There are times where instead of a photographer finding an infringement, a photographer (gasps) finds out that the shoe is on the other foot and OMG, you’ve infringed on someone’s work! It happens. Sometimes, it’s true and sometimes it’s not true.

If you are accused of appropriating, infringing, stealing, copying or misusing the work of another – whether the claim is credible or pure nonsense – do not respond. See an attorney familiar with these matters. If you admit to “anything” your attorney starts at best, from behind the 8-ball. Admit nothing. Deny nothing. Do not comment or respond. Please, please see a competent lawyer who is well versed in responding to such claims without making matters worse.

Do not get emotionally involved with the allegations made against you to the point that you ignore logic, good business practices and lose control via a spontaneous reaction directed at your accuser.  If you need to vent, yell at your lawyer. Lawyers who are copyright trolls or similar rely on your lack of control and hope that you will make their case for them all by yourself. Adopt the “library rule” – no talking!

For anyone who has ever watched television or have even been arrested (we make no judgements but maybe we really don’t know the real you) you have heard the following “Miranda Warnings”. You probably know the following by heart, due to it being imprinted into everyone’s conscious and subconscious from any police, lawyer, or legal TV show.

“You have the right to remain silent and refuse to answer questions. Anything you say may be used against you in a court of law. You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future.”  

The law mandates that someone arrested for a crime receive such a warning. Those who ignore the “suggestion” that they not speak often regret not keeping quiet while spending time in prison.  While Miranda Rights apply to criminal cases, we are amazed at how many photographers, model agencies, publishers, infringers and the like openly admit to infringing on registered works which won’t likely send them to Sing Sing but may be just as stupid. The admissions come in the forms of e mails, telephone calls, notes on invoices. Clearly the admissions of guilt do not come after consultation with a competent lawyer.

An oral or especially, written admission of infringement “with an explanation” should never be issued by anyone other than an attorney. We have had doctors, accountants and other well heeled professionals admits to infringing uses by letter, e mail, apology note and phone call, none of which were sent with any attorney’s blessing. They decided it was a nice thing to do. Then they later find out it wasn’t such a nice thing.

An admission “against one’s own interest” is difficult to impossible for judges and juries to ignore once heard. It is a bell that can not be unrung. Silence on the other hand, a non-response indicates nothing. A lawyer’s letter is the appropriate and safest response whether you are completely innocent or not.

Ed’s office has had many cases where one photographer/illustrator has clearly stolen, copied, infringed or appropriated a pre-existing registered work.  Some of the photographers/illustrators who have received such letters effectively copped to infringement (orally and/or in writing) before even consulting with an attorney – which Ed’s letters specifically advise them to do.  Such admissions made AFTER a warning to seek counsel, serve as well… great evidence.  It is the virtual equivalent of any cliché TV show where the real killer stands up in court and suddenly tells the judge and jury “I did it! I killed him”!

That doesn’t happen in real courtrooms very often.  Written and oral admissions of guilt made without consulting counsel in copyright cases on the other hand, are not uncommon. Refrain at all costs from admitting anything or even contacting the lawyer or artist who contacted you. As they say in Spanish, “Manten tu boca cerrada”(keep your mouth closed). Or as your mom used to tell you, “keep your hands to yourself”. Same idea.

“Speak when you are angry and you will make the best speech you will ever regret.”
― Ambrose Bierce