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The Intellectual Property StrategistFeaturesCopyrightsIntellectual PropertyInternet LawLitigation

Photographs on the Internet: Circuit Courts Examine Copyright Infringement

By Kyle-Beth Hilfer
June 01, 2019

Two April 2019 circuit court cases clarified copyright infringement of photographs on the Internet. In a case of first impression before the Ninth Circuit, the court opined on the degree of financial benefit required to prove vicarious liability for copyright infringement. In addition, the panel examined jury instructions regarding willfulness in the context of statutory damages. In the Fourth Circuit, the court examined how the infringer's motives could affect the affirmative defense of fair use. Both cases serve as cautionary tales for those who takes photographs for their websites from the Internet without investigating copyright rights.

The Ninth Circuit on Proving Vicarious Liability for Copyright Infringement

Vicarious Liability and Willfulness

In Erickson Productions, Inc.; Jim Erickson v. Kraig Rudinger Kast, No. 15-168801, D.C. No. 5:13-cv-05472-HRL (9th Cir. April 16, 2019), the defendant Kast had hired Only Websites, a website developer, to revamp the website of his business Atherton Trust. Early in the design process, Kast asked Only Websites to use one of Wells Fargo's websites as a model for the redevelopment project. According to the court, “Kast also stated in emails that he wanted to mimic Wells Fargo's website.” The Wells Fargo website contained photos that plaintiff Erickson had licensed to the financial institution.

Only Websites used three of Erickson's photos on the Atherton Trust developmental website without permission. The record does not indicate whether the developer did this unilaterally or at Kast's request. The circuit court decision reports that Kast knew of the photos at least as early as January 2011. He did not, however, order Only Websites to take them down until six months later, when he received a cease and desist letter from plaintiff Erickson. While Kast ensured the photographs' prompt takedown at this juncture, he refused to pay any damages. Instead, Kast blamed the website developer for the unlicensed use of Erickson's copyrighted photographs.

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