Photographers are often disturbed to find that they are without a meaningful remedy when their work is infringed, because they didn’t register the copyright in their photographs. Infringement of a registered work would expose an infringer to statutory damages and attorneys’ fees, which is a lucrative proposition. Absent timely registration, though, a copyright owner is simply entitled to actual damages, which are difficult and expensive to prove. And unfortunately, in the case of an unregistered photograph, the cost of litigation almost always outweighs the potential recovery.
Photographers generate a large body of work, and even the most successful photographers often don’t register their work because of the time and expense involved. A recent case highlights this problem, and may offer hope to photographers.
In January of this year, well-known photographer Co Rentemeester sued Nike for copyright infringement over a photograph he took of Michael Jordan in 1984. The photograph was part of a spread that appeared in Life magazine, and Mr. Rentmeester alleges that he retained the copyright in the photograph. However, he didn’t file a copyright registration (a prerequisite for a lawsuit) until December 2014, thirty years after the photograph was taken.
In his complaint, Mr. Rentmeester alleges that Nike copied his work to make its famous “Jumpman” logo. At first blush, it seems that the photographer waited too long, since the statute of limitations for copyright infringement claims is three years, and Nike first used the Jumpman logo in 1987.
Mr. Rentmeester was likely emboldened to bring suit because of the US Supreme Court’s May 2014 decision in Petrella v. MGM, which concerned the screenplay to the 1980 movie “Raging Bull.” In that case, the Court ruled that the statute of limitations hadn’t expired because MGM continued to release the film on DVD and other formats, and every new release essentially reset the clock for copyright purposes, allowing the plaintiff to look back three years to get damages.
Given the Petrella holding, the volume of Nike’s sales, the cost of litigation and the possibility of Nike having to pay Mr. Rentmeester’s counsel fees, Nike might be inclined to settle this lawsuit by making a significant payment to Mr. Rentmeester – if it believes that a judge or jury might find infringement. However, Mr. Rentmeester didn’t register the copyright work until December of this year. Will that entitle him to look back three years and recover damages? Or will he only be entitled to seek damages for post-registration infringement? Time will tell.
While the facts of this case are unique, and most photographers won’t have infringement claims against businesses like Nike, the Petrella decision is a good development for copyright owners. But the real lesson is that it is worth some time and expense to register the copyright in photographs, especially ones that have enjoyed commercial success, and to enforce those copyrights in a timely manner.