One of the first questions creatives ask (to themselves or others) when their work is infringed, is, “How much is this worth?” or “What can I get out of this”? Logical questions to ask.
One of the worst things you can do is ask your “friends” online. If you want a boatload of bad information and an assortment of fantasies then ask for a legal assessment from other photographers and artists who have no legal training whatsoever.
Some of your comrades will not doubt offer up the suggestion that you, “Send them an invoice…charge 3X your normal fee” or “It’s worth $150K because your work is registered”.
Sending an invoice right away is one of the dumbest things you can do. If the infringer pays it (a rare occurrence) it’s usually a sign not that the infringer feels guilty, but rather they see an opportunity to get away cheap. You may be sending a bill for the equivalent of a dinghy and they know the infringement is the Titanic. You just settled for the tip of an iceberg rather than the whole iceberg. You (or your lawyer) must always know the full nature and extent of any infringement before setting a price to even try to settle without suing.
There are dozens of other “standard” and equally horrible suggestions offered up by creatives to their brethren daily. Know that the realities of determining “value” or “damages” in the courtroom where you actually pursue the SOB who stole your work, will be vastly different than what you hear online from people who do not actually go through the process on a regular basis in that courtroom. Being a patient does make you a doctor.
Any lawyer who upon hearing your side of the story instantly gives you a price or value such as, “ You are looking at $40,000 for this case” is someone to run away from. Infringement cases are like snowflakes, no two are exactly alike. There are so many factors in each intellectual property case that each case is very fact, case and geographically specific.
Nationwide fully 99% of copyright and right of publicity cases are settled on a confidential basis. Settlements are not made public nor are disclosed to other lawyers not involved in the case(s). A lawyer inexperienced in the intellectual property area field would have no way of knowing what given types of cases were/are “worth” in their local state or federal jurisdiction unless he/she actually handled cases of this type.
Contrast this with the thousands upon thousands of public verdicts and judgments in personal injury cases. Busy personal injury attorneys and insurance company “settlement personnel” practicing almost anywhere in America can give an educated appraisal of the value or settlement value of almost any such case no matter how tragic. Not so in IP cases.
You need a lawyer who knows “what things go for at settlement” in the court where your case will be filed. That lawyer needs to know how both judges and juries think in your neck of the woods. What a jury in Provo considers to be “off the charts” may be looked at in Brooklyn as “chump change”.
Ask your prospective attorney for the names of cases filed and especially how many cases like yours he/she has settled in the court where you case will be filed. He/she likely won’t give you exact figures but if you can’t give estimates based on the lawyer’s actual experience or first hand knowledge of local practice you are talking to the wrong lawyer regardless of whether you are a plaintiff or defendant.
Many otherwise competent attorneys have no real idea as to what a given IP case is “worth” for settlement purposes or at trial because they have no way to find out what similar cases have settled for. You can check the approximate value of a used car or piece of real estate by checking any number of reliable independent sources. Not so for legal cases.
Ed has settled cases for many times that which the other attorney earnestly but mistakenly believed was fair. Occasionally a judge or magistrate will say to the (bad guy’s) lawyer ” I can’t believe that you did not settle this for X$ when Greenberg’s client made you that offer”
As crude as it sounds – you need an attorney who knows his/her way around your local market, the practices of the people who run it, the going prices for things sold there and so on all because that lawyer lives and works in that local market.