Proceed with Caution: The Retroactive License

One tactic in resolving unauthorized uses of one's images is to offer the copyright infringer a "retroactive license". This solution is often employed by photographers once the infringement is discovered, before engaging an attorney, or understanding fully what the risks of doing so are.

What risks are there in doing so?

(Continued after the Jump)

Nancy Wolff wrote in this article Masterfile wins $46,816.91 in internet copright infringement suit about how the court considered the amount of the retroactive license when awarding damages. Wolff wrote, in part:

"Before finally bringing a lawsuit, Masterfile offered to enter into a retroactive license agreement with J.V. Trading for the three years that J.V. Trading infringed. Although J.V. Trading did not respond, the courts used this offer as guidance in assessing whether the damage award requested by Masterfile was reasonable."

So, how does this work? Well, suppose you would normally license an image for a specific use for, say, $275. Oftentimes, a photographer might offer then, a retroactive license (that is, to pretend that the client actually licensed the image and was billed for it) for 3X the original amount. Sometimes, it's the amount PLUS 3X, or sometimes it's just a total of 3X the original amount. Either way, be careful when doing so, as you may place yourself at risk of a lower final judgement/award in your favor by doing so. A retroactive license should be a part of settlement talks, if at all, rather than a general offering, since settlement talks between both parties are not to be disclosed during court proceedings, thus, you would not be hindering yourself.

Lastly, make darn sure that whatever you do, you resolve only the infringment(s) at hand, and not grant to them a blanket agreement/license/settlement for "all infringements", since what you caught may be the tip of the iceberg.

---

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.