Copyright Claims Board Awards Photographer $1,500 in Damages

Yesterday, the Copyright Claims Board (CCB) Handed down another final determination (embedded below), awarding a photographer $1,500 in statutory damages.

The case pits photographer Martin McNeil against the marital arts streaming platform Blackbelt TV. Martin had accused the (now inactive) streaming platform of unlawfully using a photograph he took on their social media.

The CCB determined that Blackbelt had no license to use the image. After some analysis, it concluded that a reasonable license fee would be $500 for the image. From there, it followed the pattern of other cases and awarded 3X that in statutory damages, totaling $1,500.

While this case seems very simple, it ended up delving into some complex issues. Blackbelt TV raised several arguments in its defense, including the statute of limitations and licensing issues.

As such, it’s worth examining how the CCB parsed these issues and reached the conclusion it did.

Facts of the Case

In September 2012, MeNeil photographed MMA fighter Jimi Manuwa at an Ultimate Fighting Championship (UFC) event in England. In March 2013, Blackbelt posted the photo on its Facebook page to promote an Ultimate Challenge MMA (UCMMA) event featuring Manuwa.

Then, in September 2021, McNeil discovered the image after searching for the Manuwa online. He quickly sent an email to the company, and the image was removed almost immediately afterward. According to Blackbelt, it had received 92 views and 7 likes over the past eight years.

McNeil sought a retroactive license fee for the use of the image. However, when the two sides couldn’t come to terms, McNeil filed the claim with the CCB in June 2022.

The case was bitterly contested from the outset. Blackbelt filed their response in March 2023, and McNeil almost immediately sought to amend the claim, saying he had discovered new evidence. The CCB denied that, but then McNeil claimed that Blackbelt was acting in bad faith.

McNeil claimed that Rebecca Wolcott, Blackbelt’s representative, was neither a lawyer nor an employee of Blackbelt, making her involvement improper. However, the CEO of Threshold Entertainment, the company that owns Blackbelt, explained she is an employee of that company and was appointed to represent them in this case.

With that matter resolved, the case moved forward, and Blackbelt presented two theories against liability.

First, they allege that they had a license to use the photo. They claimed that UCMMA had provided them with the image for use on social media. Second, they alleged that the eight-year delay was too long and that the statute of limitations had run out.

The two sides battled over those issues, with the CCB ultimately siding with McNeil. However, the path to that conclusion is well worth examining.

The Licensing Question

According to Blackbelt, UCMMA provided the image as part of a promotional package and even shared a license agreement for UCMMA’s video library, for which Blackbelt paid $5,000.

Former employees testified that their policy was to only use promotional images on their social media. As such, the image had to have come from UCMMA.

However, there was a problem with that: There was no evidence that UCMMA had a license in the image itself.

As the CCB noted in its final determination, the photo of Manuwa was taken at a UFC event. Since UFC is a competitor to UCMMA, there’s almost no way that UCMMA had a license for the image.

McNeil provided further evidence to this point. He highlighted that he had only licensed the photo once. That license was to the underwear company Smuggling Duds.

In the end, the CCB ruled that there was no evidence of such a license, finding in favor of McNeil.

The Statute of Limitations Question

The second major issue was whether McNeil filed the claim in a timely manner. Under US copyright law, copyright holders have three years after the infringement accrues.

However, in the Ninth Circuit, a claim accrues after a copyright holder either learns about the infringement or reasonably should have learned about the infringement. According to McNeil, the infringement accrued in September 2021, making his claim timely. However,

On the other hand, Blackbelt argued that McNeil should have known about the infringement much sooner. They argued that that McNeil had filed three other copyright infringement cases in 2011, 2012 and 2014, respectively.

As such, they argued he reasonably should have been aware, with due diligence, of the infringement before 2021.

However, the CCB rejected that argument. The board felt that three lawsuits over a decade ago were not proof that he ignored the infringement for eight years. They saw it as evidence that he had encountered other infringements in the past, not that he should have been aware of this specific infringement.

Once again, the CCB ruled in favor of McNeil.

The Issue of Damages

McNeil was seeking $15,000 in statutory damages, the maximum allowed under the CCB’s rules. He alleged that an actual license fee would have been $5,216. That came from entering information on his Photoshelter website and extrapolating it over the eight years the image was online.

However, the CCB didn’t accept that argument. Instead, they looked at the one actual license that McNeil had received for the photo, the Smuggling Duds one. That license was just $260. However, McNeil claimed it was a “discount” license but didn’t specify the discount amount.

The CCB opted to treat it as a 50% discount, raising the license amount to $500. The board then used its standard 3X multiplier to reach the $1,500 damages amount.

That, in the end, was the final word on the matter.

Bottom Line

To me, it feels like no one actually won this case. McNeil received significantly less damages than he sought. Meanwhile, Blackbelt is still liable for an 8-year-old infringement that, by all accounts, was either a mistake or they were actively misled about.

That said, the CCB’s analysis of the law is, in a word, excellent. The board deftly navigated through thorny licensing and statute of limitations issues. Ultimately, the board handed down a reasonable, well-grounded decision.

Though the subject of statutory damages is still controversial in the CCB, the board followed its own precedent well (even if CCB determinations are not precedent for later ones). Ultimately, this is a difficult decision to disagree with or argue against.

In the end, this case is another example of the CCB tackling complex and challenging copyright issues and handling them well. Even if, in this case, both sides are likely to be somewhat disappointed in the outcome.

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