Restoration 1, an Indianapolis-based water damage restoration service, has been sued for unauthorized use of a photograph on their website. The Plaintiff is a professional photographer from New Jersey who, per the Complaint (below), first sought to negotiate a reasonable license before bringing this lawsuit with a single claim of copyright infringement.
The photograph of blurry Christmas lights was allegedly used by the Defendant as the header in a blog post titled “A Safety Guide to Outdoor Christmas Lights.” This lawsuit should be a reminder to other companies that no matter how benevolent your intended use might be, don’t ever use images you pull directly from Google Images or you could get sued. A second lesson, probably soon to be learned by this Defendant, is that the “reasonable license” fee can increase significantly after a lawsuit is filed.
Stay tuned for updates.
Sadowski v. Restoration 1 by J&D, LLC
Court Case Number: 1:23-cv-01224-JRS-MKK File Date: July 12, 2023 Plaintiff: Christopher Sadowski Plaintiff Counsel: Michael A. Swift of Maginot, Moore & Beck LLP Defendant: Restoration 1 by J&D, LLC d/b/a Restoration 1 of Greater Indianapolis Cause: Copyright Infringement Court: Southern District of Indiana Judge: James R. Sweeney II Referred To: M. Kendra Klump
The plaintiff in this copyright lawsuit is a professional photographer from Austin, Texas. His work is focused on architectural and landscape photography.
One defendant, Lynn Boolman Auto Sales (“Boolman”), is a used car dealership in Portland, Indiana.
The other defendant, Carsforsale.com, is an online auto marketplace operating out of Sioux Falls, South Dakota. It seems from the Complaint (below) that both defendants made an unauthorized use of one of the plaintiff’s landscape photographs, including cropping the photograph to remove the photographer’s signature.
It is not clear whether there is any other connection between the two defendants besides both using the photograph. Jurisdiction over Carsforsale.com seems tenuous. At least from the Complaint and related Exhibit (below), I don’t see any action that Carsforsale.com took in Indiana, either if they first posted the photograph online or if Boolman posted it to their website.
In addition to the Copyright Infringement claim, the Complaint also includes a claim for Removal of Copyright Management Information, based on the cropping of the author’s signature. However, one of the more interesting and unusual aspects of the lawsuit is the plaintiff’s third claim for Addition of False Copyright Management Information, based on the car dealership overlaying its own logo and contact information onto the (cropped) plaintiff’s photograph. Presumably, the dealership will maintain that the information added to the photograph does not identify the author or copyright owner, and thus doesn’t qualify as “copyright management information” (see definition here).
The plaintiff made prior unsuccessful attempts to negotiate with the defendants in December 2021 and January 2022. Finding no satisfactory resolution, the plaintiff now seeks the intervention of the Court. Photography copyright lawsuits often settle quickly, but stay tuned for updates.
Stross v. Lynn Boolman Auto Sales Limited Liability Company et al
Court Case Number: 3:23-cv-00061-DRL-MGG File Date: January 25, 2023 Plaintiff: Alexander Bayonne Stross Plaintiff Counsel: Evan A. Andersen of SRIPLAW, P.A. Defendants: Lynn Boolman Auto Sales Limited Liability Company, Carsforsale.com, Inc. Cause: Copyright Infringement, Removal of Copyright Management Information, Addition of False Copyright Management Information Court: Northern District of Indiana Judge: Damon R. Leichty Referred To: Michael G. Gotsch, Sr.
The plaintiff in this copyright lawsuit is a professional photographer who has taken several photographs of Indiana Pacers’ Lance Stephenson, including photographs of Stephenson winning the 2008 Public School Athletic League as a high-schooler with Abraham Lincoln High School in Coney Island, New York.
Stephenson allegedly posted several of the plaintiff’s photographs on his Instagram account, stephensonlance, without authorization from the plaintiff. Most of the postings were apparently posted in Stephenson’s “Instagram Stories,” which disappear after 24 hours.
Lance Stephenson isn’t the first public figure to be sued for posting unowned photos of themself on social media. Being the subject of a photograph does not grant you copyright ownership of that photograph. Copyright ownership is held by the photographer, who can thus control how the photograph is publicly displayed. These types of lawsuits are typically settled out-of-court, but obviously not in this instance, although the Complaint (below) makes no mention of attempted settlement negotiations. Nevertheless, settlement usually follows shortly after a complaint is filed, although usually at a higher settlement amount.
Stay tuned for updates.
Reid v. Stephenson
Case Number: 1:22-cv-00205-JRS-DLP File Date: January 27, 2022 Plaintiff: Damion Reid Plaintiff Counsel: Craig B. Sanders of Sanders Law Group Defendant: Lance Stephenson Cause: Direct Copyright Infringement Court: Southern District of Indiana Judge: James R. Sweeney II Referred To: Doris L. Pryor
Here’s yet another copyright lawsuit involving the unauthorized use of a photograph on a website.
The Defendant, Vive Exterior Design, is a landscape design company headquartered in Fishers, Indiana. Vive is alleged to have used the Plaintiff’s photograph of a bocce ball court in the portfolio section of its website, www.viveexterior.com. The Plaintiff first sought to recover a standard license fee for use of the photograph via an intellectual property management company called Image Rights. When Image Rights was unsuccessful, Plaintiff’s counsel became involved but apparently never received a response from Vive. As such, Vive now has a federal copyright lawsuit to defend.
Settlement is the most likely outcome, but perhaps Vive has a valid defense for using the Plaintiff’s photograph. Stay tuned for updates.
Corson v. Vive Exterior Design, LLC et al
Case Number: 1:22-cv-00127-RLY-MG File Date: January 17, 2022 Plaintiff: Lisa Corson Plaintiff Counsel: Mathew K. Higbee, Naomi M. Sarega of Higbee & Associates Defendant: Vive Exterior Design, LLC, Does 1-10 Cause: Copyright Infringement Court: Southern District of Indiana Judge: Richard L. Young Referred To: Mario Garcia
Here’s another copyright lawsuit that supports the argument for a copyright small claims court.
The plaintiff is a New York-based professional photographer who owns the registered copyright in a photograph of Lauren Miranda, a New York teacher fired over a topless selfie. Mrs. Miranda was subsequently awarded $3 million in a gender discrimination lawsuit over the firing.
The defendant, Chicks on the Right, an Indianapolis-based politically conservative online news radio show and website, allegedly used the plaintiff’s photograph of Mrs. Miranda in an April 2019 blog post reporting on the teacher’s gender discrimination lawsuit (note: the plaintiff filed for registration of the photograph on June 30, 2019, almost 3 months after the blog post). While the defendant might be hoping to rely on a “news reporting” fair use defense, unfortunately there’s really no “fair use” reason to use the plaintiff’s specific photograph. Numerous images of Mrs. Miranda exist that could have been used (with proper authorization), and the Chicks on the Right blog post isn’t commenting, criticizing, or reporting on the plaintiff’s actual image. Having an online “news blog” isn’t a free pass to use any photograph you find on Google Images.
The reality is that professional photographers take lots of photos for a living, and sell only few. Perhaps political differences kept this dispute from reaching a simple non-litigious monetary resolution. Now, we can expect technicalities about the actual photograph’s ownership, registration or use to be explored in the defendant’s response or discovery.
On one hand, the Chicks on the Right, who likely use photographs for news articles on a daily basis, should be in the habit of verifying the source of every photograph they post on their blog. Presumably, in this specific instance two years ago, someone just got lazy or quick and grabbed the wrong photograph off the internet.
On the other hand, there’s simply no reason a U.S. Federal Court and esteemed judges like Jane Magnus-Stinson and Debra McVicker Lynch, already overloaded with significant legal disputes, should be dealing with a copyright lawsuit over one photograph (of a person most people have never heard of) used on a single “news” blog post. Statutory damages for a single non-willful infringement would be $750, almost certainly less than the plaintiff spent on preparing and filing this lawsuit, and definitely less than the Court has to expend in processing the dispute. You can’t blame the plaintiff though; currently, they have no other alternative legal option than federal court for a photography copyright dispute. Time will tell if there’s better way to handle such disputes.
Note that the allegedly infringing image no longer appears on the defendant’s website as of the posting of this blog (11/29/21).
By the way, go do a Google search for Lauren Miranda’s attorney. Sharp dresser. So much so, I’m giving this post a “Fashion” tag.
Stay tuned for updates.
Alcorn v. COTR, LLC
File Date: November 22, 2021 Plaintiff: Victor Alcorn Plaintiff Counsel: Craig B. Sanders, Esq. Defendant: COTR, LLC Cause: Direct Copyright Infringement Court: Southern District of Indiana Judge: Jane Magnus-Stinson Referred To: Debra McVicker Lynch
Indiana Intellectual Property Blog 