Statutory damages for copyright infringement may range beween $750 to $30,000 per work. 17 U.S.C. § 504(c)(1). Within that range, the court has wide discretion in selecting a specific award amount. 

In McDermott v. Kalita Mukul Creative Inc., No. 23-CV-01274, 2024 WL 4799751 (E.D.N.Y. Nov. 15, 2024), a freelance photographer, Matthew McDermott, was hired by the New York Post to take photos of NYC police commissioner Keechant Sewell, paying him a day rate of $470. McDermott kept the copyright to those photo and granted a license to the New York Post to use the photos for a newspaper story. 

The defendant, Kalita Mukul Creative ("KMC"), ran community-focused newsletters, and published a bio on Sewell that included one of McDermott's photos (apparently sourced from an unrelated Instagram account), which generated less than 100 views and no revenue. 

Represented by the Sanders Law Group, McDermott sued KMC for copyright infringement. KMC was defended by Covington & Burling, apparently pro bono. The defendant conceded summary judgment on liability, and the court held a trial on damages. The court ruled that the infringement was neither willful nor innocent. 

“Awards of statutory damages serve two purposes—compensatory and punitive.” Fitzgerald Publ'g Co. v. Baylor Publ'g Co., 807 F.2d 1110, 1117 (2d Cir. 1986). “When determining the amount of statutory damages to award for copyright infringement, courts consider: (1) the infringer's state of mind; (2) the expenses saved, and profits earned, by the infringer; (3) the revenue lost by the copyright holder; (4) the deterrent effect on the infringer and third parties; (5) the infringer's cooperation in providing evidence concerning the value of the infringing material; and (6) the conduct and attitude of the parties.”  Bryant v. Media Right Prods., Inc., 603 F.3d 135, 144 (2d
Cir. 2010).  

McDermott sought statutory damages of about $13K based on an estimated license fee of $2,555 "obtained by using an online calculator from Getty Images" which he then quintupled. The Court rejected the five-times multiplier for a case involving non-willful infringement. Cf. Reiffer v. NYC Luxury Limousine Ltd., No. 22-cv-2374, 2023 WL 4029400, at *9 (S.D.N.Y. June 15, 2023) (willful conduct where the defendant “intentionally altered the image when it posted the Work to its website to delete Plaintiff's name”); Tetra Images, LLC v. Grahall Partners, LLC, No. 19-cv-05250, 2021 WL 2809566, at *4 (S.D.N.Y. July 6, 2021) (willfulness following default); Mango v. BuzzFeed, Inc., 356 F. Supp. 3d 368, 375 (S.D.N.Y. 2019) (appropriate hypothetical licensing fee estimate based on previously negotiated licenses and willful conduct).

The court also rejected the estimated license fee of $2,555 because it would provide Plaintiff with an impermissible “windfall recovery.” Peer Int'l Corp. v. Luna Records, Inc., 887 F. Supp. 560, 569 (S.D.N.Y. 1995) (Sotomayor, J.); see also Philpot v. Music Times LLC, No. 16-cv-1277, 2017 WL 9538900, at *8 (S.D.N.Y. Mar. 29, 2017) (“[W]hile there need not be a direct correlation between statutory damages and actual damages, it has generally been held that the statutory award should bear some relation to actual damages suffered.”), report and recommendation adopted, 2017 WL 1906902 (S.D.N.Y. May 9, 2017). 

Under the factor of "the revenue lost by the copyright holder," the court noted that the online calculator from Getty Images used parameters that did not match the facts of the case. The court agreed that “the submission of a screenshot of the Getty Images price calculator on its own is not sufficient to establish a reasonable value for a licensing fee absent evidence that the screenshot in the calculator is for a use comparable to the alleged infringing use.” Proimos v. Madison Prop. Grp., No. 20-cv-4832, 2021 WL 4391238, at *2 (S.D.N.Y. Sept. 24, 2021).  

The court also found that "this case makes for a poor deterrence vehicle." For example, the defendant had no history of copyright infringement and immediately removed the Photo from its website after being sued. See Golden v. Michael Grecco Prods., Inc., 524 F. Supp. 3d 52, 67 (E.D.N.Y. 2021) (concluding that “[b]ecause [the defendant] has acted in good faith, immediately removed the offending post upon notice, and likely caused little or no actual damages, a statutory damages award . . . is more than sufficient to advance the purposes of the Copyright Act” and declining to award fees). Because "a large statutory damages award would seek to encourage precisely the kind of corrective behavior Defendant has already engaged in, such an award is inappropriate in this case." See Tabak v. Lifedaily, LLC, No. 21-cv-04291, 2021 WL 5235203, at *5 (S.D.N.Y. Nov. 9, 2021) (explaining that a plaintiff's appeals to deterrence must specifically account for the defendant's conduct because deterrence is a matter of “degree”).

[I]t is abundantly clear to the Court that Defendant never intended to infringe on Plaintiff's copyright and does not intend to do so in the future. There is no future violative conduct to deter. 

The court also criticized McDermott's "failure to to put forward information about the licensing fee for the Photo, despite it having been available to him." 

     On facts like these, there is precedent to support an award at the very bottom of the statutory range. In Golden, the court found that an infringer's unauthorized, commercial use of a photo taken from a social media platform was not innocent, but nevertheless awarded only $750. 524 F. Supp. 3d at 67. Likewise, in another case, the court awarded $750 when the infringing party, inter alia, “conceded liability and offered plaintiffs a settlement probably in excess of the actual profits it received” and the defendant's business was “small” with only “limited revenue.” Arclightz & Films Pvt. Ltd. v. Video Palace Inc., 303 F. Supp. 2d 356, 363 (S.D.N.Y. 2003). The court found that minimum award to be sufficient even though the defendant's infringement was willful, as the defendant “openly rented and sold unauthorized copies of [the infringing work].” Id. at 362. Nevertheless, here, the Court is cognizant that the award should not be “divorced entirely from economic reality.” EMI Ent. World, Inc. v. Karen Records, Inc., 603 F. Supp. 2d 759, 769–70 (S.D.N.Y. 2009), as amended, 681 F. Supp. 2d 470 (S.D.N.Y. 2010). Accordingly, the Court finds that an award of $940—representing double Plaintiff's daily rate at the time he took the Photo—to be appropriate in this case. To the extent that $470 is a somewhat depressed value because of a preexisting business relationship between Plaintiff and the Post, doubling the daily rate will more than adequately compensate Plaintiff, and deter Defendant, in a case involving a single instance of non-willful infringement. This is especially true here, since Plaintiff's daily rate suggests a much lower relevant licensing fee. In another case, the plaintiff provided the court with “no evidence of his lost revenues . . . nor the licensing history of the photo at issue.” Mordant v. Citinsider LLC, No. 18-cv-9054, 2019 WL 3288391, at *1 (S.D.N.Y. July 22, 2019). However, similar to this case, the plaintiff “received a daily rate from the [New York Daily News] of between $300 and $350 for his work as a photographer—regardless of how many of his photos from any given day were published.” Id. The court concluded that “[c]onsidering that daily rate as a proxy for the licensing fee of the photo supports the view that Plaintiff's loss of revenue is significantly below even the minimum end of a statutory damages award” and awarded $1,000. Id. at *1–2. Similarly, $940 in statutory damages is warranted here. 

Awarding only $940 in statutory damages, the court also denied attorneys' fees, because the "efforts [of Plaintiff's counsel] led to what can only be described as a suboptimal, and yet predictable, result." The court further noted that a fee award would not serve the purposes of the Copyright Act because the statutory damages award, in addition to the burden incurred by the defendant in going through this litigation, were more than adequate to deter future copyright violations. See Otto v. Hearst Commc'ns, Inc., No. 17-cv-04712, 2020 WL 377479, at *4 (S.D.N.Y. Jan. 23, 2020) (“[The] defense of this litigation was not costless . . . .”); Golden, 524 F. Supp. 3d at 67 (concluding that “[b]ecause [the defendant] has acted in good faith, immediately removed the offending post upon notice, and likely caused little or no actual damages, a statutory damages award . . . is more than sufficient to advance the purposes of the Copyright Act” and declining to award fees).  

Professor Goldman suggested that "this case really was all about the plaintiff's attorneys' fees, not the copyright merits themselves."