Copyright Claims Board Awards Photographer Minimum Damages

Last week, a California jury awarded photographer Scott Hargis some $6.3 million in damages in his case against Pacifica Senior Living Center. The amount represented the maximum in statutory damages that could be awarded, namely $150,000 for each of 43 separate images at issue.

The case made headlines for the large damages amount. It’s extremely rare, outside of default judgements (where no defense is presented), for anyone to win the statutory maximum, especially from a jury. 

To be clear, the Hargis case had several factors that pushed it toward that outcome. The case involved a large number of images, Hargis attempted to settle the case multiple times and the defendant continued to use the images in question even after being warned that they were infringing.

Still, it is unlikely that $6.3 million is the amount that Hargis will collect. Not only can the award be reduced, but it’s not uncommon for sides to reach a settlement for less to avoid the expense of going through appeals. 

But, as interesting as that case is, it is just one extreme. To that end, the Copyright Claims Board (CCB), also handed down a final determination last week, this one showing us the opposite extreme.

The case pitted photographer Daniel C Corjulo against businessman Scott Mandrell. Some of the facts of the case were similar to the Hargis case, namely a website using a photographer’s images without permission and refusing to remove them, but the outcome could not have been much more different.

Though Corjulo emerged victorious, he was only awarded $750 per infringement or $2,250 in total for the three works.

The reasons why are worth examining, especially as photographers are continuing to figure out how to best protect their work and if/how the CCB fits into those plans.

The Basics of the Corjulo Case

This site has covered the Corjulo case twice this year already. The first was in May and the second was an update in October.

The facts of the case were fairly straightforward. In 2016, Corjulo embarked on a fourth month trip down the Mississippi River, where he was taking photos for a book he was collaborating with another journalist on. He was joined for some of that time by Mandrell, who would later become the owner of the boat used for the trip and create a site indirectly promoting the boat and his guide services.

On that site, Mandrell used three of Corjulo’s images. He did not deny the use of the images nor did he say he had permission, beyond an implied license, though he did argue that his use was a fair use.

That said, the case was best known for how long it was dragged out. It was the Eighth case filed with the Copyright Claims Board, as the initial claim was filed in June 2022. Mandrell didn’t respond to the claim until it was almost headed for a default decision. 

After he started to participate, the case continued to drag on, with testimony and responses being filed as late as November 2023. Now the board has finally ruled, and that ruling is, largely, in favor of Corjulo.

When looking at the legal aspects of the case, the board almost completely sided with Corjulo. The board ruled that Mandrell had no license to use the works (implied or otherwise), that Mandrell’s use was not a fair use (despite not making a determination of if the use was commercial), and ruled that each of the photographs qualified for separate statutory damages.

Where things went less well for Corjulo was when determining the amount of those statutory damages. According to the board’s final determination, there was no evidence that Mandrell gained anything through the use of the images and there was no evidence that Corjulo had ever licensed the images or any similar photographs for payment.

In short, there was no evidence of actual damages, meaning that the board felt it was appropriate to award the statutory minimum, $750 per infringed work. 

This means that, for three infringed images, Corjulo was awarded just $2,250 in statutory damages.

Though a direct comparison of the cases is unfair, one was heard by the CCB and the other by a jury in a federal court, the $149,250 difference in damages per work between the cases is enough to get almost anyone’s attention. Why did Hargis get 200 times more per work than Corjulo? 

The answer has more to do with the system than what either photographer did or didn’t do.

Why Statutory Damages Are So Varied

We don’t know why the jury awarded as much as they did. While we can guess at the factors that likely pushed them to do so, including the defendant being a large company that is accused of infringing an individual photographer, there’s no sure way to know.

The CCB, however, outlined its rationale clearly, and it’s surprisingly succinct: With no provable actual damages, they decided to award that statutory minimum, which is $750 per work.

According to the board, this follows various federal courts, which have made similar decisions in the past. However, this is not necessarily a hard rule that is followed by every judge or jury. As the CCB noted in their determination, “Courts have wide discretion to award statutory damages as long as they fall in the statutory range.”

In a federal court, depending on the circumstances of the case, that range is between $750 and $150,000. At the CCB, that range is narrowed between $750 per work and $15,000 per work. 

However, in both places that is a wide range. In federal courts, it represents a 200x range for damage awards and even the CCB has a 20x range. When you combine with this the broad discretion courts have, that makes it difficult to predict or estimate what the likely damages are in any particular case.

But this isn’t necessarily a bug or a problem with the copyright litigation process. It’s very much intended as a feature. Copyright infringement cases vary wildly, and courts need a great deal of leeway in how to respond to them.

While this can make the final damage awards impossible to predict, it does give the courts flexibility. However, that doesn’t make it any less frustrating for plaintiffs when they hear about two somewhat similar cases, like these, resulting in outcomes that are different by 200x. 

However, it drives home the need to make a strong case for statutory damages, including showing any actual damages that did occur.

Bottom Line

For many, this might deter them from using the Copyright Claims Board. I hope that isn’t the answer that many get. 

The CCB has made it clear that it will only grant statutory damages relative to shown actual damages. As such, if you are going to file with the CCB, it’s important to have evidence of actual damages. This can include licensing rates for similar work or proof that the respondent materially gained.

But that doesn’t mean that it’s the only factor the CCB or a federal court will consider.

In Hargis’ case, the defendant is one of the largest senior housing companies, they used the photographs on a clearly commercial website and gained obvious benefit from them. Actual damages are much more obvious, but this also greatly heightens the potential harm to the original work. Couple that with Pacifica’s refusal to remove the work or to settle the case, and it’s easy to see why a jury found the way they did.

Compare this to Mandrell, who is an individual who used only thumbnails of the images, and the commercial nature was dubious enough that the CCB didn’t rule either way on it. While Mandrell may not have responded to the alleged infringement well, the calculus is still very different when looking at statutory damages.

Is that 200x less than Pacifica? I’m less sure. But if you’re considering a copyright lawsuit or filing a case with the CCB, these are the kinds of issues you need to look at to determine the likely damages you’ll win and whether the case is worth it at all.

Even with the CCB, it is often easier to just move on.