Copyright: Don't Mess with Texas ... Unless They Steal Your Cowboy Silhouette
Recently, Zeke MacCormick reported that the Texas Department of Public Safety (TDPS) infringed on photographer David K. Langford right's to a photo titled "Days End 2". The photo in question, a silhouette of cowboy shouldering a saddle (as seen above), was used by the TDPS as a backdrop to Texas vehicle inspection stickers throughout several Texas counties. Mr. Langford is now suing for damages relating to the estimated 4.5 million reproductions of his photo. (Photo: Left: According to photographer D.K. Langford, this is the Texas vehicle inspection sticker designed from his photograph.Right: This photograph is exhibit A in Langford's suit vs. the Department of Public Safety and the Texas Department of Criminal Justice. Courtesy photos)
Mr. Langford, a very talented photographer, apparently shot this photo in 1984, and later published the photo in a Texas Parks and Wildlife magazine. Turns out, in Texas, the graphic design for vehicle inspection sticker is performed by prisoners of the state. One of the prisoners (with a pretty good eye for photos) scanned the photo into the system and was somehow later used in the sticker production. Although likely VERY boring in reality, I'd bet it would be great to hear not only how the graphic design department at the Texas Department of Criminal Justice got its scrappy start (would probably be the worst made-for-TV movie ever created), but how this picture ended up getting imprinted on the back of roughly 5 million stickers.
As opposed to the video or music industry, the photography industry is more often overlooked when a reporter writes about an infringement suit. However, as reported by Walter Olson, in Overlawyered, the courts don't always forget the lesser publicized photo industry (Taster's Choice Guy awarded 15.6 million dollars in jury verdict). Do you remember Taster's Choice Coffee (as seen right)? Turns out Nestle didn't properly acquire the rights to the popular coffee photo and a jury found that Nestle owed the model 5% of profits and $330,000 totaling $15.6 million dollars (not too shabby for a photo shoot).
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In determining damages when appropriating an image there are two monetary damage remedies courts often utilize for Copyright Law. The plaintiff can attempt to calculate the actual damages he suffered or attempt to receive statutory damages (Section 504 of the Copyright code found here), and according to the reported facts of this Silhouette case, the question of damages is the only question left to answer (I say that with only slight hesitation). Actual damages is compensation for the loss or injury that actually occurred, and these damages will vary greatly from case to case. Statutory damages are more structured and uniformed. Section 504 of the Copyright Code provides how statutory damages are calculated:
"[T]he copyright owner may elect, at any time before final judgment ... instead of actual damages and profits, an award of statutory damages ... [which is] a sum of not less than $750 or more than $30,000 as the court considers just."
And in some cases if the defendant is found have willfully infringed on the plaintiff the damages can be higher.
So what damages will chosen? Likely actual damages because the case is seemingly so strong. However, this could have easily been avoided. I recognize that state operations require a lot of hands (regardless if some of them are in handcuffs), but this doesn't absolve them from properly reviewing their intellectual property. IP protection should be a part of every entity operations, no matter whether it's the state of Texas or AnySmallCompany LLC. If not, you open yourself up to serious damages. Most often photographers are willing to allow use of their images, you just need to contact them and provide reasonable payment. Langford mentioned himself, "If they'd called me first, I'd bet we'd have a deal in five minutes."
