Stepables wins copyright claim

A jury awarded Stepables-owner Under A Foot Plant, Co. $900,000 in actual damages for Glen Arm, Md.’s The Perennial Farm’s unauthorized use of Stepables’copyrighted photographs, as well as $300,000 in statutory damages for The Perennial Farm’s willful infringement Stepables’ brochure and website. The verdict came May 11 in the U.S. District Court for the District of Maryland.

Stepables is Under A Foot Plant, Co.’s product line of perennial plants for walkways, borders, and lawn replacement. Frances White, president of the Salem, Ore. company and creator of the Stepables plant line alleged that The Perennial Farm had used Stepables’ copyrighted photographs to market a competing line of products called “Treadwell.” White testified at trial that she had discovered her pictures on Treadwell webpages, brochures, and posters in 2011, 2012, and 2014, and these infringements continued.

Professor Jeffrey Sedlik, an expert on visual arts and photography licensing, was called as an expert witness at trial. Sedlik testified that The Perennial Farm had infringed 23 of Stepables’s photographs a total of 133 times from 2011 to 2017. He confirmed the infringement using a fingerprint-like “feature point analysis” of the photographs and then researched the fair market value for licensing similar images in similar marketing materials. Sedlik noted that the use of these photographs in competing marketing materials increased the likely cost of a license drastically, thus increasing the damages sustained by Under A Foot Plant, Co.

“This was a huge win for artists, photographers, and creators,” White said of the award. “These photographs were the result of countless hours of time, attention, planning, and preparation. Today, the jury sent a clear message that the work that goes into marketing and selling high quality plants is valuable and worthwhile.”

This case has implications for the horticulture industry. When a business competitor uses a photo to create marketing tools that promotes its own product to the detriment to the copyright owner, the competitor may be sued for copyright infringement, found liable and be required to pay actual damages and the disgorgement of profits or statutory damages and legal fees. In a case where the infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000 per copyrighted work.