The Supreme Court against "photo trolls": why does the court reject the claim, and not simply reduce the compensation? Colleagues, we analyze a fresh and extremely useful case for protection against the practice of the Court of Intellectual Rights and the Supreme Court of the Russian Federation (Decision of the Supreme Court of the Russian Federation No. 303-ES26-4459). The essence of the dispute:
The plaintiff (the copyright owner) demanded compensation for the illegal use of the photograph "Thermometer" (author D. Melnikov). The amount of the claims is 76,000 rubles (twice the cost of the right of use according to Clause 3 of Article 1301 of the Civil Code of the Russian Federation). In a similar case, they asked for 70,000 rubles for the picture "Fan". To prove the cost, the plaintiff brought to the court licensing agreements for other photographs by the same author ("Rubles and Dollars", "Ampoule Sputnik", etc. for 35-45 thousand rubles). What was the mistake of the lower authorities? The courts of first instance and the courts decided: since there is only one creator, the same equipment and similar labor costs, the average price can be calculated and the claim partially satisfied. However, the RF Armed Forces firmly rejected this logic. The main thesis: in the law there is no presumption of price equality of works by one author. Why a complete refusal and not a reduction?
This is the key point! To collect damages in the method chosen by the plaintiff (twice the cost of the license), he must prove the price of the right to use the disputed object. The cost depends on the uniqueness, content and demand of a particular frame. Since the plaintiff did not provide data on the price of a "thermometer" image, the court simply did not have a mathematical basis for the calculation. The court cannot make a calculation out of thin air. The risk of an unproven price lies entirely with the claimant (Part 2 of Article 9 of the Arbitration Procedure Code of the Russian Federation). The result is a complete denial of the claim and the recovery of all the defendant's legal expenses from the plaintiff. Conclusions for practice: 1 To protect your business: If they try to cheat you to get compensation for a picture, demand proof of the value of that particular object. The prices for other works of the author no longer act as absolute proof. 2 to copyright holders.