Thursday, April 30, 2009

Copyright in Aerial Photos

In November, the New Jersey district court threw out the $20,000,000 copyright infringement claim of an aerial photographer due to the running of the statute of limitations on the claim. Bruss v. Berger, 2008 WL 5111284. This case is a good reminder that copyright claims must generally be filed within 3 years after the claim accrues and that the damages for copyright infringement in real estate cases have the potential to be significant.

In this case, in 1986 the photographer took aerial photos of the Paramus and Monmouth malls for a real estate developer. The developer allegedly borrowed the negatives with the understanding that he would order prints from the photographer. The developer allegedly used the photos to sell the properties and never compensated the photographer.

The photographer alleged copyright infringement and claimed $20,000,000 in damages.

The case is unclear as to why the photographer waited so long to bring his claim. What is interesting is that the court did not suggest that the photographer's claim was meritless. The court also did not address whether the copyright in the photograph had been registered prior to bringing the case (copyright registration is a prerequisite to filing an infringement law suit). Nonetheless, the court did not hesitate to dismiss the photographer's claim and rightly so. The clear lesson learned here is to be aware of the limited time allowed to bring copyright claims.

It's fun (if you're a lawyer) to speculate as to what the result would have been if the case had been brought before the expiration of the statute of limitations. Assuming that the developer made copies/prints, there may have been infringement. But how much would that infringement have been worth? In a case recently blogged about on the Photo Attorney blog, a photographer obtained a $12 million verdict for the unauthorized use of her photographs to sell high-end homes.

Under the copyright act, the photographer's damages are measured, at first, by the profits obtained by the infringer. In the Bruss case, the damages would, initially, have been the $20,000,000 alleged. It would then have been the burden of the infringer to prove what portion of the profits were attributable to factors other than infringement of the copyrighted work. In a real estate case, its easy to imagine how other factors could be demonstrated to be the driving force in determining the selling price (square footage, condition of the building, location, quality of existing tenants, etc.). However, if the photographer had timely registered his copyright, he would have been entitled to statutory damages of up to $150,000 per infringed photograph without having to prove damages!