Richard Sobol filed this copyright infringement case in November, alleging that the defendants used a number of his photographs in a documentary concerning Barney Frank and seeking statutory damages. In June, the defendants filed their Answer and Counterclaims, asserting that Sobol made false statements to the Copyright Office in registering nine of the subject photographs just prior to filing suit. Specifically, the defendants allege that Sobol misrepresented that three of the photos had not previously been published, misidentified the date on which two of the photos were taken, and incorrectly identified himself as the photographer on three of the photos. They assert that Sobol’s submission to the Copyright Office did not include direct copies of the 1982 photographs, but instead screenshots from the defendants’ 2015 documentary (noting that three of the submitted photographs even included the pointer from a computer mouse, which would not have existed in 1982, the date the photographs were alleged to have been taken). They further allege that the tenth accused photograph is not the same as the one in the earlier registration Sobol was asserting as the basis for statutory damages. In response, Sobol withdrew his allegations concerning six of the photographs but continued to assert the remaining four. Defendants seek cancellation of the 2017 registration and a declaration that their use of the photographs was fair use under copyright law, and bring counts for violation of M.G.L. 93A and abuse of process. Sobol denies these allegations in his recent Answer to the Counterclaims.
While I don’t know what actually happened here and offer no opinion on the merits of this particular case, I would note that there is a growing trend of copyright cases being filed involving the use of photographs. This trend appears to stem from the increasing sophistication of software in identifying duplicates of an image on-line. Threats of suit follow, with the possibility of high statutory damages and attorneys’ fees used to extract settlements that far outweigh the actual value of the photograph and with no consideration of the nature of the use of the photograph. Often, these threats come through copyright assertion entities or law firms that specialize in this type of work, with no real proof of ownership or rights in the putative plaintiff.