Miami photographer Jake Butters is suing RelatedISG agent Alexis De La Rotta, accusing him of using a copyrighted photo without permission or payment.
The photo in question shows the Miami skyline with Bayside Marketplace and Miamarina in the foreground. Butters specializes in aerial drone photography.
According to the suit, filed in Miami federal court last week, Butters took the photo in 2016. He titled it “On a Tuesday” before posting it on his website and Instagram account with his Instagram handle @jakerybu typed onto the bottom of it. The photo is still visible on his Instagram, posted on Sept. 20, 2016.
A similar photo appears on an Instagram account under the name, Alex De La Rotta PA ( @miami_real_estate_offers), dated Nov. 26, 2018.
The suit alleges that Alexis De La Rotta or his firm knew that “the original photo contained copyright management information and intentionally darkened the image and cropped [it] in order to obscure and alter the copyright management information so that it would not be identifiable in the finished infringing advertisements.”
The suit goes on to allege that De La Rotta or his firm intentionally added his branding and copyright management information to the photo, and used it on in several places on Instagram and Facebook. The suit shows what appears to be an original photo and two examples from De La Rotta’s ads.
Efforts to reach Butters and De La Rotta were not successful.
De La Rotta’s social media accounts “have also featured other third-party photographs edited in the same style,” the suit states, calling the actions “willful” because the defendants knew Butters licenses his photos for commercial use.
One of the ads shown in the lawsuit as an exhibit features De La Rotta’s firm name with a quote from Benjamin Franklin in large white letters over the photo: “If you want to be rich you not only learn how to earn, but how to invest.”
Miami attorney Thomas Julin, who specializes in media and First Amendment issues, and is not involved in the suit, said common defenses to copyright infringement allegations include the “fair use” doctrine. He said fair use depends on the purpose and character of the use, including whether it is of a commercial nature.
“Copying would include the making of a digital copy of a photograph or the posting of a copy on a social media site,” Julin said.
The suit seeks an injunction prohibiting the use of Butters’ photos without permission and $25,000 for each time a photo was allegedly used without license or permission.