Jerstad v. New York Vintners LLC
- John Koeltl
- 1:18-cv-10470
- U.S. District Court · Southern District of New York
- 2
In Jerstad v. New York Vintners LLC, Judge Wang ordered more evidence supporting the plaintiff’s claimed photograph-licensing damages.
Robin Jerstad, whose claimed actual damages required additional supporting evidence, and New York Vintners LLC, whose alleged use of the photograph was relevant to the licensing-fee comparison.
What happened
In Jerstad v. New York Vintners LLC, the court found that Robin Jerstad’s declaration did not adequately support the claimed $1,500 reasonable licensing fee for the allegedly infringed photograph. A later contract proposal for photography services did not provide a suitable comparison because licensing was only one part of those services.
The court said the more useful evidence would show prices for licensing similar images and for uses similar in type and duration to New York Vintners LLC’s alleged use. It also noted that Jerstad provided no evidence of past licensing fees that could be compared to this alleged infringement.
Judge Wang gave Jerstad one final opportunity to submit all evidence supporting the actual-damages claim by December 10, 2019. The order warned that failing to comply may lead the court to decline to adopt the claimed actual damages.
The detailed version
- Jerstad v. New York Vintners LLC · No. 1:18-cv-10470
- John Koeltl
- Dec. 3, 2019
Background
Robin Jerstad claimed a $1,500 reasonable licensing fee as actual damages for an allegedly infringed photograph. On October 23, 2019, the court directed Jerstad to submit documentation supporting that amount, finding the original conclusory declaration insufficient.
Jerstad then submitted a supplemental declaration attaching a contract proposal for providing photography coverage of a private event. The court concluded that the proposal was not an appropriate comparison because the value of photography services includes more than the licensing of an image. The court also noted that, although Jerstad alleged being in the business of licensing photographs, he had not provided evidence of past licensing fees that could be appropriately compared with the alleged infringement.
Court’s reasoning
The court identified two relevant comparisons for a reasonable licensing fee: prices for licensing images similar to the photograph at issue, and prices for licensing similar in nature to the alleged use and for a similar duration. The order cited decisions discussing comparable licensing fees and the type, size, and circulation of the use.
Order and effect
The court ordered Jerstad to submit, by December 10, 2019, all evidence necessary to support the actual-damages claim. It gave him one final opportunity to provide adequate support. The court warned that failure to comply may result in its declining to adopt the claimed actual damages. The order did not decide the ultimate amount of damages or whether infringement occurred.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.