Facts

Plaintiff Gregory Scott Del Amo is a photographer who owns all of the intellectual property rights to his original photographs. Pursuant to a written agreement the plaintiff entered into with the models featured in his photographs, plaintiff was assigned and granted "all existing right of every kind or character" in his original works. In addition to copyright, these contractual rights also granted plaintiff the right to use, and to license others to use, the models' name, likenesses and any other elements of the models' performance embodied in his original works for the purposes of commercial advertising or publicity, including endorsements.

Defendants No Cash Inc. and Norman Baccash own and operate a commercial website that displayed 14 of plaintiff's photographs to market its on-line services. Del Amo filed suit seeking actual damages under federal and state law, including, among other things, copyright infringement and misappropriation of one's likeness pursuant to California Civil Code section 3344 on behalf of the models' featured in his photographs.

Because plaintiff did not register his original photographs with the U.S. Copyright Office prior to defendants' infringement, the plaintiff sought statutory damages and attorneys' fees for defendants' wrongful conduct only pursuant to Civil Code section 3344.

PLAINTIFF'S CONTENTIONS:
Plaintiff alleged that defendants displayed his photographs without his consent. The plaintiff contended that his agreements with the models were sufficiently broad to convey and assign the models' publicity rights under Civil Code section 3344 for the purposes of advertising and exploiting any work embodying the models' performances. The plaintiff also contended that he had standing to assert a claim for misappropriation of the models' likenesses under Civil Code section 3344. In addition, the plaintiff contended that his section 3344 claims did not interfere with the exclusive rights granted by the Copyright Act, and in fact protected rights entirely separate from copyright, and thus this state claim was not preempted.

Result

The court entered judgment in favor of plaintiff. Under Civil Code section 3344, the court awarded plaintiff statutory damages for defendants' misappropriation of the models' likenesses embodied in his original photographs and attorneys' fees as the prevailing party to the action. The court also awarded plaintiff injunctive relief pursuant to the Copyright Act and section 3344. In a post-trial motion for attorney's fees, the court awarded plaintiff his attorneys' fees, payable by defendants jointly and severally.