Photographer Wins Nearly $3K in Small Claims Case

In a final determination released on Friday, the Copyright Claims Board (CCB) awarded photographer Martin McNeil $2,850 in damages for using an image he took on various social media platforms.

McNeil filed the claim in May 2023. In it, he alleged that, in 2013, he took a photo of Ultimate Fighting Championship (UFC) fighter Conor McGregor throwing a punch in a fight. Ten years later, Experience the Fight Media LLC (ETFM) used the photo as part of an “on this day” collage on various social media platforms.

He quickly filed a takedown for the work. Though ETFM approached him about working through the issue, they filed a counter-notice to restore it. This prompted McNeil to file the claim.

Almost two years later, the claim has been resolved. The CCB ruled in favor of McNeil and awarded him $2,850 in damages.

To that end, this is a fairly standard CCB case, with one interesting twist.

Background of the Case

Martin McNeil is a professional photographer who, according to his filings, has worked with ESPN, The New York Times, and more.

On April 6, 2013, while on assignment for Vox Media, he attended the UFC event UFC on Fuel TV 9: Mousasi vs. Latifi. This event featured a match pitting McGregor against Marcus Brimage. During that bout, he took a photo of McGregor throwing an uppercut at Brimage.

The photos were published almost immediately after. He registered the image on April 11 as part of a collection from the event.

His deal with Vox gave them a 90-day exclusive rights window. After that, that license would convert to non-exclusive, making McNeil the rights holder.

Ten years later, ETFM published a slightly altered version of the photograph on Twitter (now X), Facebook, and Instagram. McNeil said the only changes involved rotating the image, converting it to black-and-white, and cropping the top and bottom.

McNeil filed a DMCA notice with the various platforms, and all of them removed the image. He then received an email from Saif Ibraheem, who offered to take the work down to avoid a copyright strike.

McNeil then offered to settle the case for his usual licensing fee, but didn’t get a response. During this time, ETFM submitted a counter-notice to Twitter, prompting McNeil to file the case before the CCB.

Almost two years later, the CCB has ruled in favor of McNeil. But how it got there is a fascinating journey.

The Board’s Analysis

On the surface, this is a fairly standard case for the CCB. A photographer files a claim against a company for using his image on social media channels, and we’ve seen this many times before.

However, one thing makes this case unique: ETFM tried nearly everything they could to get it dismissed or reduced.

They argued fair use, claimed not to be responsible for the uploads, said they were not wilful or negligent, and so forth.

To put it bluntly, the CCB did not believe them. The board said they did not find those representing the company credible, noting that one author repudiated their statement. However, even if they were credible, it still didn’t matter.

Ultimately, the board found no evidence that anyone unauthorized uploaded the image. They found that all four fair use factors favored McNeil and that the only question was how much damages to award.

To that end, the board returned to its tried-and-true system. McNeil provided at least 18 license agreements for his work. The court selected one that best fit this case, which was for $946. They then multiplied that work by three and, after rounding, came to $2,850.

My Analysis

One major criticism of the CCB is that many cases result in default judgments. These are cases in which the respondent doesn’t opt out but also doesn’t participate in the case.

However, I don’t think this case would have changed if the respondents hadn’t answered it. All of their arguments were dismissed out of hand. While it’s never wise to ignore a case filed against you, I don’t think the respondents’ participation changed anything, other than prolonging the case.

The CCB would have done the same analysis, including the fair use one, even without them. We’ve even seen the CCB rule in favor of the defaulting party. While I do think the respondents were wise to participate, it’s clear that their participation wasn’t crucial to the outcome.

As usual, I agree with the CCB’s determination. Their analysis of the facts is sound, and their award aligns with other decisions. In short, there is nothing outrageous here, but that is likely a very good thing.

Bottom Line

The real message in this case is to understand copyright and ensure your works are non-infringing before you upload them. With just a modicum of understanding, this could have been easily avoided.

However, they worsened their situation by filing the counter-notice and ignoring licensing offers. Whatever McNeil’s original offer was, it was almost certainly less than $2,850.

In the end, this case was most likely about preventing the work from being restored. The damages are secondary.

Still, the respondents did just about everything they could do wrong. They acknowledged the infringement but filed a counter-notice; they made arguments of dubious merit and they failed to support their fair use claims.

Though both sides represented themselves, McNeil clearly had a much clearer understanding of copyright than the respondents. ETFM would have been wise to get outside counsel.

However, if they had done that, they likely would have understood the situation they were in and moved to settle it quickly.