By: Miranda Glisson

The internet has made it incredibly easy for people to find, copy, and paste other’s photography. But what are the legal protections available for photographers? How likely is it that artists, well-known or novice, can find every unlawful use of their copyrighted work? In a groundbreaking case, photographer Scott Hargis made history with a record-setting damages award for the unauthorized use of his photographs. 

Introduction 

Hargis is an architecture and interiors photographer, living in the San Francisco Bay Area, with worldwide clientele. Hargis was hired by Atria Management Company to take photos of several senior living facilities. Another company, Pacifica Senior Living Management, then acquired the senior living properties from Atria and used 42 of Hargis’s photos depicting these properties on their website, without obtaining Hargis’ permission. Hargis’ agent informed Pacifica that those photo licenses were not transferable from Atria to Pacifica, and representatives of Hargis requested Pacifica to take Hargis’ images off of their website. However, Pacifica refused on multiple occasions, and Hargis brought suit against Pacifica for Copyright Infringement. 

Willful Copyright Infringement 

Statutory damages are damages awarded by a judge or jury in a copyright infringement suit to a copyright owner. The amount of statutory damages awarded to a copyright owner when copyright infringement is found depends on whether the infringement is considered innocent or willful. A court may find innocent infringement when the defendant, or infringer, can demonstrate they were “not aware and had no reason to believe that the activity constituted an infringement.” However, innocent infringement cannot be found when there was a proper copyright notice on the work, as found in Hargis v. Pacific Senior Living Management. 

Willful infringement does not require that the defendant have actual knowledge of their infringing actions. Rather, it is only required that there is a showing by a preponderance of the evidence that the infringer “acted with reckless disregard for, or willful blindness to the copyright holder’s rights.” If copyright infringement is found and determined to be innocent infringement, the statutory maximum is $30,000 per copyrighted work infringed upon. The statutory maximum for willful infringement is much larger at $150,000 per copyrighted work. However, even if willful infringement is found, the fact-finders must determine how much statutory damages should be awarded to the Plaintiff between the minimum of $750 (also the minimum for innocent infringement) and the maximum of $150,000 for willful infringement. 

Hargis v. Pacific Senior Living Management: $6.3 Million Jury Verdict 

Legitimate copyright infringement cases will often end in settlement instead of going to trial. However, in the case of Hargis v. Pacific Senior Living Management, Pacifica refused to settle leading to the largest jury verdicts for copyright infringement of photographs. The United States District Court, Central District of California jury found that Pacifica infringed on all 42 of Hargis’ photographs. the evidence supported a finding of willful infringement due to Pacifica ignoring Hargis’ request for payment and refusing to take the photos off the website for a year and half after the suit was filed. They found each infringement to be willful and asserted the maximum statutory damage amount of $150,00 for each of the 42 photographs, leading to a $6.3 million jury verdict. 

Protection of Photographers Works in the Growing World of AI 

In 2019, Copytrack, a global company that enforces image rights, investigated how many photographer’s images are stolen on the internet. They estimated that more than 2.5 billion images are stolen daily. Hargis v. Pacific Senior Living Management demonstrates how seriously U.S. courts view the infringement of photographs and the financial impact unlawful uses of copyrighted works can result in. Currently, with the ever growing world of AI, more lawsuits are popping up, with claims that AI companies are infringing on their copyrights by using the owner’s images to train AI Models.  

With the favorable results for Hargis and his images, willful use of copyrighted images has the potential to cost AI companies millions, maybe billions, as AI models need to see between 200-600 images of a particular concept before it can replicate it. Further, training a model from scratch, or fine tuning one, can still require thousands of data points. With heaps of data points and works used to train AI models, developers of these models could be on the hook for massive fines depending on how willful the use of the copyrighted work is found. How courts and companies will approach this problem in the future is unknown, however it has the potential to cause ripple effects in AI development.

Conclusion 

Hargis v. Pacific Senior Living Management sets a powerful precedent for protecting photographers’ right in the growing digital era and the severe financial consequences of infringement, especially willful infringement. Photographs, and other copyrighted works, are exposed to misuse and as courts began to evaluate AI’s use of copyrighted material, the lessons from Hargis v. Pacific Senior Living Management may play an instrumental role in decision making and serve as a warning to infringers.