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Tuesday, October 18, 2011

Stay On Track

Before filing a lawsuit, consider the possible ramifications and what victory or loss will accomplish

Having obtained a judgment, even if for an amount far less than the $40,000 to $60,000 originally sought, Schmitt’s odyssey was not yet over. He still had to demand that the company pay the judgment, and hope that it would pay. The company ultimately paid, but the experience left Schmitt soured. Says Schmitt, “I have been through this with a clear case of willful infringement (from a big company) on copyrighted images [registered] prior to infringement, and I can say it was the biggest emotional drain of my life, distraction from my business, and financially not worth it.” Now, Schmitt tells others to keep their priorities straight. The priority, says Schmitt, “should be to stop the infringement, and if you can, settle for a fee out of court. Stay away from a lawsuit.”

Sometimes You Have To Defend Your Business

Even if you stick to your business priorities, and succeed at keeping the emotions at bay, there are times when you may find yourself with no good alternative to litigation. Such was the case with New Jersey-based photographer Peter Murphy after his lawyer sent a letter to a radio station accusing it of copyright infringement.

Murphy photographed a pair of radio shock jocks for a feature article in New Jersey Monthly magazine. When unauthorized copies of Murphy’s photograph of the shock jocks appeared on the radio station’s website, Murphy’s attorney sent a letter to the station. Although the radio station removed the photo from its website, shortly thereafter, the shock jocks verbally attacked Murphy on the air. According to Murphy’s complaint, listeners heard the shock jocks “impugn Murphy’s personal integrity and repeatedly characterize him in a factual way as ‘a man not to be trusted’ in a business environment; a man who ‘will sue you’ if you have business dealings with him and, in substance, as a man with whom ‘a person should avoid doing business.’” The radio station destroyed its recording of the show shortly after it aired.

Left with no alternative but to defend his business reputation, Murphy sued the radio station and shock jocks for copyright infringement and defamation. The station and shock jocks asserted fair use as justification for their use of Murphy’s photograph, and the trial court agreed. The trial court also precluded Murphy from obtaining discovery on his defamation claim. Murphy appealed the decision, and the U.S. Third Circuit Court of Appeals recently overturned the trial court’s decision in its entirety, breathing new life into Murphy’s claims against the radio station and shock jocks.

With regard to the fair-use issue, the Third Circuit rejected the argument that the radio station’s use of Murphy’s photograph was fair use because it was “news reporting.” In what likely will be a significant opinion for editorial photographers, the Third Circuit held that “[i]f it were possible to reproduce [Murphy’s] unaltered work, as a whole, without compensation under the guise of news reportage—a ‘traditional, reasonable, or likely-to-be-developed market’ for professional photographers—it would surely have a ‘substantially adverse impact’ on [Murphy’s] ability to license his photographs.” After a lengthy analysis of the fair-use factors, the Third Circuit held that all factors weighed in Murphy’s favor, effectively precluding the radio station and shock jocks from asserting fair use when the trial court takes up the case again.

Invest In The Potential

Even if you make it a priority to avoid lawsuits, you should still take steps to put yourself in a position to present a credible threat to would-be infringers. The best way is to timely register your copyrights.

Sadly, when discussing instances of infringement, one of the first questions that I’ll ask is whether the copyrights were timely registered. More often than not, this is when I find out that the copyright owner didn’t bother to register the copyrights, and when I begin to hear the litany of excuses for failing to register.

It’s easy to make excuses, and the ones I’ve heard more or less run the gamut. One of the more common excuses is that registration is too expensive, and that the owner couldn’t justify the $35 filing fee. The same people who use this excuse are usually at a loss when asked how the excuse will sound if they tell a judge or jury that they weren’t willing to invest $35 toward registration. Imagine how that same message will resonate when trying to explain that the images infringed are of significant value. From a business perspective, the registration cost should be seen as an investment, and the reality is that the $35 filing fee is a minor investment.


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