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Jury awards $1M to stem cell photographer

A federal jury in Delaware has awarded more than $1 million to a photographer whose copyrighted photograph of stem cells was widely distributed without his consent for seven years on the website of a company that produces nutritional supplements aimed at increasing stem-cell count.

Andrew Leonard’s photographs of stem cells ‘turned microscopic images into an art form,’ his lawyer says. Leonard sued a nutritional supplement maker that used the photos on its website.

Stemtech Health Sciences Inc. knew it was infringing on Andrew Leonard’s copyright when it posted the photographs in 2006 and kept them online until this year, the jury found in ruling for the photographer. The San Clemente, Calif.-based company’s unauthorized use of Leonard’s photograph substantially reduced his ability to broadly license its use, resulting in lost income and related damages of $1.6 million, the jury found last week.

Leonard, who specializes in photographs of cells, likened Stemtech’s use of his work to being robbed.

“Essentially, you go out and you want to do something that no one else has done,” he said. “You put your all into it.”

To illustrate his artistic effort, the New York resident said anyone with a camera and time can take a picture from the top of the Empire State Building.

“Stem cells, on the other hand, are a little bit harder to find” and photograph, he added.

Leonard said he was “very saddened” to see his photograph on Stemtech’s website, without permission, credit or compensation.

The photograph gained renown when it appeared on the cover of the Aug. 7, 2006, issue of Time magazine — with Leonard’s permission.

He had taken the photograph using an electron microscope. He then enhanced the photo digitally by adding colors and effects, according to the lawsuit Leonard filed in the federal court in February 2008.

Leonard’s attorney said the photo was among the first that “merged science and art together” and is quite valuable.

“Stemtech’s use of his images caused him to lose control of his images,” added the attorney, Jan Berlage. “Once something goes out there, it’s out there.”

At the four-day trial, economic experts for Leonard testified that the market for high-quality stem cell photographs is strong, particularly from pharmaceutical companies seeking investors for stem cell-based treatments for cardiovascular and brain diseases, such as Alzheimer’s and Parkinson’s.

“What made these pictures so great” was that it was “the first time a photographer had turned microscopic images into an art form,” said Berlage, of Gohn, Hankey & Stichel LLP in Baltimore. Leonard is “a fantastic photographer … who was greatly wronged.”

Stemtech’s attorney, Stephen P. Casarino, did not return telephone messages seeking comment. He is with Casarino, Christman & Shalk P.A. in Wilmington, Del.

The million-dollar verdict should serve as a warning to companies posting photographs on their websites, said Peter J. Davis, a Baltimore intellectual-property attorney who was not involved in the case.

“If you are clipping photographs and placing them on the Internet, you are doing so at your peril,” said Davis, of Whiteford Taylor Preston LLP in Baltimore. “Anytime you use something that you didn’t create yourself, you have to consider that you may be infringing somebody else’s copyright.”