Copyright Claims Board Tackles Real Estate Photography

The Copyright Claims Board (CCB) is the relatively new United States copyright small claims “court” that opened in June 2022.

Since then, photographers and visual artists have widely used this new tool. As of the second anniversary, 39% of all cases filed were for images.

However, those photographers have had a wide array of experiences. Some have received massive damages. For others, the board ruled against them even when the other party defaulted.

This is because many cases had similar elements, but the details were often very different. This resulted in significant differences in how the board ruled and the damages it awarded.

To that end, another unique case has reached a final determination. It pits a real estate photographer against a condo owner who, the claim alleges, used 26 of her images without permission.

Though the photographer did walk away with a victory, she’s unlikely to be very happy about the damages that she will be able to recover.

The Facts of the Case

The facts of the case are relatively straightforward. Kimberly Mullin is a real estate photographer who operates under the business name Kimberlin. As part of her work, she took 58 photographs of a condo that was for sale. She then sent 40 of those images to the owner.

Katherine Velasco purchased the condo with the intent of renting it out. When setting up her listings, she used 26 of the 40 photographs in her listing, prompting Mullin to reach out to her via messages on Zillow and email.

The two could not reach an agreement, prompting Mullin to file the claim with the CCB in January 2024. In her original claim, Mullin sought $770 per infringement, totaling $20,020. However, throughout the case, she raised the damages sought to $1,153 per infringed work, which would put the amount at $29,978.

Velasco, for her part, did not deny the infringement. However, she said she was an innocent infringer and should only pay $200 in damages.

Since Velasco could not provide proof that her images had been licensed in the past, the board leaned toward awarding the statutory minimum of $750. However, the board asked whether the $750 should apply to the works in total or each work separately. If it’s the latter, that minimum would have equaled $19,500 in total damages.

The board decided that damages that were high were not in the interest of justice. However, given the commercial nature of the use and the lack of due diligence on Velasco’s part, they decided $750 was not appropriate either.

Instead, the board awarded $1,200 in damages. They said it was appropriate to deter Velasco from further infringement and that it was an adequate award for Mullin.

Analysis of the Case

The meat of this case is the damages assessment. The facts of the case were not in dispute, and it was clear that some infringement had occurred—the damages, however, where what the two sides were actually wrangling over.

To that end, this is easily the most unusual damages decision the CCB has handed down.

For as long as it has been open, the CCB has followed a fairly standard approach to damages. It multiplies the actual damages (normally the licensing fee) by a determined amount, usually three. If there is no evidence of previous licenses, it awards the statutory minimum of $750.

There was no evidence of the images (or similar ones) being licensed here. This isn’t uncommon in this space. Real estate photographers typically take bespoke photos and don’t relicense them to future owners.

However, since so many photos were involved, the statutory damages could be either $750 or $19,500. The board didn’t feel that the larger award was in the interest of justice but also felt the same about the smaller.

As such, they used the smaller number as a starting point and then added $450 to that. This serves as both a stronger deterrent and a bigger award for Mullin.

However, given that Mullin was initially seeking more than 16x that amount in damages, it is likely a bittersweet victory for them.

Bottom Line

Most cases in which the CCB has handed down final determinations have been default judgments where the facts of the case were not in dispute. As such, most of the focus of the CCB has been on setting damage awards.

To that end, the CCB has been relatively consistent in its approach and awards. Though the multiplier has varied in some cases, it has traditionally used the actual damages times three formula.

This represents a rare case where the CCB completely deviated from that process, choosing to award an arbitrary amount. There was no real justification for the $1,200 amount other than it was in the interest of justice.

To be clear, the CCB doesn’t have to justify its awards. The board, just like federal courts, has a great deal of leeway in setting damages. The law itself sets the only real limitations.

To that end, the CCB faces a tough challenge. It is meant to be a small claims regime, and awards that are too high defeat that purpose. However, low awards make the CCB an ineffective deterrent and give rightsholders little reason to file claims.

To that end, I think the CCB made a good decision in this case, even if it was somewhat arbitrary. The case didn’t leave the board with many good answers. Ultimately, it was better to give an arbitrary award than a clearly unbalanced one.

Still, it will be interesting to see how the board will approach similar case in the future and if it will start using its discretion more often.