Frivolous Photo Copyright Appeal Leads to Fine

Dawes-Ordonez v. REALTOR® Association of Greater Fort Lauderdale (Fla.) U.S. Court of Appeals for the Eleventh Circuit

June 1, 2011

A property photographer who lost a copyright infringement case against an MLS and then filed an appeal was penalized by the appellate court on the grounds that her appeal was frivolous.

The photographer had entered into a nonexclusive agreement with a real estate salesperson to take photos of a listing. The pictures were used in the MLS listing and marketing materials and the property sold.

A few years later, the owner of that home worked with a sales team affiliated with another brokerage to sell the property. The sales team had access to the photos through the MLS and used those images in connection with the listing. The photographer sent notice to the sales team and the MLS, stating they didn’t have permission to use the photos. The sales team and the MLS removed the photos the next day.

Notwithstanding that effort to correct the matter, the photographer filed a lawsuit against the MLS and the sales team alleging copyright infringement. She later dismissed the sales team from the suit. The MLS filed a motion seeking judgment in its favor, and the trial court agreed, awarding the attorney’s fees to the MLS. The photographer appealed the award.

The U.S. Court of Appeals for the 11th Circuit affirmed the trial court’s ruling and imposed sanctions on the photographer for filing a meritless appeal. The court said the trial court, in awarding the attorney’s fees to the MLS, was acting within its authority, because the trial court intended to deter copyright holders from filing lawsuits without first trying to resolve the dispute out of court, which is what had happened in the photographer’s case.

The court also agreed with the MLS that the photographer be sanctioned for filing a frivolous suit, and sent the case back to trial court to determine the appropriate fine.

Robert Freedman

Robert Freedman is the former director of multimedia communications at NAR.

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