Removal of Digital Watermarks Actionable in US

Chris Gregerson, a Minneapolis photographer who was unrepresented by an attorney has successfully sued in the US District Court for the District of Minnesota related companies that used for advertising purposes two of his photographs without permission. Gregerson licenses his photographs via his web site. The photographs incorporate both a visible watermark, identifying his web site, and a digital watermark, which includes a copyright notice. He became aware of the infringement when he saw one of the photos in an advertisement for Vilana Financial in a Qwest telephone book, of which approximately 500,000 copies were printed. The defendants argued, unconvincingly, that they had validly licensed the photographs from a person that the judge found probably did not exist. § 1202(b)(1) of title 17 of the United States Code, added by the Digital Millennium Copyright Act, provides that "[n]o person shall, without the authority of the copyright owner or the law intentionally remove or alter any copyright management information" and the District Court found that this provision applies to the removal of a digital watermark, but did not decide whether a visible watermark was similarly covered. Judge Ann Montgomery awarded Gregerson $4,462 for actual damages, $10,000 in statutory damages due to copyright infringement, as well as $5,000 for removing digital watermarks contained in the photographs. Gregerson had a policy, posted on his web site, that he charges up to 10 times the normal licence fee for any photograph used without permission, and he claims to have enforced this in previous legal proceedings. In this case, the Court found that there was no basis for awarding actual damages of more than the fair market value of the licence for the first photograph, since the amount claimed by Gregerson would amount to a penalty resulting in profit not attributable to the infringement. However, Gregerson sought statutory damages for the second photograph and, where there is wilful infringement, as in this case, the Court can award statutory damages of up to $150,000 per infringement. Judge Montgomery ruled that $10,000 was an appropriate amount to serve as a deterrent and to provide compensation. For the full reasons for judgment (Gregerson v Vilana Financial Inc et al [court file 06-1164], see: http://www.cgstock.com/essays/gregerson_v_vilana_judgment_152.pdf Summary by: Tom Feather