Corporate Counsel Daily, Food photo licensing company’s post-trial motions denied, (Apr 9, 2025)

By Carolin Dennis, B.Sc., LL.B., LL.M.

A food photo licensing company that prevailed on its infringement claim did not establish that $24,000 was the fair market value of the unauthorized use of a single photo.

The federal district court in Milwaukee, Wisconsin, denied a food photo licensing company’s post-trial motions because it was not reasonable to conclude that the company lost over $24,000 in revenue (licensing fees) from the infringing use of a single photo. The district court concluded that the jury’s conclusion that the grocery store owner was not vicariously liable and its award of actual damages were not against the weight of the evidence (Prepared Food Photos, Inc. v. Jaber, No. 2:22-cv-00642-JPS (E.D. Wis. Apr. 7, 2025)).

Background. Prepared Food Photos, Inc. (Prepared Food), a food photo licensing company, owns a valid copyright in a photo of raw pork chops. On September 28, 2020, the photo was posted to a Facebook page with the name “Villard Foodtown.” The Facebook page is affiliated with a small, family-owned neighborhood grocery store. At the time that Prepared Food’s photo was posted to the Facebook page, Jaber owned NOFAL, LLC, (NOFAL), which owned and operated the grocery store. Prepared Food alleged that this photo was posted without its permission and in infringement of its copyright. The photo appeared on the page from September 2020, through at least November 2021, which under Prepared Food’s subscription model would have required two 12-month subscriptions, totaling roughly $24,000. Prepared Food asked for $30,000, more than what NOFAL would have had to pay legally if it used Prepared Food’s photo with authorization because Prepared Food “doesn’t believe that somebody who steals an image should pay the same as somebody who licenses it properly.”

The evidence presented at trial showed no factual dispute as to Jaber’s ownership of NOFAL, nor was there a genuine dispute that the Facebook page was operated on behalf of NOFAL and the grocery store. However, the jury heard differing testimony and evidence as to whether Jaber himself knew about the Facebook page, or knew what NOFAL employees (who are Jaber’s sons) were doing with the Facebook page, at the time of the infringement. Based on the evidence, the jury found that NOFAL, the business entity, was responsible for infringing Prepared Food’s copyright by posting the photo on the Facebook page, but that Jaber was not vicariously liable for NOFAL’s infringement. The jury awarded $200 in actual damages and $1,000 in statutory damages. The jury found that NOFAL’s infringement was not willful.

Prepared Food moved under Federal Rule of Civil Procedure 59(e) to amend or alter the judgment, requesting the district court to replace the jury’s $200 actual damages award with an award of $23,976 and to reverse the jury’s determination that Jaber was not vicariously liable for NOFAL’s infringement, or, in the alternative, for a new trial.

Motion to alter or amend judgment. Prepared Food argued that the jury’s award of $200 in actual damages was the result of a manifest error of law or fact because it was unsupported by evidence adduced at trial and was inconsistent with damages awards that other district courts have issued in other cases in which it recovered damages. Further, it argued that the jury’s finding that Jaber was not vicariously liable for NOFAL’s infringement was against the manifest weight of the evidence. The district court found that the purported errors that Prepared Food identified were with the jury’s verdict, not the court’s judgment, which only memorialized that verdict. However, Prepared Food did not point to any authority, binding or otherwise, that permits the district court under Rule 59(e) to override the jury’s findings as to actual damages and vicarious liability. The district court noted that Rule 59(e) is not an appropriate vehicle to displace the jury’s factual findings in the manner sought by Prepared Food. Therefore, Prepared Food’s request to alter or amend the judgment was denied.

Motion for a new trial. The district court noted that simply because Prepared Food showed that Jaber profited from sales at the grocery store as a general matter did not mean that it showed that grocery store sales or Jaber’s profits increased because of the infringement. The district court also found that Prepared Food had not adequately explained how it was prejudiced by the exclusion of other photographs from the Facebook page and related testimony, or how the admission of this evidence and testimony might have impacted the jury’s analysis as to vicarious liability. Accordingly, the district court found no merit in Prepared Food’s argument that the district court’s evidentiary rulings required a new trial.

Typically, a reviewing court will not order a new trial on damages merely because it believes the jury’s award was too low. The district court noted that Prepared Food established that its current customers have agreed to pay its annual licensing fees, but it did not establish that any customer/licensor had paid or would pay that amount to utilize a single photo. Additionally, just because Prepared Food’s licensing model does not permit the licensing of single photos does not mean that the cost of a single photo should be discounted as a measure of actual damages. Therefore, the district court found that the jury’s actual damages award was supported by the record and the size of the actual damages award is not a basis to order a new trial.

Prepared Food contended that the district court’s decision to exclude evidence of Jaber and NOFAL employees (defendants) statements in the discovery that were inconsistent with Jaber’s testimony at trial resulted in an unfair trial because it prevented the jury from accurately assessing whether the defendants’ conduct was willful and accordingly impacted its $1,000 statutory damages award. The district court disagreed and noted that Jaber testified truthfully to the jury even though doing so was not to his benefit, and the jury was entitled to credit that trial testimony. Additionally, Prepared Food’s argument that the trial was unfair because the jury’s allegedly improper determination of actual damages infected its determination of statutory damages, also failed because it did not establish that $24,000 was the fair market value of the infringing use of a single photo.

Accordingly, the district court denied the motion for a new trial.

The Case is No. 2:22-cv-00642-JPS.

Judge: Stadtmueller, J.

Attorneys: Daniel DeSouza (CopyCat Legal PLLC) for Prepared Food Photos Inc. Amber L. Herda (Ganzer Ltd) for Sharif Jaber.

Companies: NOFAL, LLC; Prepared Food Photos Inc.

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