Currently playing on a computer screen near you are these two myths. The first one is as old as we are, the second is fairly new and for the life of us we can’t figure out its genesis.
Myth 1 – You don’t necessarily have to sue in Federal Court for copyright infringement. WRONG, you do.
Original jurisdiction over civil copyright infringement actions is conferred exclusively (only) on the United States District Courts (the Federal Courts). Neither state nor local courts have the power to hear or adjudicate copyright infringement cases period. For those of you who continue to doubt us, whether legally trained or otherwise, the law is at 28 USC Sec. 1338(a). There is no room for discussion or debate. It is what it is. You can’t sue for copyright infringement in small claims courts. If the judge or opposing attorney has a legal IQ of 6 or more he/she will toss you out of court. Wrong Church regardless of pew. A decision incorrectly issued by such a court adjudicating a copyright claim is of no value and may be vacated (thrown out) via minimal effort.
Note that not every action predicated on rights derived from the Copyright Act is necessarily an action for copyright infringement. For example a claim to royalties or sales commissions due under a licensing agreement which just happens to concern copyrighted materials. Such cases are not “real copyright cases” and can be heard in certain instances in state or local courts. The determination of the correct legal nature of the case and where it should/must be brought must be made by a lawyer not a layperson. Classic example: salesperson sells a copyrighted work/item and is entitled to 10% of each item sold or licensed. Sales are made and licenses procured by hard working sales person. Copyright holder fails to pay salesperson. Salesperson sues. This is not a “copyright infringement suit” and likely can be brought in state court.
2. Terms and Conditions of Your Invoice Can Not Appear on Your Estimate. MYTH
Where do people get these ideas? The same terms and conditions (T&C) we provide in our book for use on your invoices can and should be used on your written estimates. There are comments on the web which seem to imply that you can’t use terms and conditions for the first time on your invoice. The “reasoning” employed is not worth repeating. Feel free to employ the terms and conditions on your invoices on your estimates as well so that your client or potential client knows what your T&C are and will be. Ignore well meaning persons who suggest that the value or effectiveness of T&C is undercut if first employed on your invoice.
Where do otherwise intelligent people get these ideas from? Who wrote the Book of Love?
#1 by Benoit on July 24, 2010 - 7:44 pm
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Ed,
Regarding the T&C appearing on the invoice (only) and not Estimates (which I wouldn’t do…I’d put T&C on estimates too, especially when getting a PO).
What happens in the case where you send an invoice for service rendered (let’s not debate the advisability of doing something THEN trying to get paid…) with T&Cs that the customer finds too onerous.
If discussion can’t resolve the impasse, couldn’t it be a cause for action?
Or couldn’t the client say “hmm…I’m sorry but those T&C don’t do it for us. We won’t use your images.” In which case the photog might be out of pocket for production fees?
Granted in such scenarios, there probably wasn’t a great relationship with the client to start with.
#2 by admin on July 25, 2010 - 3:05 pm
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First off, all of your T&C should have been agreed to (in some written form) prior to shooting – typically and preferably via an approved, signed estimate. But that writing can take the form of an invoice. An invoice need not be issued only after a shoot. It can be rendered prior to one including such terms as future shoot/delivery/payment dates and (ie) a demand for an (immediate) down payment for expenses or otherwise prior to any prep work being done.
It is of course conceivable that if there is no communication nor agreement between the parties prior to work being performed, there can be a dispute. These situations are hardly limited to photographers and illustrators. The failure(s) of two parties to confirm their understandings, terms and conditions of a job in writing prior to completion of the job are one of the things that cause people to pay lawyers and permit lawyers to pay their bills.
The negotiating isn’t just your T&C. There is also the client’s PO terms to negotiate. Jack has many times had to negotiate with a client to change the client’s terms. And several times Jack has walked away from a job because of terms he couldn’t live with. It’s just business and business many times is about negotiating. If photographers, athletes, actors, etc. were good negotiators, there wouldn’t be a need to have knowledgeable and experienced agents.
Ed and Jack