The fine art photographer behind a growing list of copyright infringement lawsuits is about to win $25,000 in statutory damages in a suit against event website operator Plot Commerce.
If a federal district court adopts a magistrate judge’s recommendation, the money, plus attorneys’ fees, will be Jennifer Rondinelli Reilly's first court award resulting from the alleged unauthorized use of her copyrighted “red lips and a microphone” photo, according to Bloomberg Law data.
Reilly has sued Twitter Inc., BuzzFeed Inc., Instagram Inc., YouTube Inc. and several other companies over the photo. So far only the case against Plot Commerce has resulted in a judgment. Two other cases are pending and Reilly has dropped the other five—at least two due to a settlement.
Reilly had disclosed that her actual damages in the Plot Commerce case were only $3,052, based on a licensing fee that she would have charged the company, according to Magistrate Judge Barbara Moses of the U.S. District Court for the Southern District of New York. But both the Copyright Act and the Digital Millennium Copyright Act allow plaintiffs to elect to recover statutory damages instead of actual damages.
Under the Copyright Act, courts may award up to $150,000 in statutory damages per “willful” infringed work. Under the DMCA, courts may award up to $25,000 for each violation.
The magistrate judge recommended that $15,000 under the Copyright Act and $10,000 under the DMCA would be sufficient to compensate Reilly for the lost licensing fee, punish the defendant and deter future infringers.
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