Photographer Wins Just $940 in Federal Lawsuit

Yesterday, we examined a case in which a photographer won $11,000 before the Copyright Claims Board (CCB). Though the case was a default judgment, the photographer nearly lost it and received significantly less damages than they sought.

However, on the same day that final determination came out, a federal judge in New York handed down a decision in a similar lawsuit. In that case, the judge awarded the photographer just $940 in damages and declined to grant him attorney’s fees and other costs.

So why did this photographer get just 1/10 the damages despite not being in a “small claims” environment? The answer comes down to how both sides litigated the case.

In this case, the plaintiffs did little to endear themselves to the court or prove that they deserved larger damages. Meanwhile, the defense did almost everything they could to resolve the dispute and minimize the harm of the infringement.

In the eyes of the court, this is a classic case of a plaintiff overreaching, and the court punished that behavior with a very modest damages award.

Every photographer needs to pay attention to this lesson, if only to understand how and why courts are awarding limited damages in these cases.

Background of the Case

The main facts of the case are not in dispute. In December 2021, photographer Matthew McDermott photographed New York City’s new police commissioner, Keechant

Sewell, at the behest of the New York Post. He was paid $470 and took a day’s worth of time and 59 photos of the commissioner.

Later that month, a contractor for Kalita Mukul Creative Inc. (MKC) was writing an article profiling local leaders. MKC is a communications company that specializes in community outreach. 

Though MKC had a license for most of the images used in the article, they did not have one for the image at issue. The contractor obtained it from an Instagram account entitled “Descendants of Hope,” and MKC attributed the image to that account.

McDermott could not remember when he learned about the infringement but, according to the court, waited nearly a year to file a lawsuit. During that time, McDermott did not file a cease and desist letter or take other action to mitigate the infringement.

MKC learned of the lawsuit in March 2023 when defense attorneys contacted them out of the blue. Upon learning about the lawsuit, they immediately removed the image. Nonetheless, McDermott sought $11,000 in damages, an injunction barring future infringement and attorney’s fees.

In September, the two sides agreed to a settlement of $2,500. However, that deal fell through when McDromott demanded an additional $74,500 in fees and costs. Though MKC had been alleging affirmative defenses, they eventually agreed to admit liability, setting the stage for a bench trial on damages alone.

There, the judge viewed the plaintiff’s actions in a disfavorable light, eventually awarding McDermott just $940 in statutory damages, less than half the previous settlement amount.

Why So Low?

The obvious question is: Why did the judge choose such a low damage amount? The answer is a confluence of a lot of factors.

First, the judge did not accept that this was a willful infringement. Between the use of a contractor, the licensing of other images, the misattribution of the work and the lack of copyright information on the photograph, the judge found that MKC was not a willful infringer.

This finding automatically capped the damages at $30,000.

Second, the judge did not accept the plaintiff’s estimate for the cost of a license. For that, McDermott presented a screenshot of an online calculator by Getty Images to license a similar, but not the same, photo.

However, McDermott did not license the photo through Getty. Instead, he licensed it through Polaris and never provided an estimate for licensing through them. As such, the only evidence the court had was the $470 per day rate that the New York Post paid him.

The court accepted that rate and doubled it, reaching the $940 total.

That might not have been a complete disaster for McDermott, but the judge declined to award attorney’s fees and other costs. He had sought over $120 thousand in such costs.

The judge found that the defendants had not been unreasonable, even admitting liability and agreeing to a bench trial on damages. In fact, he said, “If anything, the record points to unreasonable conduct by Plaintiff.”

The judge further found the defense was not frivolous and even noted that MKC had been building more robust copyright policies before the lawsuit. As such, the judge didn’t feel there was a need for deterrence.

That also played a role in the judge’s decision not to issue an injunction against MKC. He found that the infringement had already ceased and was unlikely to resume. 

Lessons for Photographers

Photographers need to pay attention to this case. If his request for fees is anywhere near reality, it’s possible that he (or his attorneys) lost over $100,000 prosecuting a case that never needed to make it to court.

Realistically, this probably could have been resolved with a stern letter and a settlement. Instead, McDermott chose to file a lawsuit without taking any mitigating action. 

If that had failed, the Copyright Claims Board (CCB) is ideal for this kind of case. Even at the $12,000+ damages he sought, the CCB could have heard the case. The CCB would have reduced costs significantly and likely expedited the resolution by at least some.

Simply put, attorney’s fees and significant statutory damages are not guaranteed in federal copyright cases. In fact, this ruling cites several other instances in which courts awarded even less, namely the $750 statutory minimum, in similar lawsuits.

As for the defendants, this case explains why it’s vital to mitigate infringements when you learn about them and why it’s essential to build robust copyright policies and to provide attribution. While MKC was found liable, it was a pyrrhic victory for the plaintiff. Without those efforts, this case could have gone very differently for MKC.

Ultimately, this case reminds us that while pie-in-the-sky statutory damages are always tempting, they are rarely obtainable. The Plaintiff overreached, seeking far more in damages than the facts of the case called for, and got burned for it.

Bottom Line

To be clear, the CCB has many problems. It is a profoundly imperfect institution that is struggling to find its footing. 

However, this case illustrates why the CCB may have a place in the modern copyright landscape. 

If we could roll back the clock and start this case over using the CCB, the outcome would likely be similar. However, McDermott and his attorneys would have spent far fewer resources on the case, and the conclusion would have been reached a few months earlier. Everyone would likely be happier.

However, the case would have likely ended better for the plaintiff if he hadn’t been insistent on massive damages and fees. The facts of this case did not support a significant damages award, and pressing for it only made things worse.

It’s a lesson other photographers and other rightsholders need to learn.