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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 5
“It’s Not Personal, It’s Strictly Business.”
When preparing the demand, the famous Michael Corleone quote from The Godfather should be kept in mind: “It’s not personal, it’s strictly business.” Upon discovery of an instance of infringement, many photographers will feel as though someone has stolen something from them. While this sentiment is entirely understandable, it’s also counterproductive. Indeed, the last thing you want to do is turn what should be a straightforward business matter into a personal matter. As a personal matter, it will be more difficult to come to an amicable resolution.

Anecdotal evidence suggests that a dispassionate explanation of how the photographer is entitled to be compensated for the unauthorized use is more likely to achieve a favorable result and resolution of the matter. When it becomes clear to many businesses that they have utilized something of value without paying for it, and that all you’re seeking is to be reasonably compensated for the use, in many cases the business will seek to resolve the matter.

Step 6
Settle Or Sue?
With a little luck, your reasonable demand will be accepted and the matter resolved. Even if the matter doesn’t settle, it’s still a good idea to keep the door open to a possible resolution of the matter short of going to trial.

Unless you’re already familiar with how expensive litigation can be, be forewarned that you’re in for a rude awakening. Even a simple case for copyright infringement easily can result in attorney’s fees in the neighborhood of $50,000. If the infringer is highly litigious or seeks to vigorously defend the case, there’s effectively no limit to the amount of attorney’s fees that may be incurred in the case. To make matters worse, there’s also no guarantee that the court will award a successful plaintiff his or her attorney’s fees. While the Copyright Act authorizes the court to award fees, the court has discretion to determine whether to award fees and, if so, how much to award.

Some lawyers may agree to handle copyright infringement actions on a contingency-fee basis. While there are obvious benefits to the arrangement—the primary benefit being that the lawyer doesn’t get paid unless the lawyer is able to recover something for the photographer—there are also disadvantages. If the lawyer handling the case is something of a gambler or risk-taker, the lawyer’s inclination may be to proceed with a case based upon the slim chance that the case may result in a big victory.

Even when a lawyer is handling a case on a contingency-fee basis, the photographer still may be required to pay costs such as court filing fees, deposition transcripts, the lawyer’s travel cost, etc., out of pocket. In a large case, particularly one that involves travel and a number of depositions, the costs easily can exceed $10,000. In the event that the photographer isn’t required to pay the costs absent recovery, costs are usually deducted from any recovery before the balance is divided between the lawyer and the photographer.

After the expense of litigation, and after you’ve had your day in court, there’s still another point that needs to be kept in mind. If the court awards a judgment in your favor, that’s just the beginning of yet another legal process. Judgments are very much like hunting licenses. They give the person or business holding the judgment the ability to search for and attempt to execute on assets belonging to the person or business against whom the judgment was entered. If, however, the person or business against whom the judgment was entered has no assets (or none that are subject to collection), you may find that the judgment is little more than an expensive piece of paper and, ultimately, less useful than toilet paper. Unless there are assets to collect, the court victory becomes pyrrhic and the judgment a reminder of how much in good money was thrown away after bad.

Ultimately, the question of whether to pursue litigation and how far to go in litigation requires an evaluation of the relative costs and benefits. It also requires an assessment of your tolerance for risk. Some photographers may have a gambling spirit and are willing to make the investment represented by litigation in the hopes of recovering big; others may be risk averse and content to obtain something, even if the settlement amount doesn’t live up to their expectations of reasonable compensation.

As a judge I know has said on a number of occasions, the parties to a case always will be better off if they’re able to settle their case without the court’s assistance. While both parties may walk from the bargaining table unhappy, at least they will be able to control the result. When a case goes to court, there’s no way to know or predict with any real accuracy what the end result will be and, in some cases, even the winners will leave court unhappy with the result.

There’s one last point that bears remembering. If you decide to pursue litigation, it’s always a good idea to leave the door open for settlement discussions. Even if you’re letting your lawyer handle the matter entirely, you still should make it clear that you want to encourage settlement. As the old proverb states, a bird in the hand is worth two in the bush. 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.

Samuel Lewis is a Board-Certified Intellectual Property law specialist and partner at Feldman Gale, P.A., in Miami, Florida, and a professional photographer who has covered sporting events for a quarter-century.


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