A second professional photographer has filed a copyright infringement lawsuit stemming from the 2018 midterm election elections—this one against the state attorney general’s campaign.
Photographer Michael Schwarz sued Friends of Chris Carr in federal court in Atlanta, claiming that a copyrighted photograph he shot of Carr’s opponent, Charlie Bailey, was used without his permission in a campaign video promoting the attorney general’s re-election. The suit was filed Jan. 18.
Schwarz registered the photograph copyright on Oct. 31—the day the Carr video containing Schwarz’s photo appeared online, according to the complaint. Federal copyright law allows for statutory damages as high as $150,000 for each infringement. In addition to damages, Schwarz seeks attorney fees and legal costs.
Schwarz, based in Atlanta, has published photos in USA Today, Fortune, Sports Illustrated, Time, Newsweek, Life, National Geographic, The New York Times, Wall Street Journal, Businessweek and Forbes, according to his website. His corporate clients have included The Home Depot, UPS, Nike, The Coca-Cola Co., Harvard University, Brown University, Georgia Tech, and The Carter Center.
Schwarz co-counsel Joel Rothman of SRIPLaw in Boca Raton, Florida, referred requests to his co-counsel, Long Island photographer-attorney Richard Liebowitz, who could not be reached for comment. Liebowitz has filed more than 600 copyright infringement lawsuits for photographers who claimed their images were misappropriated and published without permission, according to online magazine Slate, which dubbed him “the copyright enforcer.”
On Monday, Atlanta attorney Doug Chalmers, a managing member of Chalmers & Adams and counsel to Carr’s campaign, said in a written statement that Carr and his campaign staff “respect the valid intellectual property rights of others and feel strongly about the rule of law.”
“The alleged photograph in question had no copyright notice,” Chalmers said. “As of now, neither the photographer nor any representative of his has reached out to the Carr campaign to notify it of any alleged rights violations or to ask that the photograph be removed. We are confident that, barring political posturing, this misunderstanding can be resolved.”
In early January, Atlanta commercial photographer Kevin Liles sued the Georgia Republican Party and Gov. Brian Kemp’s campaign, contending they used his copyrighted photograph of Democratic challenger Stacey Abrams in a negative ad without permission. Liles’ 2017 photograph previously had been published by The New York Times. Liebowitz and Rothman, an adjunct law professor at Emory University, also represent Liles.
Formal registration of a copyright is not required in order to have a copyright infringement claim, Judge Stanley Birch, a mediator and copyright expert who retired from the U.S. Court of Appeals for the Eleventh Circuit, told The Daily Report.
A copyright “comes into existence by operation of the law when you have a tangible expression that is made,” Birch said. That includes photographs “by professional photographers or anyone else.”
Birch also said he knows of no exception or exemption from copyright infringement statutes for political campaigns.
“The problem with political campaigns is that they may not have the level of sophistication or understanding” of copyright law, Birch said. “But that doesn’t exempt them from a violation.”
“I suspect it’s just a negligent thing on the part of the campaign,” he added. “It’s thoughtless, really. The copyright area of the law [is one that] most people are totally unaware of.”
Birch said the cost of litigating a copyright complaint is what often discourages photographers and other artists from pursuing infringers in court, especially when “commercial usage of the photograph hasn’t generated much money.”
As a result, he said, the public doesn’t see many copyright cases.
“The amount of damages available to the plaintiff artist or photographer is fairly limited,” Birch said. “If there’s an intentional infringement, that opens the door to attorney fees and other things. If it’s just negligent infringement, the time and effort you would put into pursuing it has, probably, a minimal reward.”
“Ignorance of the law is never a defense,” Birch added. “What all these political campaigns need to know is, ‘Hey, before you use a picture, you may want to find out who owns it.”
Correction: This story has been updated to reflect that the photo in question is of Charlie Bailey.