There is a famous quote attributed to Mark Twain, who in turn erroneously attributed it himself to Benjamin Disraeli, which has been used by many, and is absolutely one of our favorites. It goes: “There are three kinds of lies: lies, damned lies, and statistics.”
This will be a blog article on statistics.
Some in the creative industry have lately cited to the American Intellectual Property Law Association’s 2013 Annual Report of the Economic Survey. The survey claims that the average “cost of a copyright claim through trial ranged from $373,000 to $2.1 million“. The key words being “through trial”. This factoid has been cited for the proposition that photographers ought enlist the services of for-profit businesses that purport to police copyright infringements and recover money for photographers whose images have been infringed.
The reference and the figures, to be diplomatic, are not applicable to at least 99.999% of all situations where an infringement of a registered photo is alleged. Throwing these absurd numbers at creatives serves to dissuade them from bringing such actions and/or select a company to pursue their rights. They throw these statistics out because it sticks and it works. Let’s dissect and go beyond these statistics for a moment.
1.) 95%, or more, of all claims for photographic infringements are settled or withdrawn prior to the filing of any court action.
2.) 95%, or more, of all filed lawsuits of whatever kind are settled or discontinued before a trial is commenced.
3.) The statistics – if accurate – include legal fees for mega copyright cases brought by large corporations frequently against other large corporations.
4.) Ed’s office has been involved in one capacity or another with several thousand photo/illustration copyright claims over the years in NY, CA, Fl., TX, NJ, MA and elsewhere. In no case did the author’s “costs” remotely approach $400,000 in a copyright case. A Rolls Royce may have a sticker price of $350,000 while a Honda Civic goes for $25,500. Does that mean that new cars generally go for about $350k?
5.) Ed did a mini analysis and review of the over 100 cases he has handled personally in just the NY Federal Courts alone. Other attorneys in his office have litigated still more. None could cite a single instance of a photographer or illustrator incurring such fees as the report claims. Good cases get settled; larger legal fees are incurred in questionable cases especially if the claim is not a valid one. In such case the other side will likely not settle and the legal work increases thereby.
6.) If the author’s work is timely registered and he/she prevails in the action, reasonable attorneys fees and/or actual attorneys fees are recoverable by the author and commonly awarded by the court.
7.) Stories of copyright claims gone bad or unresolved written by photographers or illustrators who did not retain legal counsel should be taken with a salt mine. Our wives wish we had a dollar for every tale of woe authored by a photographer who was ripped off and received nothing but a threatening lawyer’s letter from the infringer. It is frankly, incredibly naive to think that because an artist sends a letter (regardless of its contents) to an infringer’s attorney that an apology, credit and good money will come from that lawyer whose client has already stolen the subject work? Artists think they will make an infringer feel guilty. Guess what? They will never feel guilty about stealing your work. To them it’s business.
8.) Lawyers send letters to creatives which are calculated to scare and intimidate the artist. Such letters are sent because they are effective. Newsflash! Creatives tend to avoid conflict and scare easily. An attorney representing an infringer knows that he/she can send a photographer/non-lawyer just about anything on legal stationery and the photographer will believe its contents, then bitch to his/her brethren about “getting screwed” and then go away. Fear of fight causes flight.
It is the lawyer’s job to make you go away and protect his client’s money. (See our Head Fakes article here). It is ironic that photographers who bemoan the loss of work owing to jobs shot by amateurs elect not to consult a professional when their work is infringed.
9.) It is our experience that companies who purport to chase infringers employ non-lawyers who have no experience or concept of what actually goes on in Federal Court. They settle cases at amounts that have no bearing to what such actions would likely settle for in front of a judge or magistrate. Having non-credentialed, unknown persons who collect a percentage of any recovery handle legal matters where potential recoveries to the artist can exceed six figures, is about as logical as having a layperson do your next root canal.
10.) Anecdotally and based on the reports of dozens of photographers who have used these services, we can tell you that the photographers would have been financially far better off had they simply hired a competent copyright attorney.When a lawyer represents an infringer and the author is represented by one of these companies, a competent lawyer will want to drag the matter out and force the company to do as much work as possible. Such companies do not like to pay attorneys or spend lots of time when they can settle out quickly. A simple fact of life. In the legal biz they are called “pioneers” – meaning early settlers. Ask for the names of any/all cases such businesses have taken to trial.
11.) Agents, stock agencies and others want your claims because pursuing them is profitable. Some photographers make more money pursuing copyright claims than they generate via licensing and assignment work combined. Stock agencies who pursue infringements of registered work make many times the “regular” licensing fee for the work by asserting claims in infringement. Ed represents many a photographer who license his/her stock directly. Recoveries/settlements always exceed the sum the image would have been licensed for if the infringer had obtained a legitimate license from the agency or photographer. Any competent copyright attorney should have a similar track record.
As we have written many, many times – never, never assign the right to pursue your copyright action to a stock agency, agent or any company purportedly “set up” to do this work. If solicited by any of such company ask them to provide you with a list of employees and their qualifications to handle your case. Request especially the names of any filed copyright cases where the employee/lawyer who is going to handle your case has actually appeared in court. The names of cases and attorneys in the Federal Courts are a public record. Any refusal to provide such information tells you all you need to know.
12.) A last issue to be aware of with stock agencies, is if the infringer is a regular client of theirs, they tend to not be as interested in getting you as much as possible. Their client’s check for images is more valuable to them than your supplied photographs. We know of one photographer who came to Ed with a case possibly be worth 5 to 6 figures. But by contract, his stock agency retained the right to pursue the infringement. He could not pursue the matter himself. They “settled” with their client/infringer and the net settlement check the photographer got was for less than $100 (that’s 2 to 3 figures for those counting).
When you need a dentist you go to a dentist. When you need a lawyer you go to a lawyer. If your copyright has been infringed you need to see a lawyer. There are no substitutions on this menu. Copyright enforcement is not a subject for DIY.
Register your images and you get attorney fees if you prevail. The statistics quoted at the top of $373,000 to $2.1 million are used to scare photographers into giving up their rights to pursue these cases and handing them over to companies who profit. The numbers are intimidating and misleading. It includes ALL copyright cases, assumes a trial to a conclusion and includes things that are not “legal fees”. Your mileage may very well vary. A lot.