California photographer Dana Hursey accuses The Berkshire Edge, an on-line newsletter about western Massachusetts, of downloading a copy of one of his photographs and placing it on the www.theberkshireedge.com website without authorization. The photo in question is a portrait of an executive who had been hired to oversee a pair of restaurants in Pittsfield and Lennox, Massachusetts, near the New York border. Hursey, who registered the copyright in 2017, asserts that the infringement was willful based on the fact that the Berkshire Edge is a “media company well versed in the need to license copyrighted content.” He further alleges that, in response to cease and desist letters, Berkshire took the photograph down, but has refused to address the damages for the time the photograph was on the site. Hursey seeks a finding of willfulness and the right to opt between actual and statutory damages of up to $150,000.
There has been a significant increase in copyright cases involving allegations that a photograph was downloaded and put on someone’s website without permission, driven in large part by advances in image recognition software that can scour the internet for reproduction of images. As I have noted before, the fact that a photograph is online does not make it free for the taking, even if it does not appear to have a notice of registration or an identification of the photographer. At the same time, many of the lawsuits involving this type of claim seek maximal statutory damages, which in many (possibly most) circumstances would not be awarded by a court. I discussed this type of case on Radio Entrepreneurs, you can listen in to find out more about it.
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