Attorneys in New York (and most other states) are required to take continuing education classes to keep their licenses to practice law. Recently I took one such class which dealt with copyright issues or more correctly, how best to represent a client accused of copyright infringement. Likely 95% of the attorneys taking the class either represent infringers or are trying to snare such cases.
The class was taught by a sophisticated practitioner who provided what I will term a “check list” of techniques to beat back the typically valid claims of a photographer, illustrator, graphic designer or artist. He gave the game plan that a defense attorney ought use and how to educate those relatively few clients who have “innocently” infringed. Here’s a look at what your clients’ attorneys do and what they tell your clients in their joint effort to avoid paying you money.
1. He enumerated the factors and cases which deal with “fair use” making it abundantly clear that the defense is rarely applicable but should be claimed “even if there is a slight chance of success”. He pointed out that since the fair use test is not a bright line test, ie a 55 mph speed limit, its always worth asserting so as to scare off creatives especially when the artist has not hired a lawyer choosing to represent himself;
2. Send a letter saying “We have taken it down. Thanks for letting us know. Goodnight”. Never offer real money to a non-represented claimant. Few photographers hire lawyers. If you do hear from a lawyer then you can start paying real attention to the case.
3. Insist on being provided with a copy of the stamped Copyright Registration and do nothing regarding possible settlement until/unless you actually receive a copy because few artists register and even fewer register after the infringement.
4. Your client can always say “public domain” because they saw it on the Internet. You as an attorney can’t unless you have ascertained that the image is truly in the public domain. He informed the group that if the image looks like it was shot in ’60s or more recently, one should assume that it is not in the public domain. Similarly he advised that just because the image looks old don’t assume it is in the public domain BUT a client unschooled in the law almost always says this to the photographer keeping the artist at bey until a lawyer comes on the scene.
5. Always claim that since there was no copyright notice your client who is not a lawyer, “had no reason to know anything was wrong” and that “no malice was intended”.
6. Run a “risk assessment” formally advising your client that IF it elects to knowingly run photos without licenses and/or model releases, what the possible legal consequences could be. Most sophisticated clients will run the stuff anyhow well knowing that running the risk is very worthwhile. The odds of being caught AND paying a significant fee to a photographer are “remote”. This is the most important aspect of such representation – to simply advise your client of the risk of infringement and then they will do whatever in their judgment makes the most business sense. Often the result is copyright infringement with no penalty ever having to be paid.
This is just a snapshot of the things the lawyers who work for your clients tell them. All of the above is good advice when representing media companies, newspapers, magazines and consumer companies. You know, the people who steal from you.
This is Jack, I just want to add to this great blog piece by Ed, and say that knowing what the other side is thinking and how they approach an infringement issue is pure gold. This is like being in the other team’s huddle in a football game. The bottom line is don’t fall for these head fakes by those that infringe your work. Hire a good lawyer and go get ‘em.