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Comment by elisee | Hacker News Reader

I don't think he said that $6,612 is the cost of licensing its photo. He said he considers $6,612 the "replacement value", should someone publish it in a magazine without licensing first. So it's more akin to distributing for profit a movie you don't own any rights too.

I don't see why he would use this value as a basis for damages incurred though, since even someone publishing his photo without licensing it, hasn't taken (stolen) the photo from him. "Replacement value" has no meaning in this digital context.

In my opinion, there's no relation whatsoever between the cost of taking the photo and the damages he should seek. I think the damages should be correlated with the licensing value of the photo, majored appropriately for not acquiring licensing prior to using it.

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A replacement value is only relevant if it has to be replaced - if I use his photo without permission in a magazine or a website, he still has the photo, no replacement needed.

While I am not denying him of the photo, I would of course be denying him of the revenue he would have earned had I licenced it from him, and would be entitled to demand that, and some more. If he had said that he would sue for $6k in punative costs, fair enough. Or even if he had said that he values his art at that price, and therefore that is what he charges for a single license.

Take Hollywood as an example, when they go after someone for illegally downloading a film they don't ask for the cost of a cinema ticket, or a cost of a DVD, they want a lot more than that. They don't however say "this film cost us £40m to create, that is it's replacement value, you now owe us £40m for downloading it".

"He still has the photo" is a nonsense argument -- he doesn't "still have the photo" from a licensing perspective in that he can no longer license exclusive or first usage rights (which also exist in regional and media contexts). The photograph has been irreparably damaged vis-a-vis its commercial value after unauthorised use/publication. That is something people seem to be unwilling to understand or consider for some strange reason -- the image file itself may still exist in a usable state, but its value is not in its bits, it's in its licensability. Unlicensed use demotes the picture's value to the level of royalty-free microstock in the eyes of potential buyers.

"""A replacement value is only relevant if it has to be replaced - if I use his photo without permission in a magazine or a website, he still has the photo, no replacement needed."""

No, he doesn't still "have the photo" as in "no damage done".

He has a digital file, but he just lost BOTH the exclusivity of the photo AND his say in how his work should be distributed.

> He said he considers $6,612 the "replacement value", should someone publish it in a magazine without licensing first.

Which is still so obviously moronic, that I don't even know why I bother pointing this out. Replacement value of a photo has to include the price of the camera it was taken with? This would be true if he used a brand new camera for each photo.

And Adobe must like him a lot, since apparently he buys a new copy of Photoshop for each photo he edits.

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