Where a photographer suing for unauthorized use of his photograph failed to disclose his actual damages in his Rule 26 disclosures, but the defendant was aware the photographer was seeking such damages, had information regarding such damages well before trial and could not show it was prejudiced, the photographer may seek actual damages at trial.
Alex Proimos is a commercial photographer residing in Australia. In June 2011, Proimos took a photograph of the Rotunda at the University of Virginia. At some point between June 2011 and September 2013, Proimos posted the photograph to Flickr.com.
On or about Dec. 17, 2019, Marotta Wealth Management used the photograph in a blog post on Marotta’s website. Other evidence in the record provides that the photograph appeared on Marotta’s website as early as Dec. 5, 2019. On Dec. 20, 2019, Proimos registered the photograph with the Copyright Office.
On May 5, 2022, Proimos filed this copyright infringement suit against Marotta. In December 2022, the parties filed cross motions for summary judgment. This opinion addresses Marotta’s motion for summary judgment, which seeks a ruling from the court that Proimos is barred from recovering statutory damages (and a reasonable attorney’s fee), as well as actual damages.
Defendant argues, and plaintiff concedes, that because defendant first commenced his use of the photograph years after its first publication and before the date of its registration, and because such registration was not “made within three months after the first publication of the work,” statutory damages and attorney’s fees are not available to plaintiff.
Marotta also argues that Proimos is not entitled to actual damages because Proimos did not state that he was seeking actual damages in his Rule 26(a)(1) disclosures and did not disclose any information and documents to support his claim of actual damages. There is no dispute that Proimos’ Rule 26(a)(1)(A)(iii) disclosures did not contain any computation of actual damages claimed by Proimos, nor did they include documents, materials or information upon which Proimos’ actual damages claim is now based.
Accordingly, the court proceeds to consider whether nondisclosure of Proimos’ actual damages calculation and evidence was substantially justified or harmless. Even though Proimos’ disclosures should have provided information about calculation of actual damages, the record in this case demonstrates that there was little, if any, surprise to Marotta, by either Proimos’ demand for actual damages or the evidence supporting actual damages. Indeed, it was clear from the outset of the case that Proimos sought an award of “actual and/or statutory damages for Defendant’s copyright infringement in an amount to be determined at trial.”
In addition, on July 13, 2022 — just six days after his initial disclosures — Proimos responded to the interrogatory, stating “As the copyright holder of the Photograph, I am entitled to damages, including actual or statutory damages, under 17 U.S.C. § 504.” And information that bears upon and underlies Proimos’ calculation of his actual damages was communicated to Marotta 26 days before the close of discovery.
Because the court has found that Marotta can claim little if any surprise on account of Proimos’ failure to cite actual damages in his initial disclosures, this ability to cure factor also weighs in Proimos’ favor. Marotta should have long had a copy of the apparently one exhibit Proimos intends to introduce on the issue of actual damages. Proimos identified that exhibit well in advance of trial in his pre-trial disclosures — filed just over three weeks before trial. Nor has Marotta described any prejudice it faces on account of Proimos’ violation of the disclosure requirement, such as describing any inability to secure necessary discovery or evidence on the actual damages issue.
The third factor concerns “the extent to which allowing the evidence would disrupt the trial.” The court has little concern in this regard. This trial is set for one day. The evidence of actual damages from Proimos appears to be limited to one exhibit and perhaps some testimony.
Accordingly Marotta’s motion is granted that it argues that Proimos is barred from seeking statutory damages or reasonable attorney’s fees at trial. However, Marotta’s motion is denied to the extent that it argues that Proimos is barred from seeking an award of actual damages.
Defendant’s motion for summary judgment granted in part, denied in part.
Proimos v. Marotta Wealth Management Inc., Case No. 3:22-cv-00023, Feb. 27, 2023. WDVA at Charlottesville (Moon). VLW 023-3-089. 11 pp.