An American photographer has been making headlines after receiving a massive award for copyright infringement by a health supplement website in relation to two of his photographs. It took 5 years, but on October 11, 2013 Andrew Paul Leonard was awarded $1.6 million in damages to be paid by Stemtech Health Sciences and its distributor.
Leonard is a photographer whose specialty is using an electron microscope to capture images of some of the smallest things imaginable, including cells, crystals, and tiny creatures. Stemtech is a multi-level marketing organization with a line of health products using adult stem cells. The action by Leonard alleged that Stemtech initially approached him to licence one image for use in their publications, which Leonard agreed to, but that he was never fully paid for its use. Also, the agreement was for use only in their publications, and not on their website.
The action further alleged that Stemtech used two images entitled "Scanned Electron Microscopy of Human Bone Marrow Stem Cells Images" on their website, and made them available to their sales and distribution network for use on their websites as well. When Leonard discovered the use by Stemtech, he sent them a cease and desist letter. Stemtech took down the images, but refused to compensate Leonard. As such, Leonard started the action against Stemtech for copyright infringement.
The main form of relief sought by Leonard was damages suffered by him, and an accounting of profits by Stemtech. Or in the alternative, statutory damages.
The case was heard by a jury, which returned a verdict in Leonard's favour on all counts. In addition to a finding of liability for direct infringement, the jury also found Stemtch vicariously and contributorily liable for the infringement of Leonard's copyrights in both works. In this case, Stemtech was found vicariously liable for the use of Leonard's images by the company's independent contractors. The jury found that Stemtech had the right or ability to stop or limit their infringement, but failed to do so, while also having a direct profit or financial interest in the independent distributor's infringement. Furthermore, the jury found Stemtech had knowledge its distributors were directly infringing the works and intentionally induced them to do so.
Apart from the facts, the most interesting aspect of this case was the massive award of $1.6 million to the photographer. Leonard pled for actual damages, which would have been a combination of damage suffered by him as well as an accounting of profits by Stemtech. Under 17 USC 504 subsection (c), Leonard could have elected for statutory damages, but was not able to do so, as he had not registered his works at the time of infringement. US law extends copyright protection to unregistered works, but requires registration upon commencement of an infringement action.
Damages under Canadian Law
The Canadian Copyright Act operates in very much the same way. Under section 35, an infringer of copyright is liable for damages suffered by the owner, in addition to an accounting of profits not otherwise accounted for. Similarly to 17 USC § 504 sub-section (c), Canadian law allows for the copyright holder to elect for statutory damages instead of real damages at any time in the proceedings under section 38.1. The range of statutory damages in Canada is between $500 and $20,000 for all infringements by a commercial infringer of a single work. Unlike America, statutory damages are available in Canada without registration, and starting an action for infringement does not require registration of a work.
Without details of how the jury calculated the amount, it is difficult to comment on its appropriateness. However, another recent American decision resulted in a $1.2 million dollar award for copyright infringement of another photograph, this time under statutory damages. These decisions beg the question of whether we will see a trend in enforcing copyright of photographs and if we will be seeing them enter the Canadian courts.
Alex Buonassisi is an IPilogue Editor and a JD Candidate at the University of British Columbia.