I was struck by the article in the UK's Guardian recently, titled "Is a picture really worth £1,000?", and sub-titled "A church and small businesses are just some of those accusing picture agencies of using heavy-handed tactics when pursuing payment", and I thought - "heavy handed?"
The article then goes on to attempt to diminish the value of the photographs, in an attempt to make those insisting on payment look ridiculous.
But they're not.
If I say "my photos are worth $1m", then that's what *I* value them at. For some form of validation, I have to convince someone to pay that. Once they have, then, regardless of what you think, they are worth that much - atleast to somebody.
The criticism though, comes in, when it's suggested that a photo should have been valued at $50 - had the license and permission been recieved before-hand, and that the rights-holder - in this Getty Images - was now demanding 1,000 pounds. What is the purpose of this?
It's short-hand for "we will sue you, but if you want to make a retro-active license for it, we'll do that for that much."
What is the purpose for this? To deter future infringement. In the article, one of the parties involved in an infringement wrote about the churches that are involved "now regularly reminds all churches to ensure that all the images they use are fully licensed."
The purpose in Copyright, generally speaking, when courts grant punitive damages (and this is where all those $150,000 per infringement pie-in-the-sky copyright infringement ideas come from) is as a punishment to deter future infringements. Is it ever that much? Not very often, but it's a big stick that forces infringers to pay attention to the lawsuits, and come to a settlement.
Lofty figures, whether during an infringement suit, or as an offer of a retro-active license, are put forth to deter future people from doing it, and then just paying when they're caught red-handed.
Should you do a retro-active license?
If you do, be very careful. Your offer should be a part of an "offer in settlement" between you and the other side, because if you don't define it in that scope, your offer could diminish the future court case because figures that are a part of an "offer in settlement" are not disclosable in court proceedings. Further, if you do do this, make darn sure that you are excruciatingly specific about the use, and that, as a part of the retro-active license the other side certifies that they have not previously infringed your works, and are not currently infringing your works, and that this offer in settlement is specific to that one use, and that any other infringements will be handled separately. Often times, having an attorney handle these issues where your claim is in the $1k range, will be well worth the letter an attorney might charge you $250 for. All of this rides, however, on the fact that you are registering your images and have the teeth to back up the larger looming claim if they don't settle.
As always, talk to an attorney about your specific situation, since I am not one.
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.