted on his website in 2000. In 2011, he registered a copyright for the Daytime Photo with the U.S. Copyright Office.

Shortly after registering the copyright, the Photographer filed a lawsuit against three businesses who allegedly had posted the Daytime Photo on their websites, including a real estate professional (“REP”). The REP immediately removed the photograph in 2011 after she was contacted by the Photographer. One of the other businesses had shut down his website after the website failed create business for his company and the other website did not use the Daytime Photo (instead, that website was using another photo from the Photographer that showed the skyline at night).

The trial court entered judgment in favor of the website owners. Even though the court agreed that the Photographer owned the rights to the Daytime Photo and the website owners had used the photo without permission, the court ruled that the Photographer had failed to establish damages. The Photographer appealed the trial court’s ruling.

The United States Court of Appeals for the Seventh Circuit affirmed the trial court. To establish a claim for copyright infringement, a party must show ownership of a copyright and an unauthorized copying of the constitutional elements of the work which causes the copyright holder damage. Damages for copyright infringement arise from any harm caused by the infringing activity as well as proving lost profits. Lost profits are calculated by determining the fair market value of the copyright and then showing the profits lost by the unauthorized use of the copyrighted work.

The court found that the Photographer had failed to establish the fair market value of the Day Time photo and thus could not show damages. The Photographer claimed that the fair market value of the Daytime Photo was $200, as that was the charge that he listed on his website for licensing the photo. However, there was no evidence that anyone had ever paid $200 to license the photo and the only other evidence offered by the Photographer was his own belief that $200 was the fair market value.

Since the Photographer’s only evidence for the fair market value was his own subjective opinion about the value of the Daytime Photo, the court ruled that the Photographer had failed to establish the fair market value of the Daytime Photo and so could not allege any damages arising from the unauthorized use of the Daytime Photo. Because damages are a necessary element for a copyright infringement claim, the court affirmed the lower court entry of judgment in favor of the REP and the other two website owners.

Bell v. Taylor, 827 F.3d 699 (7th Cir. 2016).

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