Jury Awards Damages in Stepables Photo Copyright Case, But The Perennial Farm’s Appeal May be Forthcoming

Jury Awards Damages in Stepables Photo Copyright Case, But The Perennial Farm’s Appeal May be Forthcoming

Stepables Tough-Ten TagsA verdict has been handed down in a horticulture-related copyright case in the United States District Court for the District of Maryland.

According to a press release from Under A Foot Plant, Co,, a jury awarded Under A Foot Plant (which owns the Stepables product line) $900,000 in actual damages for The Perennial Farm’s use of Stepables’ copyrighted photographs. The jury also awarded Under A Foot Plant, Co. the maximum available statutory damages of $300,000 for The Perennial Farm’s infringement of Stepables’ brochure and website.

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Stepables is Under A Foot Plant, Co.’s product line of perennial plants for walkways, borders, and lawn replacement, available throughout the U.S. and Canada. Company President Frances White is the creator of the Stepables plant line and its many copyrighted images.

In the lawsuit, Under A Foot Plant, Co. and Ms. White alleged that The Perennial Farm had used copyrighted photographs to market a competing line of products called “Treadwell.” Ms. White testified at trial that she had discovered her pictures on Treadwell webpages, brochures, and posters in 2011, 2012, and 2014.

According to the Under A Foot Plant, Co. statement, Professor Jeffrey Sedlik, a leading expert on visual arts and photography licensing, was called as an expert witness at trial. Sedlik testified that The Perennial Farm had infringed 23 of Stepables’ photographs a total of 133 times from 2011 to 2017.

“He confirmed the infringement using a fingerprint-like ‘feature point analysis’ of the photographs and then researched the fair market value for licensing similar images in similar marketing materials,” according to the statement. “Professor Sedlik noted that the use of these photographs in competing marketing materials increased the likely cost of a license drastically, thus increasing the damages sustained by Under A Foot Plant, Co. The size of the jury award suggests that Professor Sedlik’s testimony was critical in demonstrating Under A Foot Plant, Co.’s damages to the jury.”

“This was a huge win for artists, photographers, and creators,” Ms. White said of the award. “These photographs were the result of countless hours of time, attention, planning, and preparation. Today, the jury sent a clear message that the work that goes into marketing and selling high quality plants is valuable and worthwhile.”

Stepables was represented by Jan I. Berlage of Gohn Hankey Stichel & Berlage LLP in Baltimore, and Michael Dell Long of Long Law PDX in Portland, OR.

Perennial Farm May Appeal Case

In response to the verdict, The Perennial Farm issued a statement through its attorney, Dan Schmitt of Daniel V. Schmitt, LLC in Towson, MD:

“Confusion exists regarding a recent Maryland trial court decision in a case between Stepables (Under A Foot Plant) and Exterior Design, Inc. (EDI).

“There was not a $1.2 million monetary judgment award. The jury’s damages verdict is not only absurd, but contrary to the law. The law required the jury to determine the fair market value of five photographs of landscape scenes, and 18 close-up photographs of plants that are sold at nurseries and garden centers around the nation. The evidence did not support a finding that each of these photographs has a fair market value of more than $52,000. In fact, the evidence proved that EDI was able to legally license suitable replacement photographs for approximately $8 to $40 per photograph. Exterior Design intends to explore all avenues of post-verdict relief, including an appeal.”

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