Yet again, we wouldn’t believe it, other than the fact we do believe it because it has happened before. Once more a photographer who apparently had his work infringed and thinks that having the infringer make a small charitable donation rather than pursue his rights in court is a good idea. Yeah, good (actually great) for the infringer, but not for the photographer in our opinion. We have no personal knowledge of the facts but it clearly appears that work created by a photographer was “appropriated”, infringed and stolen, with the guilty party being rewarded. The infringer/thief being the website Buzzfeed, gets a tax deduction, good press, avoids paying the creator’s legal fees as well as a judgment in the amount of many thousands of dollars if the image had been properly registered and the matter pursued to any extent.
Buzzfeed also greatly benefitted by getting many more hits. Buzzfeed makes money on hits, and this is good “buzz” for them. It’s a win, win, win, win for them. Infringe the work of the right photographer, your hand doesn’t get slapped taking from the cookie jar, and ye shall be richly rewarded.
If, as it appears, Buzzfeed used the work without the creator’s license, permission or consent, it is liable under Federal Copyright Law. If the creator prevails he may be entitled to a substantial money judgment, an injunction against Buzzfeed’s further use and payment of attorneys’ fees incurred by the photographer. If nothing else it gives the photographer and his/her lawyer the leverage needed for a real settlement that benefits the photographer, not the infringer.
Many infringers, photo thieves, know all too well that photographers are risk averse and want to “feel good”. So what does a photographer whose work has been ripped off get? A “feelgood”, a“buzz”? We hope his landlord, Exxon station and grocery store takes “feelgoods” and “buzzes” in lieu of cash. Spouses and children can’t spend “buzzes” for diapers or tuition. The infringer is emboldened to do the same thing again – because it pays to do so – only the next time it will be your image that’s stolen.
It is very discouraging to spend so much of our time educating photographers and illustrators on their Constitutional Rights and substantial remedies just see to someone throw them away like a used coffee cup. A company like Buzzfeed, with many employees, didn’t have to spend even a dime in lawyer fees for this, probably took it out of their petty cash budget. In our opinion, $500 is a joke.
Recover what the law allows and then you can make your own charitable contribution, in your own name, and taken the tax deduction for the benefit of yourself and your family.
Photographers who can afford to do so frequently donate all or a portion of recoveries from courts to charities. One of Ed’s clients has contributed about $125,000, the sums collected from infringements over the last two years, to charities, all from infringement actions brought by him/her which settled prior to trial.
Read the Buzzfeed story here on PetaPixal.com or here on the Huffington Post.
A lot of people have been talking about this as a “feel good” story. This type of story does not make us feel so good. Each one serves to eat away at the ability of photographers to earn a living.
#1 by Matt Timmons on September 18, 2013 - 3:07 am
In my opinion, I believe there is a definite psychological hurdle for most anyone, especially artists, to overcome in order to initiate a lawsuit. People in what I’ll refer to as, “the routine business of lawsuits”, especially in places like New York, are accustomed to lawsuits being just another viable revenue stream. It’s no big deal. They’re always suing or being sued by someone but they still shake hands at the cocktail parties and ask how the wife is. For the rest of America between the two coasts however, a lawsuit is only something that is done as a last resort, analogous to committing an act of violence. Most people are extremely uncomfortable with the thought of pursuing retribution through the court system. As if doing so is an act of inhumanity that will forever change them from a friendly photographer to a greedy soul who’s just out to bankrupt a good ol’ hard-working American business and put all their employees out on the street just for making a simple mistake. I know I used to think this way. And I’ve allowed myself to be infringed upon by a news publication as well as commercial businesses. It’s difficult- I mean mentally and emotionally difficult to pick up the phone and call an attorney’s office. Photographer’s think that they are going to be sucked into some meat grinder and spit out the other end, only to end up owing insurmountable lawyer fees and receiving nothing from the infringer while the local newspaper prints their picture on the front page with the headline, “Evil, Greedy Son of a Bitch”. Most anyone would rather find any other way to satisfy their infringer’s debt than go to court and feel like they’re taking on Mike Tyson while wearing a blindfold.
In order to help stop this trend of photographers avoiding their rightful use of the court system, what you guys could try to do is perhaps work in some material that puts a more actual routine perspective of lawsuit protocol and methodology into the minds of photographers. I’m sure the first time Jack decided to sue someone he probably had a few butterflies in his stomach. Who wouldn’t? And 99% of the photographers in America probably don’t even know a lawyer. They have to use the Yellow Pages, and everyone knows that’s a total crapshoot at best. Perhaps use some examples like “How Joe Photographer went about suing Giant Company for blatantly infringing his work.” I’m sure photographers don’t even know that most every red-handed infringer has settled out of court. Hell, I know most photographers don’t even have the money to pay a lawyer to draft a single cease and desist letter much less employ them for a full-blown lawsuit. Perhaps if attorneys take infringement cases for a commission of the settlement rather than up-front billing, then photographers might feel more comfortable employing attorneys. If that is an option, then maybe you could do some articles on how to take that approach.
At the end of the day, I think that the lack of photographers’ willingness to exercise their constitutional right to pursue restitution is not because they want to “feel good” about settling for charity. I mean come on, we’re talking about the human race here, no one does any favors because they would rather “feel good”. It’s because they don’t know what they’re getting into. It’s because they are too afraid of the daunting and seemingly impossible task of winning a lawsuit against powerful companies that may ultimately suck the life out of them, leaving them without a settlement and in debt to their attorney forever. Instead, if they knew that a lawsuit was as easy as say, Lasik surgery, maybe more photographers would do it. Until I had Lasik, I was scared to death of it. I practically had a heart attack when they lowered me back in the chair. But 15 seconds later when they raised me back up and I had perfect vision again for the first time in 25 years, I’ve been an advocate for how easy and painless it is ever since. If it turns out that lawsuits are less daunting than photographer’s think it is and more of them “see the light” so to speak, then they’ll start spreading the word and enable more photographers to do the same- and possibly get these big infringers to start backing off a bit.
#2 by Arthur Applegate on September 19, 2013 - 2:31 pm
What she said. The prospect of being bogged down in court proceedings, and the expense of lawyers discourages me, I am not so rich that I can afford to have a standing for me and not get an award out of it. Perhaps if lawyers handled it like accident cases, there would be more business for them.
#3 by Edward C. Greenberg on September 19, 2013 - 7:21 pm
Good points and here’s just a start and there will be more to come:
Consulting an attorney to determine whether you are entitled to compensation does not mean that you are doomed to years of litigation, sleepless nights and mounds of attorneys’ bills. If such were the case there would be few if any lawyers.
Fully 95%+ of all claims are resolved without resort to litigation or trial. The notion that merely talking with a lawyer traps you into a Kafkaesque world without clocks, filled with evil judges and thieving lawyers is more than a tad off the charts most of the time. Are there lawsuit horror stories? Sure. Are there clients who have made more money via litigation than through their licensing revenues? You betcha. Most settlement agreements are confidential. They are confidential because someone is typically paying a substantial amount of money to someone who is receiving that very same money. We have had clients who retired on settlements, paid 100% of the kids’ college tuition, bought a new car or a new home. Many simply recovered more modest yet substantial sums. In real life, some clients even lose their respective cases for reasons too numerous to mention.
Plumbers, carpenters, landscapers, architects, doctors, dentists, ad agencies, PR firms and so on seem to have little if any reticence to consult legal counsel when owed money. In America, civilized people use the court system which does not necessarily mean they actually appear within the confines of the local courthouse. Less than a tiny percentage of 1% of ALL cases filed of all types wind up in multi year, super expensive draining, life sucking litigations. In real life, most visual artists whose work has been registered and appropriated and/or models whose images have been used without their consent, wind up being compensated without ever having to wait for a jury’s decision. By the way juries LOVE photographers and models who have been forced to sue well heeled corporations. The bigger the corporation the happier the artist’s lawyer is.
If such were not the case I would not be going into my 35th year of a practice centered on the legal rights of artists, photographers, models and designers. Artists are indeed fearful of the legal process. They tend to be risk averse and those who steal from them know that and act accordingly. Making a legal claim for something justly due you ought not be considered akin to sucking on an iced tropical drink in St. Kitts during January. It may however, be far, far more rewarding.
Those of you who attend our seminars know that we address head on issues like “Hiring a Lawyer” and how to proceed when ripped off. Funny that photographers have no reluctance in calling the cops when their car is stolen from the driveway. This despite the fact that the odds of recovery are slim, the paperwork onerous, the cops often disinterested, the insurance company uncaring, etc. You do what needs to be done when you are ripped off.
If you prefer to be a victim, that is your choice. Many an artist sits and bitches about the bad hand dealt them. Funny however that few photographers can seem to convince their respective spouses that doing nothing in the face of theft is the best option.
#4 by Edward C. Greenberg on September 19, 2013 - 7:53 pm
Further to the above remarks…
I detected a sort of “anti-NYC” tone. There is at least one courthouse in just about every county in every state in America. There are Federal Courts covering every hamlet in every state, territory and possession of the United States. There are military courts and a veritable buffet of companies both for profit and non-profit who exist for the purposes of dispute resolution. The courts are spread out throughout this land roughly in proportion to the amount of cases they hear.
I have have represented clients in LA, NO, Miami, Franklinton, Louisiana Santa Barbara, Tampa, Dallas, Wisconsin, and dozens of locales with populations smaller than the amount of people who live on my block in NYC. I have been consulted and/or worked with attorneys who represent artists, photographers and models in some 30+ states. Litigation is not a bi-coastal phenomena.
Folks in small and medium towns across America generally don’t enjoy being ripped off. At Photoshop World in Las Vegas last week, we answered questions from residents of nearly every state in the Union and from towns too small to be on a map. The notion that only big city folk are inclined to sue certainly does not comport with my experience.
My e mail list of current and former clients includes every state in the United States, the UK, New Zealand, Brazil, Mexico, Costa Rica, Poland and most of the countries comprising the Pacific Rim. It is our experience that non-US Citizens don’t like getting ripped off any more than most Gothamites.
Photographers who work in small towns are typically ripped off by companies who reside “out of town” and thus there is little reticence on the part of the victim to seek the justice the law provides via carefully crafted copyright laws that go back to the 1700’s.
#5 by Matt Timmons on September 20, 2013 - 1:25 am
Ed, you’re not hearing any “anti-NYC” from me- I’m a die hard fan of our fair city. I eat the food, support the green projects, and share these streets with everyone proudly. I even ran into you in the subway a couple of years back. And even thought the Yankees aren’t going to make it into the post season this year, which I’m frustrated by, I still don’t leave the house without my Yankees hat. I just wanted to illustrate that lawsuits are a part of everyday business in NYC and that it doesn’t even mean anything personal. It’s just a revenue stream. The office buildings behind the Flatiron building concerned about the placement of the structure blocking the view of their office building, filed a lawsuit on the grounds that the Flatiron was causing unusual wind patterns resulting in reduction of their property value. The suit failed, but they had to try right? Just business. Nope Ed, I’m a Metro card carrying photographer, slugging it out in this crowded industry getting whatever doors slammed in my face like everyone else. But I’m back to it every day. Probably be a client of yours before too long with the way these companies see to it that stealing makes them more money than licensing.
#6 by Edward C. Greenberg on September 20, 2013 - 2:09 pm
Dear Arthur: Many attorneys accept copyright infringement cases on a contingency or part contingency basis. That means that the lawyer gets paid only if the case settles and/or wins and/or is awarded legal fees by the Federal Court. I don’t know why you would assume or guess otherwise without inquiring or interviewing attorneys who might be eager to represent you.
We have done many, many such cases on behalf of illustrators, photographers and models on a fee basis similar to those used by personal injury, collection lawyers, etc. Specifically – a percentage of sums recovered, if any.
Conventional wisdom is that lawyers are always expensive and serve to decrease your net worth. As we like to say, “Conventional Wisdom is neither”.