Copyright Claims Board Rules Against Petco

After a two-month drought, the Copyright Claims Board (CCB) has handed down another final determination.

This time, the board ruled that Pupbox, a subsidiary of Petco, infringed the copyright of an Instagram user, Sabrina Giardina, by reposting a 7-second video of her dog jumping a fence.

But while the ruling is against Petco, it’s hardly a victory for Giardina. The CCB awarded her only $825 in damages, far lower than the $30,000 she sought. It’s also lower than the $2,500 Petco acknowledged would be reasonable.

So why did the CCB award so little? The answer, at least in part, is likely Giardina’s aggressive handling of the dispute.

Background on the Case

Giardina filed the case with the CCB in January 2023. The allegations were straightforward. She is the owner of a seven-second video entitled Getting Ready for the Olympics? It featured a large dog repeatedly leaping over a house gate.

She claims that, on April 2nd, 2021, Pupbox downloaded the video from her Instagram channel and uploaded it to theirs. That same day, the video was removed following a copyright notice filed by Giardina with Instagram.

Petco, for its part, does not dispute the facts of the case. In fact, it doesn’t dispute that it infringed Giardina’s work. What it does dispute is the amount of damages Giardina was seeking.

According to Petco’s claim response, they immediately tried to settle the case after it was filed. However, Giardina insisted she would not settle for less than $30,000. After filing that response, Petco requested another settlement conference, which took place in July 2023.

However, that conference was apparently fruitless. Both sides continued to argue for differing damage amounts, with Giardina highlighting her relationships with Petco competitors, which she claims were jeopardized.

Since Giardina was seeking actual damages, not statutory damages, much of the case centered around how much Petco profited from the infringement and how much a license would have cost.

To that end, Petco showed that a similar social media campaign cost them about $2,500 per post. The CCB then used that number, divided by 1/3 since the infringement was not branded and was only up for a brief period of time.

That resulted in the $825 damage award the CCB issued.

An Impractical Position

To be clear, Giardina’s $30,000 demand was never reasonable. It is the maximum that the CCB can award, and since there are no additional limitations on actual damages at the CCB, it was theoretically possible.

However, it seems unlikely that the CCB would award more for actual damages than it can for statutory damages. With statutory damages, the board also has a cap of $15,000 per infringed work. However, since Giardina did not register the work in a timely manner, that cap is further lowered to $7,500.

Still, $7,500 is far more than $825, which is barely above the statutory minimum of $750 for statutory damages.

However, as we noted, this isn’t a case about statutory damages. Giardina sought to recover actual damages and Petco’s additional profits. Unfortunately for her, she might have been able to recover far more if she had opted for statutory damages.

In other cases, the CCB has opted to award statutory damages 3X the estimated licensing fee. In this case, that would have raised the damages to $2,475, the original amount Petco said was normal for a post.

Simply put, Giardina seems to have overestimated how much actual damages and profit she could prove. While she may be right that Petco did earn more money, proving it is difficult, especially with social media.

Simply put, the benefit Petco got from the infringement is going to be nebulous and tough to nail down. License fees, however, are much easier to define. That’s why the CCB went that route and will likely continue to do so in the future.

With a different approach, it’s likely Giardina would have gotten a much larger check much more quickly.

Bottom Line

Giardina has every right and reason to be upset with Pupbox/Petco. They took her video and posted it on their account without permission or attribution. There is no doubt that was an infringement, and Petco readily admitted as such.

However, this is a rare case where, despite the clear infringement, it feels as if the claimant lost. Simply put, $825 is an incredibly low damage amount, far lower than the $30,000 she was seeking.

Some of this was due to her decision to seek actual damages, not statutory damages. While she likely hoped that the damages award would be over the statutory damage caps, that was never likely, especially given previous CCB decisions.

All in all, she overplayed her hand. While the infringement is clear, proving actual damages and profits from a social media post is difficult. She would have likely been much better off either taking one of the settlement offers or seeking statutory damages instead.

As such, this is a lesson for others seeking to use the CCB. You need to be reasonable about what damages you can prove. As this case shows, pushing an unreasonable position will only hurt your ability to collect damages should it go to a final determination.