A photographer from New York is suing the estate of late legendary Blues singer B.B. King and Universal Music Group for copyright infringement. The photographer claims that his photos of B.B. King were used on the cover of albums without his permission since the 1970s. He seeks damages from both B.B. King’s estate and Universal Music Group, which was responsible for the final packaging of the album. The question is whether the statute of limitations to bring the copyright infringement lawsuit against the defendants has run out or not?
Statute of Limitations
Under the Copyright Act, the statute of limitations to bring suit for copyright infringement generally runs after three years. The statute starts running on the date that the infringement is discovered. For example, say someone illegally copies a manuscript but the author of the manuscript does not discover that someone has been copying his work until much later, then the clock does not start ticking until that moment in time when the author becomes aware of such copying.
Sometimes, it is very difficult to establish when the copyright holder has become aware or when they have taken notice of such infringement. Sometimes, witness testimony and jury trial might be needed to iron out the details and to establish the exact date of such notice. The scenario presented here is a bit tricky. The photographer may be able to go after the defendants even though infringement began more than thirty plus years ago. The question now becomes when photographer became aware of such infringement.
To step back, another issue is establishing copyright. If there is in fact copyright to the photographs, then there is in fact a possibility of infringement here. However, there is case law that lays out what can be and what cannot be copyrighted. A photograph is fair game. Generally, photographs do have copyrights on them. However, there are times when a photograph does not meet the level of creativity for it to be copyrightable.
One of the requirements that need to be met before something can have a copyright to it is creativity. The creativity standard is an easy one to meet, as established by case law. It is most likely the case that the B.B. King photos do meet the threshold and therefore, the photographer has copyright over them. Another factor that needs to be considered is whether the photos were in fact the work of the photographer and not someone else’s. If it is the property of another, the photographer has no right over them and hence has no claim of infringement against said defendants. This is hard to establish. Defendants might bring this claim forward as a counter.
As for awarding damages, there is a court split on this. Some courts says that the copyright holder can recover damages for all infringement activity that took place but the suit must be filed within three years from the last infringing act. Other courts will say that the copyright holder may only recover damages only for the infringement that took place within the three years leading up to the lawsuit. Obviously, there are pros and cons to both approaches. The bottom line is that establishing damages is not as easy as it seems, especially not in the context of copyright infringement.
Some states don’t even go by either of these approaches. They will merely apply statutory damages, which is a set amount that will be given to the copyright holder. Generally the damage recovery set out in the statute is between $750 and $30,000. Intentional infringement, meaning infringement that was done so intentionally and not just negligently or unknowingly, can raise the statutory damage amount that can be awarded to the copyright holder.
Safeguards against Infringement
In conclusion, the photographer may have remedies but this all depends on whether he even has a copyright to the work and if so, how the damages should be assessed. Fair use is a defense to copyright infringement. However, in this case, it does not seem like the defendants can bring forth a fair use argument to the table. Fair use forgives infringement if the infringement is done for certain reasons, such as if the work was used for nonprofit or educational purposes. Here, there is no indication that the defendants used the photo for any other reason than to make a profit off of the music. They most likely cannot win on a fair use argument.
Last, licensing is a way around infringement. If the defendants had sought a license from the copyright holder, then they would not have committed infringement and could have retained a profit on those albums that used those photos (albeit with a royalty given to copyright holder). There are many ways to have access to a copyrighted work without actually infringing.
Authored by Sam Behbehani, LegalMatch Legal Writer