Wednesday, February 16, 2011

Copyright - Enforce it Wherever possible

I read with great interest an article on the web site "webcopyplus" - Legal Lesson Learned: Copywriter Pays $4,000 for $10 Photo - where the website admits to stealing a photograph "...frankly, we screwed up." and then tells the tale of one of their copywriters who was "were under the impression that images on the Web without any copyright notices were “public domain” and therefore free to use. Naive? Yes."

Naive indeed.

The story reads like part admission of guilt, part "...we got busted and learned a lesson, but everyone does it..."

What lessons should photographers take away from this?

(Continued after the Jump)


First - register your copyright. They said that if the lawyer had contacted the design firm instead of the client, they had some options "Had the lawyer engaged Webcopyplus, in which case our client wouldn’t be caught in the middle, we would have had options: ignore the letter; say, “Go ahead, sue us”; or respond, “$1,925 is our final offer,” which there’s a chance they’d accept." When their request for a copy of the registration certificate was not provided, they were able to go to the Copyright office's website, "and by entering a registration number at the U.S. Copyright Office’s website (www.copyright.gov), we were able to confirm the image was copyright registered and the lawyer’s client was the rightful owner." Now, they are taking the demand seriously.

Second - (and I learned this from singer/songwriter Jon Sebastian) WHENEVER you learn about someone infringing upon your copyright, you should pursue it with great vigilance. By doing this, not only can you generate revenue, but you teach the greater community of users of photography that if they steal, they run the risk of paying the price.

Third - Don't try to go it alone. Get a lawyer. When you have a lawyer, people realize you're serious. The first correspondence from the lawyer to the infringer included the sentence "“Cease and desist demand and offer to settle copyright infringement claim, and digital millennium copyright act claim, subject to Rule 408, Federal Rules of Evidence.” according to the infringer. This is a critical sentence, because the letter made a demand for money, and if that sentence was not in there, the amount that the lawyer was asking for on behalf of the photographer to settle the claim would be something that could be introduced into evidence during a trial, and limit the amount the photographer could actually win during a trial.

Fourth - Engage the infringing entity - in this case, while the infringers were both the design firm and the company, going after the ongoing infringer - the company, you not only will often get a better response from their lawyers, but the company likely also carries insurance to cover lawsuit/settlement losses, and they will likely pursue reimbursement from the design firm. Many design firms don't have these protections, nor lawyers on retainer, and are likely to try to sweep these things under the rug. In this case, the infringement gave a black eye to the design firm in the mind of their client, so there was no sweeping under the rug! They noted - "It was a tough pill to swallow, but we were the ones who messed up, and salvaging the client relationship was priority."

The design firm suggests, regarding the settlement amount "We felt — and photographers we spoke to agreed — the proposed settlement amount was excessive." Well, I'm not sure whom they spoke to, but $4,000 is a very small settlement amount, so whomever they spoke to that represented themselves as photographers must really not understand the value of the photographs they produce - perhaps it was they who also advised a valuation of $10 - "Why would copywriters at Webcopyplus pay $4,000 for a digital photo that retails for about $10?"

One really bad thought that was posited was "...Based on recent discussions, even after we shared our story, some continue to suggest copyright laws are blurry, and insist if you ever run into conflict and get a threatening letter, you can simply delete the image and toss the document in the trash (one designer even labeled it “delete and toss”)." BAD IDEA. They then acknowledge that "While this might work with some individuals and organizations, particularly if they’re in a different province, state or country, which might make legal costs prohibitive, be aware: you could end up in a lengthy and costly court battle. For those who insist, “It won’t happen to me,” mind the fact that this beach photo was the only one we’ve ever grabbed from the Web for a client’s website. And it cost us almost $4,000. Consequently, we urge others to recognize and yield to a simple fact: If it’s on the Internet and others wrote or created it, do not use it without their permission."

While it's dubious to believe "...this beach photo was the only one we’ve ever grabbed from the Web for a client’s website..."
in the end, now, there's one less company out there who is under the misguided thought that if it's on the internet, they are "...under the impression that images on the Web without any copyright notices were “public domain” and therefore free to use." and who now professes "...We apologize, and it won’t happen again."

Good.

(Disclaimer - I am not a lawyer, nor is this specific legal advice, but rather general information for your review and consideration.)

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.

7 comments:

John Sartin said...

I agree that copyright should be enforced.
I would like to get your opinion on the case of a Tucson photographer in a copyright infringement battle with multiple publications. In the aftermath of the recent shootings here, a portrait of the youngest victim taken by him ended up on multiple national media venues. Here is a link to the story.
http://www.kgun9.com/global/story.asp?s=14010688
Thanks!

Rick Sloboda said...

Hi, John.

Thanks for spreading the word. While some photographers have made negative comments, many appear grateful that we’re sharing our story so others can learn from our mistake. By creating awareness, everyone benefits.

For the record, this photo was, in fact, the only photo we’ve ever used on a client’s site (FYI, it was included in a blog post). As writers, we deal with copy, not visuals.

TD said...

John: Your post highlights the good and bad of the photo business and demonstrates the feeble mindset of infringers.
What was rather telling in this matter was that the infringer was the design firm and not the actual end user. The client here no doubt had a contract with the design firm with the important (and standard) representation and warranty that all work provided to the client was original and that the client had the right to use it unchallenged as well as an even more important indemnification paragraph in which the design firm indemnified the client and agreed to resolve all disputes arising out of the design firm’s work. The design firm was facing litigation from the photographer and litigation from its client. That no doubt was the telling factor that caused the design firm to settle for what they call an outrageous amount. It also appears as if the design firm had poor insurance coverage, if at all any coverage, as there was no mention made that it discussed the matter with its insurance company. Commercial general liability policies have a section or endorsement that covers advertising injury, which covers copyright infringement. Many insurance companies have also added exclusions to copyright infringement because they have been put on the hook by unthinking clients, as is the case here, so maybe the design firm was hanging in the wind. Hence, the design firm was left without mercy and had to settle the matter immediately
The photographer’s attorney, as a courtesy, should have included a copy of the Copyright Registration to make it easier on the infringers. But, he did list the Certificate Registration Number which permits one to search the records of the US Copyright Office to confirm ownership. Importantly, their pro bono attorneys no doubt told them that because the photographer had registered his image(s) that they were facing an award of statutory damages and fees. An initial letter is always taken seriously if the photographer has registered his work. The design firm should also be pleased that the photographer’s attorney sent an initial letter, rather than filed a copyright infringement action in federal district court. Oddly, some photographers feel otherwise, as evidenced by a post on Sportssshooter about Righthaven, but there is no requirement that a copyright owner give an infringer advance notice, and poorly worded letters containing threats of legal action can give jurisdiction to the infringer to file a declaratory judgment lawsuit in federal court seeking a declaration of non-infringement and invalidity of the photographer’s copyright registration.
You are correct that any demand letter than contains a specific value should take advantage of Rule 408, Federal Rules of Evidence, but it is not based upon the dollar figure. Rule 408 prevents the prevents the receiving party from using any statements made in settlement talks against the party making the demand/offer or prove liability, invalidity of amount of any disputed claim. It permits the parties to freely exchange information with each other in an attempt to show the strength of their position. Any demand of offer of settlement should always be shrouded by the cloak of Rule 408. A good IP or litigation attorney will know this, reinforcing your comment to “get a lawyer”, though you may want to modify it to read “one that understands the nuances and vagaries of copyright law.”

I find it offensive that the infringers feel that they can instantly value a photograph ignoring the conditions as of the moment, noting why they should pay $4000 for an image that could be found for $10. I figure that the $4000 figure netted $2500 to the photographer and $1500 to his attorney. Had they contacted the photographer when they were researching images, they may have licensed it for less, maybe $1000-$1500, based on the negotiating skill of each side. Even if they had agreed to pay the photographer $2500, they would be $1500 ahead but never have the black mark against them that their client has now attached to them.

Robert Moldaner said...

John, I'm glad to see a few people are getting the message. I own a retail camera store, and we constantly have customers bringing in photos or slides to be copied and it turns out the image is copyrighted. This happens very often with portrait photos. They think that, because the photographer took the photo for them, that means its theirs.
Fortunately, most of the photographers are local and known to us, so we call and get an release from them before doing anything. They appreciate the fact we are looking out for them, which also builds a good relationship. Unfortunately, many customers just take their photo elsewhere to someplace not as diligent.
We also do design work for posters and display signage, and the only images and artwork we use are either purchased by us, or public domain. Sometimes, you just have to do what's right.

DIegoCorreal said...

What do you feel about this article?

Photographer seeks fees for image of girl

http://www.azcentral.com/business/articles/2011/02/17/20110217giffords-wolf0218.html

kurtwerks said...

I'm not really persuaded that the copywriter was under the impression that stuff on the Web is free. A design firm should know better. I'm also not convinced that "copyright laws are blurry" -- copyright begins at creation -- and in any event it's a lame excuse. The entire article had the tone of, "We got nailed and it sucks that we're the ones being made an example so we're going to whine."

Sorry, folks, but the "All the cool kids are doing it!" excuse was over in junior high school.

Vancouver headshot photographer said...

Although photo-copyright infringement happens constantly these days, the two other basic steps that photographers can (and should) take are:

1- Have all of your photography clients sign a contract that includes your permanent Copyright of all images taken.

2- Don't upload images online without a watermark.

Neither of these steps will guarantee that your images won't be used without your consent, but it will help somewhat.

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