CCB Awards Photographer $3K in Default Decision

Back in March, the new Copyright Claims Board decided its first case, awarding photographer David Oppenheimer some $1,000 in damages after a photo of his was used on the website of a lawyer without a license.

Since then, the CCB has issued final determinations in two other cases, one of which was a last-minute settlement and the other was a voluntary withdrawal of the claims. 

Late last week, the CCB handed down yet another final determination. However, this one is not in a contested case and, instead, is a default judgment. This is because the respondents, despite not opting out of the procedure, failed to show up for any of the required hearings or submit any of the required documents.

Even though this case was not a contested one, the outcome is very illustrative of both the nature and the likely direction of the CCB. Though CCB cases aren’t precedent for one another, at this early stage, it’s still a pretty clear indication of how the CCB will be making its decisions moving forward, especially when compared to the case that came before it.

As such, it’s worth taking a deep dive into the case, Hursey v. Lavaca LLC (22-CCB-0056), to understand what happened, how the CCB made its decision and what this likely means moving forward.

The Case History

The CCB case was filed on July 15, 2022 by photographer Dana Hursey, who alleged a website operated by Lavaca LLC used a photograph he took of a family picnic without obtaining a license.

According to evidence filed in the case, Hursey became aware of the infringement in August 2021 through Visual Rights Group, who Hursey had monitoring for his images. He contacted Lavaca on February 9, 2022 through the law firm Image Theft Law Firm.

In that initial settlement demand, he did not specify an amount, but did seek removal of the image and an accounting of how the image was used, who helped build the site and where the company found the image.

Lavaca responded via email the same day with a letter from their lawyer demanding that Hursey provide proof of ownership over the image, and threatened to report Hursey’s attorney to both the Bar association and their local district attorney.

However, that would turn out to be the last contact that Hursey would have with Lavaca, at least the last that is in the record. 

In July, Hursey filed the case with the CCB. The claim was quickly accepted and, in September, he provided service to Lavaca on the case. By late November, the service had been completed, and the opt-out period had expired, prompting the CCB to order the payment of the second filing fee and to begin the “active” phase of the proceedings.

But that active phased turned out to not be very active. Though Hursey submitted a great deal of evidence in the case, Lavaca never even registered with the CCB. As deadlines were missed, the CCB issued its first and second default notices in January and February respectively. 

Last month, the CCB handed down a proposed default determination, which gave Lavaca a last chance to submit any evidence to alter the determination. When that did not happen, the determination became final last week.

That decision awarded Hursey some $3,000 in statutory damages, an amount that is now enforceable in a court of law.

On the surface, it seems like a fairly mundane case. It wasn’t actively contested, nothing in the decision is particularly surprising, and the case feels very pedestrian overall.

However, when you compare it to the Oppenheimer decision from March, some pretty key differences show up that are well worth noting.

What This Case Means

The comparison to the Oppenheimer case is an obvious one. Both cases involved photographers filing a claim against a website that was making use of an image of theirs without a license.

However, the outcomes of the cases are extremely different. Oppenheimer was only awarded $1,000 in statutory damages, even though the case started out in federal court and was moved to the CCB. 

Meanwhile, Hursey received three times that amount for a very similar infringement. Though it’s easy to look at the basics and be confused about the difference, the reason for that can likely be chalked up to these four differences.

1. Hursey’s Case Was Smaller Claims: Hursey, when filing his case, had it proceed as a “smaller claims” one. This capped damages at $5,000 and meant that only one person, not a panel of three, would be hearing the case.
2. Hursey’s Case Was a Default: Lavaca never participated in their own case and, though they didn’t opt out, they provided no statements, evidence or anything to tell their side of the story. 
3. Hursey Had Better Evidence: Oppenheimer was never able to prove that he had licensed the image or that he made significant money licensing images. Hursey provided evidence he successfully licensed images, and also provided an invoice that showed how much the image cost to take. 
4. The Infringement Is Ongoing: When Hursey filed the case, the infringement was ongoing. In Oppenheimer’s case, the lawyer quickly removed the image when notified of the issue. Even today, even though the page and site seem to be down, the allegedly infringing issue is still available via direct link.

The first of the differences should have worked against Hursey. He had a lower cap on damages and, even then, only received 60% of the maximum damages he could have been awarded.

However, the other factors definitely weigh in favor of Hursey. He faced no opposition, had better evidence, and the infringement was ongoing despite the respondent being on notice that the image is infringing.

Hursey, also like Oppenheimer, is no stranger to filing lawsuits over similar uses. He’s filed several lawsuits in federal court over alleged infringement of his images and also has two other cases before the CCB (22-CCB-0163 and 22-CCB-0219), both of which appear to be heading toward a similar default.

In short, both Hursey and Oppenheimer had similar histories before coming to the CCB. It was the differences in the cases themselves that caused the differing damage amounts.

To that end, there’s no real surprise here. If you don’t opt out and don’t participate in the case, if you don’t stop the ongoing infringement or if your claimant has better evidence, you can expect damages to be higher.

In that regard, the CCB is no different from any federal court. These are the exact kinds of things that should and do influence damages there. The CCB is simply following that lead, which is exactly how it is supposed to work. 

Bottom Line

It’s important to note that, with the CCB, rulings do not set precedent, even within the CCB itself. As such, later decisions will not be bound to this one and each case will continue to exist in a bubble, as if this one had not happened. 

That said, in this bubble, Lavaca did just about everything wrong. By not opting out and not participating in the process, they made it so that only Hursey’s side was heard and the fact the infringing was ongoing simply meant there was no reason to curtail the damages at all.

But, even with that, the damages were only $3,000, 60% of what they could have been even with the smaller claims proceeding. This means that, $3,000 is likely at or near the upper limit on the damages that would be awarded for this kind of infringement.

While it’s significant damages, especially considering that a settlement likely could have been reached for a fraction of that price, it also doesn’t encourage so-called “copyright trolls”. It’s an amount that strikes a balance between discouraging the infringement and not enabling serial litigants. 

When the CCB was launched, many were worried that it would become a haven and a tool for “copyright trolls”. As we noted in June, that never happened, with the most prolific copyright filers still preferring the federal court system.

Still, there’s no doubt that the CCB is still cognizant of that fear and, as we’ve seen here, are making decisions accordingly. 

In the end, even though it isn’t precedent, this ruling should give photographers and other creators an idea of what to expect from the CCB moving forward, both in terms of process and in terms of damages.

To that point, the CCB is carving out a place where it is a useful tool for addressing certain infringements, but not a place to expect large or quick damage awards.