New Copyright Claims Board Rules in Favor of Photographer in First Case


The Copyright Claims Board (CCB) has made its first final decision with a photographer awarded $1,000 for a copyright infringement.

In a judgment on February 28, 2023, the CCB ruled in favor of the plaintiff, David Oppenheimer, who sued a lawyer named Douglas Prutton for using one of his photographs on his website without permission.

The CCB was set up in 2021 to help small copyright infringement claims of lower value giving photographers an alternative to hiring pricey copyright attorneys who generally balk at smaller monetary payouts of this kind.

The CCB’s First Case

According to Plagiarism Today, Prutton never denied using the photographer’s image, stating that his adult daughter had built the website for him and included Oppenheimer’s photo. Oppenheimer initially demanded $30,000 with Prutton counteroffering $500.

Oppenheimer filed a lawsuit in federal court but both parties agreed to move the case to the newly-formed CCB in April 2022.

A three-judge panel heard the case. Prutton’s defended himself in two ways, the first claiming fair use and the second invoking the unclean hands argument.

The panel found strongly in favor of the photographer under the fair use argument because the purpose and character of the use were for Prutton’s commercial website and he had used the creative works in its entirety.

Prutton had tried to argue that it didn’t affect the potential market because Oppenheimer had never successfully licensed the image, another fair use argument — but the court found that there is still a potential market for the photo.

The second argument was the unclean hands doctrine which accuses the plaintiff of acting unethically. Essentially, Prutton said the photographer is a serial litigant but the CCB dismissed this argument too citing that simply being a frequent litigator does not qualify as an unclean hands defense.

Deciding Damages

After finding in Oppenheimer’s favor, the court had to decide how much money to award the photographer. The minimum statutory damages that the court could award was $750 with the maximum set at $15,000.

Since Oppenheimer had not provided any evidence of actual damage to his business, the judges kept the monetary payment at the lower end with two awarding $1,000 and the third opting for $750.

Writing about the decision on Twitter, Devlin Hartline, a legal fellow, called the decision “interesting.”

“Many detractors of the CCB have claimed that it will be a windfall for ‘copyright trolls,’ which presumably means copyright owners who litigate multiple infringements (no matter the validity),” he writes.

“But this decision shows that the CCB will decide issues and award damages fairly… Cases like this one are not high dollar value, but they are extremely important to creators who cannot afford federal district court litigation.

“If this case is the canary in the coal mine, I hope many other creators, big and small, see how they can now enforce their rights at the CCB.”

Image credits: Header photo licensed via Depositphotos.