CCB Awards Photographer its Largest Damage Award

The Copyright Claims Board (CCB) has issued its first final determination in nearly three months. In doing so, it awarded a fashion photographer $11,000 in damages in a default determination.

The new determination will not likely calm many of the CCB’s critics, and it highlights many of its biggest challenges. Despite that, the determination is still interesting. First, it is the largest damages award in the CCB’s history (besting its previous by $800). Second, the CCB followed an unusual path both in deciding who the victor was and how much to award them

That’s because, even though the determination is a major win for the photographer, the CCB says that they nearly ruled against her. Also, even though $11,000 is a significant damages award, the photographer sought several times that amount.

As such, it’s worth examining this final determination in depth to see what it may tell us about the future of the CCB and what filers with the board can expect. The answers should give some filers a moment of pause.

Background to the Case

Photographer Tamara Wareka, who uses the name Tamara Williams professionally, filed the claim on November 10, 2023. The board found that the claim was compliant and, on the 27th, told her to move forward with service to the respondent.

The claim targets a woman named Sabrina Carroll. According to the claim, Carrol operates Sky Lounge Skin Care, a spa business in Baltimore, Maryland. The claim alleged that Carroll used five of Wareka’s images on that spa’s Facebook page. Carroll has since removed those images.

Carroll did not respond to the claim despite being served. She neither opted out nor filed any evidence or statements with the CCB.

As such, Wareka was the only one providing evidence in the case. She submitted evidence of the infringement, including a statement from her licensing agent, Lauren Kelly. She also submitted several invoices for her photographs, indicating that she had previously licensed her work for thousands of dollars.

However, the CCB was not wholly convinced by the invoices Wareka provided. The CCB indicated that the invoices were not similar to the alleged infringement, making them of limited use in determining damages.

Wareka, for her part, had sought $50,000 in statutory damages. However, the CCB noted that the maximum for any CCB proceeding is $30,000.

Still, the CCB declined to award anywhere near that amount. The board ruled that a license fee of $1,100 was reasonable for each photograph and doubled that amount. This means that the total damages came to $11,000 after all photos were considered.

However, Wareka came very close to not winning anything, all due to a single issue that could have sunk the case.

To LLC or Not LLC

Wareka filed the claim against Carroll as an individual. She opted not to name Carroll’s company, Sky Lounge Skin Care LLC, as a respondent in this case.

Wareka noted that Carroll forfeited the LLC in 2020 by failing to file needed paperwork. Though Wareka learned about the infringement after the LLC was shuttered, the infringements happened in 2018 and 2019 while the LLC was valid.

This raised a serious question for the board: “Whether Carroll can be found liable under principles of vicarious liability when there is no evidence that she made the posts herself.”

To reach this bar, Wareka needed to prove that Carroll had the right and ability to supervise the infringing content and had a direct financial interest in the infringing activity.

The board had ruled that Wareka had provided “just barely” enough evidence to overcome those hurdles. The deciding factor was that there was no evidence anyone other than Carroll worked for or at Sky Lounge Care. As such, even if Carroll had used an outside marketing firm, she would have been the one supervising the work.

In short, if there had been other employees or other slightly different facts, this claim could have gone very differently.

Determining Damages

When determining what damages to award, the board looked at a pair of “heavily redacted” invoices that Wareka provided. The board dismissed one of the invoices, the larger of the two, out of hand, saying it wasn’t relevant to the case.

The board determined that the other invoice was more relevant. However, they noted that the second invoice had a longer time period and additional licensed uses. As such, the board determined that the license should be roughly 20% of that invoice. They took the $5,600 total on the invoice and set $1,100 as the actual license cost.

From there, the board doubled the amount to determine statutory damages. This was less than its normal tripling of the license fee. According to the board, this was because the five images were posted in quick succession, and the $11,000 final amount was more than enough to deter Carroll from using Wareka’s images.

This came from the board’s “wide discretion to ‘consider what is just in the particular case.'”

While it is still a small fraction of what Wareka sought, it represents the largest financial award the board has handed down.

Still, it’s clear the board wasn’t comfortable awarding a much larger damage award, at least based on the evidence that it had before it.

Bottom Line

There’s not much here to calm critics of the CCB. Despite the board accepting the first claim and the case ending in default, it took over a year to resolve. Likewise, Wareka used a lawyer to handle the case, likely adding to her costs.

However, even with a lawyer, the filing still made the error of asking for more damages than the board could award. Likewise, though it is the largest judgment the CCB has handed down, they still made great efforts to minimize the damages.

The CCB is still trying to establish itself as a helpful tool for smaller copyright claims. However, this case does little to encourage filers to use this path or respondents to participate.

As usual, the CCB did a fantastic job with its analysis. It parsed the various issues in this case very well and reached a reasonable conclusion. However, given the time this case took, the damages awarded, and the fact that they will likely need to go to a regular court to enforce the determination, it isn’t easy to see how the CCB was particularly useful.

While I’m glad that the CCB goes to great lengths to protect defaulting respondents, there’s little reason for respondents to participate. This case likely would not have changed much if Carroll had responded.

On one hand, this case is a milestone. It’s the largest damages award the CCB has handed down and a thorough victory for the claimant. On the other, the case highlights many of the issues and challenges the CCB is facing and needs to address.