The great writer Mario Puzo wrote about the underworld of gangsters and in his seminal book, “The Godfather” , summed up the world lawyers live in quite eloquently with the line:
“We are all honorable men here, we do not have to give each other assurances as if we were lawyers.”
It’s amazing what can come out of a lawyer’s mouth while they keep a straight face. In real life that ability spills over to the things lawyers write even to other lawyers. We present the following to you as photographers and artists to help you be aware of the very common practice of lawyers throwing excrement up against a wall to see if any of it sticks. Photographers either hear or read the words, and believe them, but typically it takes a lawyer to smell the droppings.
Here are some real life examples slightly edited – unfortunately to protect the guilty. The “claims” below are from Ed’s letters, the “responses” from lawyers representing infringers. Note that none of the lawyers in any of the cases denied the allegations of copyright infringement or that their client should have had a model release. Every lawyer in these cases has already admitted that their client is “guilty”.
* Claim: “Your client – without license, consent, permission or notice, stripped out from the registered image our photographer’s watermark, metadata and embedded copyright notice. Then it cropped the image to eliminate the background of a (public park) and inserted via Photoshop, the food court at the shopping mall located at 155 Main Street, XYZ City, Kentucky even though neither the photographer nor any of the models have ever been to XYZ City, KY”.
Attorney response: “Assuming all of the above is accurate we do not think that our (infringer) acted in bad faith or was willful in any respect. It simply and innocently used a photo which perhaps it should not have”.
* Claim: “…not only did your client (an ad agency) infringe on this copyright registered image, it also failed to obtain model releases from any of the 4 professional models who appeared in the original campaign and who were paid well over $25,000 for their services”.
Response: “We fully intended to compensate any of the models who may contact us after seeing our ad. Fact is you are representing the photographer (only) when/as/if we get a letter from a model/model agent or lawyer rest assured my client will deal with it”.
Here the “response” comes first. This first one is just the best of many similar claims in other cases:
* Response: “Mr. Greenberg you must understand that our client is a small mom and pop company unsophisticated in the ways of advertising”.
Ed writes back: “Your client maintains four offices in 4 states along the Eastern Seaboard, a fleet of over 100 trucks and cars, has over 150 full time employees, an unknown but large number of part time employees and advertises in thirty states not including its national web advertising. Our client is self-employed, rents a live/work studio apartment in (St. Louis) and is a customer of ZipCar. Unless all of your employees are married to each other and have spawned children we believe you really can’t call your client a ‘mom and pop’ operation. Then again a jury might disagree with us so maybe you should stick with the “mom and pop” reference”.
* Claim: “Your client was supposed to issue a check to our client (model/photographer/illustrator) on X date. Your client has delayed payment three times even though it has admitted to mine in writing, 4 times that the check should have been delivered by hand by X date. It is now 5 months since X date which is why the model/photographer/illustrator) has come to me – exasperated”.
Response: “Our client is very sorry and takes matters dealing with intellectual property very seriously. It has been unable to get your client his/her check in the sum of $20,000 as agreed for the unauthorized use of the artwork due to internal problems of its own making. We apologize again and will have the check on your desk within 24 hours”.
Three days later Ed writes: “We don’t have your client’s check which was due two days ago”.
Lawyer “We know – its our client’s fault”.
Ed: “Your client is a bank and one of the world’s largest at that. Are you telling me that this BANK is not able to issue a $20,000 check that is already 5 months late? Perhaps the Wall Street Journal should be apprised that this mega bank is apparently on life support.”
…and for desert…
* Claim (One of Ed’ s standard lawyer letters in effect saying,“…your client done stole my client’s photo.”)
Response: “(We admit photographer is right) To settle this matter our client will pay yours $1,000 which is an amount that you and I both know is many times that which your client would ever receive for licensing this (very ordinary) photograph anywhere for anything”.
Ed’s response: “Did you know that your client infringed by copying the registered image from an issue of (insert big time publication here) which had paid ours a licensing fee of $19,000 to use it? Did you know that the image has also been licensed dozens of times by major companies and never for a fee of less than several thousand dollars? (Our client) wants to know if you knew that would you still have made both such a stupid statement and a fool of yourself?”
We wish we could say it’s life in the real world, but it’s really life in a lawyer’s real world.