We got a link today from Katrin Eismann, pointing us to David Walker’s article in PDN regarding a second photographer finding an infringement and allowing the infringing company to make a $10,000 charitable donation. Oh, this sounds warm and fuzzy, and feel good, but as photographers we’re being made fools of. This could be the beginning of a very dangerous trend. To top this bad trend with a cherry, other photographers get online and agree and then post the same old bad information about the remedies available to photographers whose work has been infringed. We see it every day on the Internet.
Note that the photographer not only got his unique image ripped off, the company inserted their product into the photo. And they get to tell the photographer how much they are willing to donate in his name to a charity of his choice!? As a policy this is so preposterous and illogical it is hard to believe that anyone can be so easily fooled. We promise more to come on this subject. Read the PDN article, and then read the replies. Our comments we posted to the PDN article appear below.
Reznicki Jack Says:
March 6th, 2013 at 8:42 am
Wow, the amount of bad information about copyright and photographer’s rights on the Internet is just staggering to me. Why do people want to put out info that is not only completely wrong, but harmful. @Allen says the penalty is “1x or 2x” or say even 3x stock fees or any fees. That’s 1000% wrong. That is pure fiction. There is no “formula”. The only “formula” written anywhere is the copyright law that states “up to $150,000 per infringement” plus lawyer fees, in some judgements. Every infringement case is uniquely different, case specific, so applying one blanket for everything doesn’t work.
If an image is properly registered, you are open to statutory damages, which in a case like this can run into 5 or 6 figures, especially with factors like stripping in a product. Ever case is case and fact specific, but a commercial use like this warrants more than a slap on the wrist, IMO. Statutory damages are there by law to discourage this type of action.
Donating $10K for this type of commercial infringement does not discourage stealing. It’s way cheap for an infringement. Yes, suing is expensive, but the settlements are high enough to make it more than worthwhile in many cases and are in place for a reason. Rolling over with a settlement like this, in my opinion is harmful in cheapening our photos. It underminds the purpose of copyright. Better he collected $25K or more personally, then donate $10K or whatever he wanted himself, so HE, rather than the infringer, could take the tax deduction to a worthwhile charity. Letting the infringer dictate all this and take the tax advantage is amazing to me. It’s like a car thief dictating how long he should be in jail when he’s caught.
Also, with regards to social media TOSs. They, the sites, need to have some license from the copyright holders (the photographers) in order to have the images on their servers. The problem becomes when the corporate lawyers then over reach with rights in their language for more than they need. But the TOS does not give third parties a free hand to use images they see on social media.
Sorry for the length of this, but this “make a charity donation” to me is so wrong. It sounds good and is very “feel good” but is so harmful in the long run establishing yet another cut in the true value of our work. He could have collected more and made his own personal contribution.
Edward C. Greenberg Says:
March 6th, 2013 at 12:49 pm
Obviously I second everything Jack Reznicki says above. “Settlement” approaches like these keep Mr. Reznicki and I busy giving seminars, lectures and writing books and columns. We guess that photographers who may be entitled to tens of thousands of dollars (or more) simply are so rich that neither they, their spouses or children need the money.
Imagine a carpenter, plumber, architect, accountant or landscaper letting a non-paying dead beat customer to make a charitable donation (receive the tax deduction) in lieu of paying for services rendered and/or materials supplied? Doesn’t happen because those people are business people who run their businesses like businesses. The thought would never occur to them nor would their customers be so dumb as to propose it.
Only photographers who have constitutional rights to their intellectual property give up those rights to those who (typically) intentionally steal from them. As we have said and written countless times, these thieves KNOW that photographers are risk averse, do not know their rights, often act like sheep and are prone to seemingly warm and fuzzy “dispute resolutions”. This process hastens the extinction of the profession, encourages theft and won’t substitute for a real check owed to your landlord or for your kid’s school tuition.
Photographers are being duped yet again and many of you come away with a warm feeling in the process. The lawyers, your clients and the ad agencies on the other side laugh at you and do high fives every time one of these “settlements” comes to pass. The more publicity the better for the infringing company. You just can’t make it up. Yet another reason why jurors who have regular jobs or businesses are baffled at the manner in which many photographers “do business”.
Edward C. Greenberg Says:
March 6th, 2013 at 1:00 pm
I just received an e mail from one of my art buyer clients. He/she works for a large agency. I have permission to use his/her quote:
Dear Ed: I remembered your article on the concept of “duping delight” – the joy of tricking people when seeing these charity cases. Ad agencies exist and thrive when we dupe, trick, mislead or induce people to do things or buy stuff they would not otherwise do or buy. Photographers actively participate in that process and know that we are in essence, in the deception business. That is why we are so delighted when we succeed in ‘duping them’”. I fully get the concept and am going to miss it when I retire”.
Draw your own conclusions.