On Wednesday in Federal District Court for the Southern District of New York a jury found after a seven-day trial that educational publisher John Wiley & Sons was liable for willful copyright infringement of two photos taken by Louis Psihoyos.
The jury found that John Wiley had exceeded the authorized print run limitations of Psihoyos’ photo of a triceratops skeleton and awarded him $100,000.00 for that use. In addition, Wiley printed Psihoyos’ photo of an 8-foot-long nesting dinosaur without permission. The jury decided this was willful infringement and awarded him $30,000.00 for that use.
With regard to a photo of fossilized dinosaur tracks, the jury found John Wiley liable for infringement, but not willfulness, and made no award. The publisher was cleared of an infringement claim for a photo of gastroliths that was also involved in the suit.
The Hon. J. Paul Oetken indicated that he would award Mr. Psihoyos fees and costs as the prevailing party under the fee shifting provisions of the Copyright Act and ordered additional briefing on Plaintiff's attorney fee award.
The photos were published in
Cutnell Physics 8e and
Visualizing Earth Science 1e.
(The Physics book is available on Amazon.com for $158.96 in hardcover and as little at $18 for a used paperback. The Earth Sciences book is available in paperback for $80.72, or as low as $13.73 for a used book.) Other publications involved were
Visualizing Geology 1e, Visualizing Geology 2e, and Visualizing Earth History 1e.
Very few copyright infringement cases against educational publishers ever go before a jury. Most publishers decide that it is better to settle out of court. Such a settlement allows them to keep the names of the publications, the actual circulations of the publications and the amount paid for the unauthorized use hidden from the public.
Last month we reported on
Tom Bean vs. John Wiley & Sons, Inc., a case where the judge found the defendant liable for copyright infringement of 26 images used in seven titles. This case was settled out of court. John Wiley is not required to disclose the specific titles in which the infringements occurred, or the amount of over printing of any of the titles.
Agents and photographers who have licensed images to John Wiley & Sons are advised to check their invoices and see if they ever licensed rights for any of the publications named in the Psihoyos care, or earlier editions. There is a very good chance that John Wiley did not properly compensate creators for any of the uses in these books and that other creators are entitled to additional compensation.
Susan Spilka, a spokeswoman for the John Wiley & Sons, said the Psihoyos case is not over and that the judge had scheduled a fee briefing in 21 days. She added that Wiley would likely appeal. "We're disappointed by the outcome and are concerned that the jury didn't understand the case," she said.
Dan Nelson, of Nelson & McCulloch LLP, the attorney representing Psihoyos said, "The jury's verdict sends a message to Wiley and other publishers that they will be held accountable for their insidious practices of publishing photographs without permission or in excess of permission."
For information about Nelson & McCulloch LLP visit
www.nelsonmcculloch.com. For answers to your questions, please contact Dan Nelson at 212.973.3426 or at
qaryfba@aryfbazpphyybpu.pbz.
More information about the decision go to
Law360, a LexisNexis company