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Tuesday, October 14, 2008

Copyright Your Images

An attorney and intellectual property specialist delves into handling instances of copyright infringement

Step 2
Set Reasonable Expectations.
The key to preventing copyright enforcement activities from becoming losing propositions begins with reasonable expectations. This is one place where photographers and lawyers tend to differ in their assessment of copyright infringement cases.

Photographers, having been told repeatedly what the maximum penalties are for infringement, either forget or simply don’t realize that the judge has discretion to set the award. Under current U.S. Copyright law, the maximum statutory damage award for an innocent infringer is $30,000. However, the minimum statutory damage award for innocent infringement is $750. Thus, the judge who ultimately presides over the copyright infringement claim has discretion to award just about anything between $750 and $150,000. In this context, there’s simply no guarantee that any given photographer will be awarded the maximum possible award. Thus, the reasonable expectations shouldn’t be based upon the maximum possible award, and the photographer whose expectations are based upon the maximum almost certainly will be disappointed.

I’ve also seen more than a few photographers who, upon learning of an instance of infringement involving one of their images, immediately jump to the conclusion that the infringement had to be more extensive than was discovered. The fact that the infringement itself may be more extensive than has been discovered shouldn’t change the analysis that should be performed when determining expectations.

Under the case law applicable to most cases involving the unauthorized use of a photograph, the concept of “reasonable compensation” essentially boils down to the amount that a willing client would negotiate and pay in an arm’s-length licensing arrangement, with no assumption of wrongdoing or infringement, for the actual use discovered. Stated more simply, the “reasonable compensation” for the unauthorized use of a photograph is what your ordinary license fee would be had arrangements been made beforehand, and such arrangements wouldn’t have included unlimited use of the copyright, a transfer of copyright or any other concept that would have transformed your ordinary license fee into some astronomical number that would have scared away the client.

“If you remain open to the possibility of settlement, you ultimately may find yourself with money in your pocket rather than holding a worthless piece of paper.”

Step 3
After these preliminary steps, it’s a good idea to investigate further in an effort to locate additional instances of infringement that may be related to the instance discovered. There are several benefits to such an investigation.

First, the investigation may give you a more complete understanding of how the photograph was used without permission or beyond the scope of the license granted. Since reasonable expectations should be based upon reasonable compensation, discovery of additional related instances of infringement may require you to go back to Step 2 and reassess both.

Second, the investigation may give you an idea of how the infringer gained access to the photograph. This knowledge is important, both for knowing who should receive a demand letter (as discussed in the next step) and for determining the tenor of that letter.

Step 4
Prepare “The Demand.”
Once you’ve determined the reasonable compensation for the infringement discovered, the next step is to prepare a “demand.” Some photographers may not be comfortable preparing their own demand letters and may prefer to have their lawyer prepare and send the letter.

While there are many ways to present a demand—as there’s no one right or wrong way—the first thing you should consider is how the demand will be received by the client or infringer. If the tenor of the letter is harsh, overly demanding or what many would consider to be the typical “lawyer’s letter” (which commonly presents the parade of horrors that may be awarded if the matter proceeds to court and is otherwise intended to intimidate the recipient of the letter), there are two likely consequences. First, the recipient may assume that you’re not willing to be reasonable, the result being that the recipient will immediately involve his or her own lawyer (and immediately increase the cost of any resolution). Second—and this is particularly true where the infringer is a client—odds are that the recipient of a harsh letter won’t remain a client.

As photographer José Azel, President of the Portland, Maine-based photo agency Aurora Photos, has suggested, “[p]hotographers and photography agents are in the business of licensing images to repeat clients... Ours is a service business dependent on building lasting relationships.”

Even if the infringer doesn’t appear ever to have been a client, one should not immediately ignore Azel’s maxim. Particularly in a digital age, where it’s so easy for an image to be inadvertently delivered by a client to the infringer—who might not even be aware that the client has exceeded the scope of whatever license was granted to the client—presenting a demand to an infringer may result in the loss of a client, or worse.

Thus, if you’re preparing a demand letter for a client, consider how the client is likely to view the letter. A demand that’s professional, factual and devoid of emotion is more likely to encourage the client to resolve the misunderstanding.

When preparing the demand, it’s also important for the photographer to consider the possible ramifications of the demand, including the possible loss of a client or related business. There have been instances where a photographer who threatened or pursued claims against an infringer resulted in the photographer’s loss of business. For example, if a photographer who derives substantial income from a magazine makes a demand or brings suit against one of the magazine’s major advertisers, the major advertiser may force the publisher of the magazine to make a choice between keeping the dollars the advertiser’s business represents or keeping the photographer. Given the competition in the photography industry, and considering the impact that the loss of a major advertiser may have on a magazine, it doesn’t take a rocket scientist to figure out what will happen: The magazine will select the advertiser over the photographer.

In certain segments of the industry, where access to events also may be important, the consequences may be greater than simply losing one magazine’s business. A photographer’s threat of a claim of infringement against a particular venue resulted in the photographer being declared persona non grata. When the photographer and various editors later applied for credentials for the photographer to handle assignments for events at that venue, the requests were denied.


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