‘Russian Doll’ Copyright Infringement: Beware What’s in the Background

“‘Russian doll’ copyright infringement is infringement of a copyright that is within another copyright, just as Russian dolls are nested inside each other…. The consequences can be costly.”

https://depositphotos.com/6582448/stock-photo-matrioska-russian-doll.htmlIn the winter of 2014, Leah Bassett rented her Martha’s Vineyard home to Joshua Spafford. He seemed like a nice guy, quiet and well-dressed. Joshua listed his employer as “Mile High Media.” Mile High then used the home to shoot several adult videos. Leah, the homeowner, didn’t know that they were going to use her home in this way. She was upset when she learned what they had done, but in the end, she got her revenge thanks to copyright law.

Bassett is an artist. She had her original artwork on the walls, which appeared in many of the video scenes. She filed a copyright infringement suit in federal court in Massachusetts. The court found that unauthorized use of her artwork in the scenes was copyright infringement. The court then left the question of damages and whether to destroy the videos for the jury. Bassett asked for all profits from the movies. The Cape Cod Times reported that the copyright case settled just before trial.

‘Russian Doll’ Copyright Infringement

“Russian doll” copyright infringement is infringement of a copyright that is within another copyright, just as Russian dolls are nested inside each other. This type of copyright infringement can appear unexpectedly and can have serious consequences.

The U.S. Postal Service’s Stamp Troubles

The U.S. Postal Service (USPS) learned about Russian doll copyright infringement the hard way — twice. In 2003, the USPS released a forever stamp honoring veterans of the Korean War. They used a copyrighted photo taken by Marine Corps Reserve Lt. Col. John W. Alli showing snow-covered statues in the Korean War Veterans Memorial in Washington, D.C. He visited the monument early one Sunday morning after a heavy snow and took the photo. The USPS paid a license fee to Mr. Alli for its use, but then also got sued by the statues’ sculptor, Frank Gaylord. He hadn’t given permission to use his sculptures on the stamp. In a classic case of Russian doll copyright infringement, the USPS had to pay Mr. Gaylord $685,000.

Seven years later, the USPS issued the Lady Liberty forever stamp. For the image on the stamp, the USPS licensed a picture by Raimund Linke of the Statue of Liberty’s face. I’m sure they were confident that the copyright on New York’s famous landmark had expired, and they were correct. But what they didn’t realize is that the picture they licensed was of a Statue of Liberty replica in Las Vegas. They got sued by its sculptor, Robert Davidson, and had to pay $3.5 million.

Consequences for Other Businesses

Russian doll infringement has also happened in common business advertising. General Motors learned this when it launched an ad campaign for Cadillac. The ad used a picture of a Cadillac taken on the top floor of a parking garage in Detroit. Unfortunately for GM, there was a mural on a wall next to the car. The mural by Adrian Falkner, also known as SMASH 137, had been commissioned as part of a street art project and was protected by copyright. Falkner sued General Motors for infringement. GM argued that they didn’t do anything wrong since photos of buildings are permitted if they’re visible from a public place. Their argument is correct with respect to buildings, but the court found that the mural wasn’t part of the building, but a separate protected piece of art. GM settled with the artist.

Mercedes Benz did the same thing in 2018. Several photographs used on the company’s social media pages depicted its G 500 in front of murals at Detroit’s Eastern Market. The murals had been painted by four artists, Daniel Bombardier, Maxx Gramajo, James Lewis and Jeff Soto. They objected to the use of their art. Mercedes disagreed and filed suit, asking a federal court to declare that it hadn’t done anything wrong. Mercedes used the same argument that GM had used, and the court in Detroit ruled the same way as did the California court. Mercedes Benz settled the lawsuit.

The Takeaway

Copyright infringement can be expensive. Damages can range from the copyright owner’s actual damages to any additional profits earned by the infringer or even statutory damages. Statutory damages are available if a work is registered in a timely manner — generally accepted as within three months of the work’s publication date or before copyright infringement takes place. Statutory damages can range from $750 to $30,000 per infringement, up to $150,000 for willful infringement.

To avoid Russian doll infringement, you must be aware of what’s in the background of your photos or videos. Copyright protects the expression of an idea in tangible form, such as paintings, sculptures, photos or music. These can inadvertently appear in your work. If you notice that this has happened, take appropriate action as quickly as possible. If it’s not possible to avoid incorporating potentially infringing material in your work, you can also reach out to the copyright owner and ask for permission to use the work, which may require a license. The consequences can be costly.

 

Image Source: Deposit Photos
Author: ruigsantos
Image ID: 6582448 

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