Online extended report

Twelve million dollars!

THAT'S HOW much an architectural photographer won in damages for repeat unauthorised use of her photos of interiors of "high end" houses in the US. The Institute for International Architectural Photographers site explained how photographer Liz Ordonez-Dawes did it, using the services of a specialist "photo attorney".

Liz had registered her copyright with the US Copyright Office, which made her eligible for statutory damage infringements. The (unnamed) defendants had freely distributed her photos to various advertisers who used them to sell the houses in question, without asking Liz first. Said defendants also failed to reply to Liz's allegations outlined in her initial complaint, which in law meant they accepted that these were all true, including her assertion that they knew that what they were doing was illegal.

Liz then had a choice between going for statutory damages or "actual damages", and she chose actual damages. This is calculated as the amount she would normally charge for an unlimited licence for the work - over $58,000 -, plus any (gross) profits that the infringer of her copyright made out of its use. In this case, this amount was what they made from the sale of the houses, and since they'd failed to respond to Liz's lawyer's letters, they weren't able to argue that the profits were due to factors other than the use of Liz's work.

Defendants usually have to opportunity to get their "deductible expenses" taken into account when making the award, but as they failed to answer Liz's complaint, the defendants had blown this one as well. Voilá! $12,030,500 awarded to Liz, based on seven unlicensed uses worth comfortably over a million bucks each.

This could have implications for the proposed orphaned works law in the US, under which "actual damages" would be the only remedy available in law there - for those who can afford specialist "photo attorneys". Unfortunately, freelances usually can't afford such representation, nor can they rely on infringers being so catastrophically slack as in this case.

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