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Collectors Universe Inc. Message Board

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  • tradedollarnut tradedollarnut Jul 13, 2005 11:44 AM Flag

    Where's Mister $37,000,000?

    Read again. It's the greater of $750 or actual damages and profits. Of course they'd defend even if the $750 is per lawsuit. The more I read this the more it's clear that it's not per occurance:

    ...shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($ 750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages. In establishing such profits, the injured party or parties are required to present proof only of the gross revenue attributable to such use, and the person who violated this section is required to prove his or her deductible expenses. Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney's fees and costs."

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    • With respect to the issue of how the statutory amount of $750 is applied, it may be instructive to look at precedent. The case of Perfect 10, Inc. v. Talisman Communications, Inc. may shed some light. In this case, Talisman used multiple Perfect 10 copyrighted images of 4 models for their web site. The court awarded the statutory $750 to each model regardless of the number of photographic images that were displayed or the number of times those images were viewed.

      As to the details of the case, the following may also be instructive: Not just any use of an individual's name, likeness, etc. triggers statutory protection. The language of Section 3344 has been interpreted as requiring a use for a "commercial purpose." However, Section 3344(e) specifies that use in a commercial medium that is commercially sponsored or contains paid advertising is insufficient in and of itself to constitute a "commercial purpose." Rather, a "direct connection" is required between the use and the commercial purpose. This requirement need not be "suggestive of an indorsement [sic] or association with the injured person." Finally, the statute only imposes liability on a knowing use without consent.

 
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