The plaintiff in this case is a professional photographer whose work is registered with the copyright office. He sued New York Vintners LLC for copyright infringement when they used a picture of his on a third-party website, PULSD.COM promoting their wine education classes. You can see the photograph and read the complaint here. For whatever reason, the wine retailer did not respond to the complaint and default was entered against them. In reviewing the claims and setting the judgment amount, the magistrate’s report and recommendation inquired as to the fair market value of use of the photograph and set it at rates generally charged by the plaintiff for use of the photo. The plaintiff also won damages for a DMCA violation and received some of the attorneys’ fees he sought to recoup.
The Takeaway: Clearance is no joke. Taking the time to use your own photographs or properly source them and ensure you have rights to third-party vendors is a necessity. Here rather than pay $6,000 in damages, the use of the photo might only have cost $1,000.