Executive Committee Member and Intellectual Property Group Chair Partner Brad D. Rose discussed the potential impact of a recent decision out of the U.S. District Court for the Southern District of New York with Law360. This week, U.S. District Judge Analisa Torres ruled in favor of photographer Robert O'Neil and confirmed that model and actress Emily Ratajkowski infringed on the photographer's copyright after posting his photo on her Instagram Stories. The image of Ratajkowski was initially shared on the photographer's website. Whether or not the photographer is owed statutory damages is up for determination. According to Law360:

Those statutory damages could range from $750 to $30,000 per infringement under the Copyright Act, which jumps up to $150,000 if the infringement was intentional.

Brad D. Rose, the chair of the intellectual property practice at Pryor Cashman LLP, told Law360 Wednesday that "in many instances these cases get resolved for what the photographer would generally receive as a licensing fee for the nature, extent and duration of the use that was made." Rose is not involved in the case.

"I would think that instead of spending the time and resources taking this matter to trial, that a business resolution could be reached that would ultimately be more than defendant wants to pay and less than what plaintiff thinks he is entitled to receive," Rose said.

He added that the damages the photographer recovers could clock in at the lower end of the above range since "this was a single-instance use that literally disappeared from Instagram within 24 hours of posting coupled with the photographer apparently conceding that he has no provable, actual damages."

Read a complete analysis of the case in the article linked below. 

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