After nearly five years of litigation in U.S. District Court in Delaware, last month photographer Andrew Paul Leonard received a jury award of $1.6 million dollars in actual damages for infringement of his copyright-protected photographs. Leonard specializes in microscopic photography and in 1995 created images of human bone marrow. The jury found that the Defendant, StemTech Health Services, a company that markets and sells nutritional supplements, engaged in direct infringement for displaying Leonard's images in publications, websites, and videos, and also contributory infringement for the use of Leonard's images on the websites of Stemtech's distributors.
This case is exceptional, and few photographers would be likely to make a similar recovery on a showing of actual damages. The case highlights a few important aspects of U.S. copyright law that can have a major impact on artists and photographers who find their works infringed. While a work receives copyright protection when it is created, obtaining a copyright registration and the timing of that registration are key to pursuing unlawful infringement of the work. Leonard was entitled to actual damages instead of statutory damages because he did not register the copyright in the image until after the infringement occurred. A timely copyright registration will entitle the author of a work to statutory damages of up to $30,000 per work infringed (up to $150,000 per work infringed if the infringement is deemed to be willful), or actual damages, whichever is higher. Additionally, a copyright registration is required to pursue an infringer in a federal lawsuit (and the federal courts have exclusive jurisdiction over copyright claims).
While many reforms to copyright law are being considered, such as copyright small claims courts, until those reforms are put into action, those who wish to enforce their copyrights must obtain timely copyright registrations to obtain maximum protection of their rights.
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