June 18, 2013 | By Kurt Opsahl

3 Great Reasons That One Photographer's Not Getting $3.6 Million From Buzzfeed

CC-BY-ND by Tambako The Jaguar

Yesterday a photographer made headlines all over the web for filing a $3.6 million copyright lawsuit against Buzzfeed over its inclusion of a photograph of a soccer player head butting the ball in "The 30 29 Funniest Header Faces." Even in an era where copyright damages are stupendous, Kai Eiselein's demand seems like a lot—just shy of the record holding $4.1 million that People magazine paid for the Shiloh Nouvel Jolie-Pitt baby photos, and the picture's not nearly as cute as this tiger cub playing with a ball. 

Eiselein, who represents himself, alleges that Buzzfeed copied his photo off of Flickr in June 2010, and is also contributorily liable for 41 other websites publishing the image through June 25, 2011 (when he registered the copyright) and 23 websites publishing the photo thereafter. Eiselein asks for actual damages of $550 for each of the first 42 infringements, and the maximum statutory damages of $150,000 for willful infringement for each the last 23. Whoa! Quite a difference. As Eiselein appearantly understands, the giant hammer of statutory damages is not available until after you register the copyright.

Not satisfied with just $3.47 million for a photo he made available for people to view for free, Eiselein tosses in an infringement by yet another website (another $150k) and statutory damages under the DMCA's Section 1201 anti-circumvention provision (for copying the photo from Flickr), in the amount of $25,000, for a grand total of $3.645 million, plus his costs and attorneys' fees. 

An impressive sum, but will it hold up? For three reasons, no.

1. Under copyright law, statutory damages are per work infringed, not per infringement. So the statutory damages, for all of the infringements of Eiselein's photo, max out at $150,000. And the plaintiff must choose between actual damages or statutory damages, but does not get both.  

2. His DMCA claim is also wrong. The $25,000 in statutory damages is for violations of Section 1202, while a violation of Section 1201 comes to "not less than $200 or more than $2,500 per act of circumvention."

3. Since he represents himself, Eiselein cannot get attorneys' fees. As the Sixth Circuit explained, pro se plaintiffs should not get fees because a contrary ruling would threaten to create a “cottage industry” of lawyer-driven litigation, and Congress did not intend to “subsidize attorneys without clients.”

So this $3.6 million dollar lawsuit is really no more than a $152.5k lawsuit. Not a ticket to the ranks of the 1%, but still enough to get that new Tesla Model S and have some cash left over for the power bill. 

Or is it? Buzzfeed might respond with a motion to dismiss, contending that even if all the facts in the complaint were true, Eiselein has not made a valid claim. The DMCA claim is going to be a challenge for Eiselein, since he will have to convince a court that copying a photo from Flickr violates Section 1201's provision against "circumvent[ing] a technological measure that effectively controls access to a work." To add a level of difficulty, Eiselein argues that the Section 1201 violation stems from Buzzfeed refusing to remove the image from its server. It seems unlikely the court will find a violation, let alone impose the maximum damages allowed.

To assert his contributory liability claims, Eiselein must allege facts that show that Buzzfeed, with knowledge of the infringing activity, induced, caused or materially contributed to the infringing conduct of the other sixty or so websites. Eiselein, however, merely alleges that Buzzfeed is liable because it originally posted the images. This is not likely to pass muster. 

This would leave only the original infringement. That infringement allegedly occured before the registration, removing statutory damages from the equation, and leaves Eiselein with his actual damages of $550, plus costs (probably $350)—assuming Eiselein can overcome any other defenses that Buzzfeed might raise. 

Eiselein's multi-hundred dollar lawsuit might have brought him a little fame, but also serves to highlight the danger of extreme statutory damages. They both tempt creators to look to litigation as a path to profit and scare defendants into expensive settlements. While Buzzfeed doubtless has the resources to defend itself, your average blogger does not, and is too often left at the mercy of copyright trolls.


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