How to fight is as important as knowing when to fight. Experienced litigators know when to pull the trigger and file a lawsuit. More importantly, they also know when to be patient and wait for the right moment to act if action becomes necessary.
An attorney who is wise enough to assess and accept a legitimate case from a reputable client knows enough to attempt to settle the case on reasonable terms if at all possible. And “no”, there is no $30,000 damages threshold before a lawyer decides to pursue a copyright infringement claim as some trade associations have been broadcasting. These trade associations are pushing unrealistic numbers and made-up cost of suing for infringements in order to scare photographers and artists into supporting their lobbying efforts in Congress for a small claims path. Their numbers are probably backed up by statistics and charts, but are as real in the real world as flying unicorns. But there is a terrible residual effect with photographers feeling that litigation is too expensive or their case does not meet the imaginary $30,000 threshold.
A small claims path, depending on the final language, in our opinion, would be a very good thing. Such a process could be a great way for many photographers to receive what is due them. Ed has even filed a white paper on the subject years ago for APA, that was submitted to the Copyright Office (Remedies for Small Copyright Claims: Response to Notice of Inquiry (77 F.R. 51068) (Docket No. 2011-10) and that you can read on file at the Copyright Office or at this link.
You might ask, “How do we know the numbers aren’t real world”? Answer: each of us has been in the industry for 37 years. We base it on the fact that that is what Ed’s office does and has done for over 37 years. While Ed has litigated cases worth much more than $30,000, he’s had numerous cases that were “worth” far less than $30,000, but still represented a big check to a suing photographer. Jack has also sued for infringement on cases not, “worth $30,000” or cost “hundreds of thousands” to pursue. So scaring away photographers into thinking these are the facts is throwing out the baby with the bathwater because some entities want support for this small claims path. The goal is good, but they way they’re positioning it can have terrible effects.
Most importantly, like most non-attorney commentators, it erroneously assumes that most claims result in court filings. They do not. Only experienced litigants (ie stock agencies) and experienced litigators know that good cases get settled out of court most of the time while great cases almost always get settled without the need to start a legal action.
Back to the point of this article – real life. There are cases which require immediate filing in court. i.e. a model is being falsely portrayed in an ad as a drug dealing prostitute on billboards at the Las Vegas airport or a registered image is being used without license on every bottle of Pepsi on store shelves from Portland, ME to Portland, OR. Those situations are real cases and thankfully, relatively rare.
In nearly all non-emergency cases a thoughtful, skilled attorney will reach out to the infringer’s counsel, ascertain the source of the offending image, the nature and extent of the infringements and the relative desires of each party to permit or cease such offending use. This process takes place before and in order to determine whether paying the $400 court filing fee and committing to war via litigation is the proper course of action.
Attempts will be made to resolve the matter on some equitable basis depending on many factors including but not limited to: whether the image was registered, what state or which federal laws may have been broken in addition to copyright infringement (ie whether a model release obtained), was the infringement likely intentional/grossly negligent, or can an argument for a fair use (or other defense) be plausibly made? Is the photographer (or model) willing to allow continued use for the right price? Of paramount importance to you as the plaintiff (the suing party), what is the attorney’s experience and judgment in assessing the value of the case at settlement and/or at trial?
Most attorneys who prosecute and/or defend an occasional photo case have no idea as to what any given case is worth for settlement or trial purposes. The smart ones know by the experience of having handled many and/or seek help from those experts who do know to render a second opinion. A practicing litigator, with many court settlement conferences, motions and trials under his or her belt, are also known to the Federal Judges in that District and their reputations at knowing the value of an infringement is taken into account by the judges and Magistrates who actually attempt to bring the parties together.
Attorneys who are inexperienced in the process betray themselves early to both the judge/Magistrate as well as their clients. They are anxious to sue as they lack the more difficult skills necessary to make a reasonable settlement. They are unpracticed in the methods by which the time, aggravation and expense of litigation might be avoided. With rare exception, litigation is never “fun” for the plaintiff and frequently a photographer, illustrator, stylist or model may lose one or more work days due to his/her requirement to be in court or at a deposition.
Beware of attorneys who are anxious to file your case before reasonable attempts at settlement have been exhausted. Make sure that you are fully involved in that process and that your attorney makes no demand nor accepts/rejects any offer without your knowledge. You may very well wind up before a judge or jury who will determine your case but so doing should be your last resort not your attorney’s first choice.
Experience and a steady hand counts when hiring an attorney who at some point might have to explain to a Federal Court judge why the Court’s time is being wasted before a realistic attempt at settlement has even been tried. Failure to make serious attempts at settlement prior to the filing of a suit may result in serious financial penalties being assessed by the Court against the culpable attorney. Some judges refer to such rash behavior by lawyers as, “running with scissors”.