“Scarcity Multiplier” of Six Deemed Excessive for Photographer’s Statutory Damages Award

In connection with granting plaintiff’s motion for default judgment, the court found that the defaulting defendant’s infringement of plaintiff’s two photographs was willful and awarded statutory damages, which were calculated by trebling plaintiff’s actual damages based on the photographs’ license fees and applying a scarcity multiplier of four. “Plaintiff notified [defendant] in writing of [plaintiff’s] copyright in the Works and demanded that it cease the infringing use of the Works and pay a license fee for the unauthorized use of the Work. Given Plaintiff’s repeated requests and [defendant’s] reproduction, distribution, and public display of the copyrighted Works without obtaining, or even seeking, permission from Plaintiff as copyright owner and refusal to pay a licensing fee to compensate for its use of the Works, demonstrates that [defendant] had actual knowledge, or at least acted with reckless disregard, of the fact that its conduct infringed upon Plaintiff’s exclusive copyrights in the copyrighted Works. . . . [The plaintiff’s entity’s principal] declares that the Works have lost significant value to their scarcity by the widespread and continuing dissemination resulting from [defendant’s] infringement. . . . However, based on the case law provided by Plaintiff, and in light of the high quality of the Works and unique techniques used to make them, I find [plaintiff’s requested] scarcity multiplier of six to be high in this case, and therefore reduce it to four. . . . [U]sing a multiplier of four, Plaintiff’s damages are $1,000 per each of the two photographs per year in licensing fees, for two years, multiplied by four, which amounts to $16,000 in damages. In addition to [plaintiff’s] damages from licensing fees, [defendant] profited from the use of [plaintiff’s] Works . . . [in the amount of] $5,500. Thus, [plaintiff] has at least $21,500 in actual damages that are presently known. . . . Using a multiplier of three on the $21,500 in actual damages that are presently known, Plaintiff is entitled to statutory damages in the amount of $64,500.”

Affordable Aerial Photography, Inc. v. Villa Valentina Realty LLC et al, 9-17-cv-81307 (FLSD 2018-06-07, Order) (Donald M. Middlebrooks)

2018-06-11T12:35:04+00:00June 11th, 2018|Copyright, Docket Report|