American website using photo without permission

[mllxlbw2]

What is the name of your state (only U.S. law)? New York

I am a photographer resident in England. A well known American website headquartered in New York used one of my photos without permission. They flipped the photo but otherwise made no changes (and did not credit me as the photographer). The photo is used in an article on their website and I can tell by the date of the article that it has been online for over 2 years. The only place they could have obtained the photo is my website (which is clearly marked as copyright), or another website which I gave permission to use the image.

I am familiar with English law copyright principles. However, I know nothing about US copyright law, save that as a general principle, it seems the US courts take copyright infringement more seriously, and typically award higher damages, than English courts.

My question is whether the US courts would exercise jurisdiction over my case in circumstances where the website in question is headquartered in New York, and if so what principles would be used to assess damages due to me?

Thank you in advance for any assistance.

 

[quincy]

What is the name of your state (only U.S. law)? New York

I am a photographer resident in England. A well known American website headquartered in New York used one of my photos without permission. They flipped the photo but otherwise made no changes (and did not credit me as the photographer). The photo is used in an article on their website and I can tell by the date of the article that it has been online for over 2 years. The only place they could have obtained the photo is my website (which is clearly marked as copyright), or another website which I gave permission to use the image.

You are within the statute of limitations in the US for filing a copyright infringement suit if the "over two years" is not over "three" years (or after the infringement should reasonably have been discovered).

I am familiar with English law copyright principles. However, I know nothing about US copyright law, save that as a general principle, it seems the US courts take copyright infringement more seriously, and typically award higher damages, than English courts.

The "higher damages" that can be awarded in a copyright infringement suit in the US is due to the statutory damages available to those in the US who register their works in a timely fashion. These damages range from $750 per infringed work all the way up to $150,000 per infringed work for especially egregious willful infringement - and these damages can be awarded even without proof of actual damages realized by the copyright holder or the profits of the infringer.

My question is whether the US courts would exercise jurisdiction over my case in circumstances where the website in question is headquartered in New York, and if so what principles would be used to assess damages due to me? ...

If your work was infringed in the US by a US publication, you can sue in the US. Yes, the US courts will exercise jurisdiction over your case.

You will want to consult with an attorney in the US or an international IP attorney in England for advice and direction on pursuing a legal action against the American website. I assume (perhaps wrongly) that you have already sent the website notification of infringement and demanded its removal from their site. If not, this is the first step you will want to take.

You might also, depending on facts, have a legal action to pursue against the website that was authorized to use your photographic image (although you should review first the contract terms agreed to with the website, to make sure you didn't inadvertently grant them more rights to the image than you intended).

Good luck.

 

[mllxlbw2]

Thank you very much for this detailed and helpful reply. Fortunately I am within the three year limitation period. I have one follow up question: given that I have not registered my image in the US (and I assume I cannot do so now in relation to an infringement that has previously occurred), I understand that I will not be able to claim the statutory damages. In which case, what principles will the court use to assess the amount of damages due? If the principles are not likely to result in a more favourable outcome than in the English courts, it would be far easier for me to sue in the English courts.

Thanks again.

 

[quincy]

Thank you very much for this detailed and helpful reply. Fortunately I am within the three year limitation period. I have one follow up question: given that I have not registered my image in the US (and I assume I cannot do so now in relation to an infringement that has previously occurred), I understand that I will not be able to claim the statutory damages. In which case, what principles will the court use to assess the amount of damages due? If the principles are not likely to result in a more favourable outcome than in the English courts, it would be far easier for me to sue in the English courts.

Thanks again.

The statutory damages are available only to those who have registered their works with the US Copyright Office.

Without registration of the copyrighted work in the US, or registration within 3 months of the infringement, the copyright holder whose work has been infringed must show the actual damages suffered as a result of the infringement and any profits made by the infringer that are attributable to the infringement.

You will want to speak with an IP attorney in England to better determine whether it benefits you more to sue in England under England's copyright laws, or whether it benefits you more to sue in the US. In this assessment, you should also determine the ease with which you can collect on any damages that might be awarded you with either an English judgment or a US judgment.

I wish you good luck, mllxlbw2. And thank you for the thanks. They are appreciated.