Tampa attorney Richard A. Harrison, who represented Lara Jade, said afterwards that the court decision sends a strong message to those who help themselves to the creative work of others without permission or compensation. “Be prepared to get sued and be prepared to lose. Copyright infringement can be an expensive proposition.”
Three years ago Lara Jade, then a 17-year-old photography student and rising star on flickr, discovered that a self-portrait taken when she was 14 and hosted at DeviantArt was being used as cover art for the film Body Magic [“Hustler’s Highest Rated”]. When she wrote to TVX Burge tried to claim [you may want to skip forward if you’ve heard this one before] that it was all the fault of the designer. Then he turned on that famous – and illiterate – southern charm:
“I’M SURE BY THE END OF THE MONTH YOUR FACE WILL BE HISTORY. WE HAVE STOPPED SELLING THE DVD UNTIL COVER IS REPLACED. WE HAVE FURTHER CHECKED OUT YOUR NAME AND ITS NOT LIKE IT’S A HOUSE WHOLE NAME. ACTUALLY, REMOVING YOUR IMAGE WILL HELP IMPROVE THE SELL OF THE DVD.. SO FAR IT BOMBED. THEY ARE REMAKING THE COVER AS WE SPEAK SO YOUR TEN SECONDS OF FAME WILL SOON COME TO AN END.”
But TVX didn’t just save the schmooze for their emails to Lara Jade: whenever they found the story reported they also had a go at smearing her in public. At EPUK the pseudonymous TVX Fan responded to the story:
“What most people don’t realize is that Lara Jade is not the sweet virgin she has advertised herself as in this hillarious event. No one has any clue if Lara Jade is in fact a real person, as she refuses to divulge any identification to anyone..we smell a scam.”
Talk about getting it wrong. The smutsters probably reckoned the chances of being pursued through the courts by an allegedly non-existent foreign teenager were infinitesimally small. And it’s true that most photographers, never mind most 17 year olds, would have given up long ago. But not Lara Jade: instead, she got herself a lawyer.
And so in July, after three years, and now an established professional photographer complete with agent and growing roster of clients, Lara Jade travelled to Florida and finally got her day in court.
Both the verdict and the award are interesting for a number of reasons. For one thing there had been predictions that the suit would fail on technical grounds, probably jurisdictional. A foreign citizen suing a Texas company in a Florida court provided too many potential loopholes for Burge to wriggle out through, ran this thinking.
For another there was the matter of US copyright law, which provides for punitive damages of up to $150,000 per infringement, but only if the image is registered with the US Copyright Office. Lara Jade’s self-portrait wasn’t registered, and US courts are reluctant to award substantial damages in such cases. In other words even if she won there was the distinct possibility that no meaningful damages would be awarded.
But come judgement none of that mattered. Describing the behaviour of Burge and TVX as “morally wrong and tortious”, Judge Thomas G. Wilson awarded $129,173.20 in damages for copyright infringement, misappropriation of her image and damages to her reputation. Wilson also charged that the harm suffered was compounded by Burge’s “offensive and belittling” treatment of her after the misuse of her photograph was discovered.
Doubtless some will argue that had the image been registered the damages could have been higher; but while that may be true it misses the point. The case was about reputation, not money, and both the verdict and the award show that in the right circumstances it’s possible for a determined photographer to successfully sue an infringer in the US – even if the photographer is foreign and the image unregistered.
As Lara Jade writes on her flickr stream and blog:
“As photographers using the internet, we often get people stealing our work…I hoped that fighting this case would give inspiration to many other young (and older!) photographer’s out there that copyright IS an issue. You can’t just go and steal an image that doesn’t belong to you and use it for commercial gain – if you’re going to steal images online then people WILL find out and they CAN sue you!”
TVX previously described the case as “hillarious” [sic]. So who’s laughing now?