"Nice try toots." Photographer's self-portrait at age 14, on the cover of a pornographic movie, is copyright infringement.

Lara Jade Coton is a professional photographer. (She has an interesting blog here.) When she was 14, she took a picture of herself playing dress up. She put that picture on a website. In 2007, when she was 17, she learned that her picture was being used to market a pornographic movie. Understandably, she was shocked. She found that TVX Home Video produced the movie and contacted them demanding they remove her image.

In response to her first email, TVX said they'd investigate her claim. She then responded and demanded money and confirmation that they wouldn't use her images again in the future. TVX's response was obnoxious:

Not only will you not be compensated for your photo we have turned this problem over to our attorney it seems the company my graphic company got the photo from on the internet is a public domain operation. You knew this when you originally sent us your scheming letter. Nice try toots. We are still going to remove you from the art, not because of your claim but let's face it your picture means very little to the film.

[Note to potential defendants -- if you think snarky responses like this are likely to make a plaintiff go away, you're wrong. Practice pointer. If your response includes the phrase "Nice try toots," you should probably take a day before you send it and then rephrase. Just my $0.02] . Coton responded to this email, which TVX couldn't resist responding to either (in all caps no less)

* * *

IM SURE BY THE END OF THE MONTH YOUR FACE WILL BE HISTORY. WE HAVSTOPPED SELLING THE DVD UNTIL COVER IS REPLACED. WE HAVE FURTHER CHECKED OUT YOUR NAME AND ITS NOT LIKE IT'S A HOUSE WHOLE NAME. ACTUALLY, REMOVING YOUR IMAGE WILL HELP IMPROVE THE SELL OF THE DVD.....SO FAR IT BOMBED.

(errors in original). After some exchanges with the graphics company, Coton sued for a number of theories, including copyright infringement, misappropriation of an image, and defamation. TVX didn't respond, and thus defaulted. A trial was held on damages.

Copyright damages

There are 2 different types of damages you can get in a copyright case: (1) actual damages & defendant's profits; and (2) statutory damages. Statutory damages can be very good and helpful. But there is a catch. You must timely register your copyright with the Copyright Office in order to try to get them. If you author original works, do yourself (or your future litigation counsel) a favor and register them. Do it now. It might help you. And it's cheap. You can try it yourself at the Copyright Office's Electronic Copyright Office. Seriously, you might thank me later on. (Statutory damages range from $750 to $150,000 (if infringement was willful). That's a pretty big stick to carry around and threaten against infringers.)

Coton didn't have a timely registered copyright registration on her picture. So the only damages she could pursue were her actual damages and TVX's profits attributable to the infringement. She had previously licensed one of her pictures for £2000 (about $3k U.S. at the time of trial). So, that's what she got in actual damages.

Regarding infringer's profits, a plaintiff must put forward the defendant's gross revenue, and then the defendant must prove what parts of the revenue are attributable to things other than the infringement. TVX had sold 189 DVDs for an average of $6.50/DVD, with $0.70/DVD attributable to things other than the infringement. Do the math and this yields another $1k in damages.

So, her total copyright infringement damages award is just over $4k.

Misappropriation of an Image

Florida law also protects against the unauthorized commercial use of another's name, portrait, photograph, or other likeness. See Fla. Stat. § 540.08. No question on liability here (remember, TVX had defaulted), so again just a question of damages.

Coton sought $770 for a licensing fee, $25k for harm to her professional reputation, and $25k in punitive damages. The Court refused the $770 request as Coton was already paid a license fee by way of the copyright damages. The Court found the $25k for harm to her reputation was reasonable. The Court refused the punitive damages request because there was no evidence that the defendants had been willful in infringing the copyright.

Defamation by Implication

Coton's final damage claim was for defamation by implication. Coton asked for $100k as "fair compensation for the humiliation she suffered as a result of having her photograph used in connection with the ... pornographic movie and related marketing materials." The Court found this figure reasonable.

Thus, total damages: copyright ($4k), misappropriation of portrait ($25k), defamation by implication ($100k).

Coton v. Televised Visual X-ography, Inc., Case No. 8:07-cv-1332, slip op. (M.D. Fla. Sept. 16, 2010) (Magistrate Judge Wilson)