Photographers seem to leave their brains in their gadget bags when it comes to reading ads and solicitations from companies – both foreign and domestic – that claim to search for copyright infringements on behalf of photographers.  Visions of receiving wads of cash from the infringers with no lawyers, no aggravation and “no effort at all on your part” proves to be irresistible to many creatives. If this was a YouTube channel instead of a written blog, the two of us would do a skit as a late night TV ad spokesmen wearing schlocky suits, mismatching loud ties, holding wads of money, yelling how we can find gold in your photos. Yeah, there is gold in your photos, but if you don’t handle it correctly, if you don’t educate yourself and just buy into the ads, you may end up with just fool’s gold.

So it is with the plethora of photo “search” or “enforcement” companies that solicit the contents of photographers’ thin wallets employing “facts” that aren’t facts.  The temptation to “lay off” responsibilities, time and effort of searching for infringements and getting paid at the end of the road by a company “experienced” in so doing, is understandably very seductive and enticing.

In diving into the subject of search firms we inevitably fall back into our role as “mythbusters”.  Rather than repeat the myths put out by the search firms lest they gain credence by repetition, we will just provide the facts and just the facts about the real world of copyright infringement. 

1. THERE ARE NO ACCURATE GOVERNMENT STATISTICS NOR STATISTICS OF ANY KIND TO DETERMINE THE NUMBER OF COPYRIGHT INFRINGEMENTS SETTLED ANYWHERE.

Of all cases involving a copyright infringement, 99% are handled on a confidential basis without the public having any knowledge or access to the nature or claims, the extent of the claims, the validity of claims, who shot the subject image, how many were settled at what stage(s), for what amounts, on what terms or cases that failed to settle despite the best efforts of all parties and so on. This is so because about 99% of such cases are resolved without a court filing and thus no record of any dispute exists.  This is an estimate based on the collective experience of attorneys who handle these type cases representing both creators and infringers.

Lawyers are ethically prohibited from discussing their cases in public (with rare exception). Clients are instructed and more importantly REQUIRED to keep their mouths shut. Settlement correspondence and discussions had before, during and after a litigation generally cannot be disclosed.  Disputes that are resolved without the need to file suit are not recorded anywhere and their number and outcomes are not ascertainable by anyone or any group.

Ed’s office has handled thousands of copyright claims over 4 decades. The results of only a handful out of the thousands are a public record. The names of Ed’s clients and the names of the alleged infringers can not be ascertained by anyone where litigation was not filed – that equates to about 97% of all of Ed’s cases.  Now multiply that simple fact by the thousands of law firms who do copyright work and whose disputes are similarly confidential and private.

When cases settle either without filing suit, during or even after filing, before a trial or after trial but before the jury come back, all those settlements are confidential and may not be disclosed to third parties. These are known as NDA (Non Disclosure Agreements), that are so popular in the news lately. Ordinary people, not just porn stars have NDAs.  This means that someone who has either paid or received X$ (or nothing at all) is prohibited from disclosing that fact to the public including any search firm conducting a survey.  Some settlements involve things that must be done or must be stopped in lieu of or in addition to the payment of money.

Simply put, nobody knows or can know that Sally Photographer hired Joe Lawyer to write a letter about Bob Focus infringing on her copyright registered work AND that Bob settled by paying Sally $5,000.

The vast majority of copyright infringement cases, 97 or 98 percent, never get filed. Out of that 2 or 3 percent that do get filed in court, only one out of a hundred, 1% actually go on to a courtroom trial. One would need poll every single law firm which handled a copyright related matter during any given year, get 100% accurate responses just to make a guess at the number of disputes (valid or not) brought to the attention of a lawyer.

In copyright infringement cases nobody other than the parties involved can know whether or not the settlement included a license permitting the infringer to keep using the image for a given period of time in exchange for payment, who paid the attorneys’ fees and in what amounts were involved. All that information is confidential. The number of cases that reps, agents, galleries or stock agencies pursue claims without lawyers and on behalf of their clients and then settle, can not be ascertained, period.

So that’s why we call “BS” when a search firm states via precise and fabricated numbers of just how many cases are settled, filed, and/or for what amounts of money.  It is as if these search firms are accurately reporting the number of angels dancing on a pinhead, or the number Catholics who went to confession in 2017 AND what sins they confessed, or how many games the NY Jets will win this season. Nobody knows the answers to those questions.

2. WATERMARKS

Search firms love to claim that “X% of photographers who watermarked their images had them stolen” and “Y% had their watermarks removed”.

Really?? In maybe 10% of the matters handled by Ed’s office were watermarks altered (A separate violation under USC Title 17 Sec. 1201-1205 see our article “Watermarks”). How many of the watermarks were removed with the consent of the photographer…typically so the image can be used to sell or promote a product of service without the name of “Sally Photographer” emblazoned on the ad?  Cases of infringement where the photographer’s photo credit remained on the infringing use are not at all unusual.

Most ads and editorial uses run without the creator’s watermark by permission of the creator, which was sought by the licensee. Search firms love to leave that “qualifying fact” out of their absurd guesstimates.

3. SEARCH FIRMS CHARGE LESS THAN LAWYERS & ARE LESS COMPLICATED TO DEAL WITH.

There is truth to that, just like you can get the $2 McDouble cheeseburger at McDonalds, or the $23 cheeseburger with steak fries at Michael Jordan’s Steakhouse in Grand Central Terminal in New York. (Bacon is $3 extra at Jordan’s). Both are cheeseburgers, but the quality of the meat, the preparation, the taste, and the entire experience is worlds apart.

The search firm business models rely on the use of non-lawyers unfamiliar and untrained in the Federal Laws and how damages are computed. These non-lawyers have never set foot in a courtroom, do not know the market value of a given case in a given jurisdiction and cannot represent you in court.  They have no credentials, are often working from the EU and may or may not be high school students.  Harking back to a classic ad line from many years ago, as far as your cheeseburger, “Where’s the meat!?”

As an inducement to hire these unidentified non-layers instead of an experienced attorney who can get maximum value for your case – if indeed you have a case – search firms reference the “up front money” that lawyers may require or that lawyers will only take cases where the images were already copyright registered. The “factoid” that has been running through the photo community that a lawyer will not take your case unless it’s worth at least $30K is frankly a misleading lie. So the idea of hiring an easy and supposedly “free” way to collect from infringements of your work is very appealing.

So for giggles, ask your service to send you an email listing the cases where one of their attorneys (identities typically undisclosed on their site) has actually tried a case and/or his/her ability to value it. Do you want to get a quick $2k or hire a competent lawyer who will present you with a check for $50k to $100k? We use that range because we’ve seen that range in real life.  Ed’s office has been approached by people who have had $2k – $4K cases messed up by a previous, let’s say, “experience” with another entity handling it. Ed then tells them in his expert experience, handled correctly they have a $50K to $100K case. But once negotiations are started and offered, a lawyer can’t “restart” negotiations at another level. The courts will frown on that, to say the least. So end result, a messed up case.

So you have to ask, is the search firm providing a legal service and/or legal advice? That can be tricky in most states as every state has their own specific rules regarding the legal profession and what can be done without having a license to practice law in that state. So failing a quick and cheap settlement the firms need to hire a lawyer selected not by you and not with your input, but by the search company. They hate paying lawyers because with more hands to take a cut of the pie, the settlement pie gets smaller. We’ve seen “services” hire cheap inept lawyers, who are referred to as “Pioneers” because they are early settlers. They settle with any first amount offered. That means even a smaller pie than it should be. So while a quick $2K to $4K behind door number one sounds wonderful, how wonderful would you feel if you realized that behind door number two was $100K?

Sophisticated infringers and/or their attorneys (and there are many) offer the early settlers very low ball amounts that they are happy to pay, knowing what a real infringement is worth. The search companies are very happy with a lot of quick cheap settlements, as that is very profitable in their business model, even if your single case collects far less than it’s worth. Actually doing the work and putting in the time to collect a higher amount is not as attractive to them. It’s a volume game to them. Your case is just one brick in the wall.

Some companies that infringe and face a demand letter, do risk assessments to see what their financial exposure is in an infringement. Some simply ignore a lawyer’s demand letters because their research shows them that search firms rarely and have litigated a copyright infringement case. Their attitude on settling changes rapidly when they realize they will not be dragged into court. That dear readers is the real world.

Our advice, register your own work, hire your own local lawyer, who you know from your own research has actually litigated IP cases in the courthouse where your matter may wind up being heard.

Have you had an attorney – any attorney – read a search firm’s Terms of Service?  Please, please folks use your common sense. Advertising is the art of deception, as all advertising photographers are well aware of.  Get the advice of a local attorney in matters of this kind and have lawyer read what you’re getting involved in with a search and collect company.

That’s a lot to absorb. So more to come in Ads and Fool’s Gold – Part 2.