An attorney gave advice recently on another blog regarding protecting your photography. As a fellow lawyer, Ed can’t really comment on it in the way he would like. Jack, who is just a photographer, can.
One of the points given was that photographers can create their own “cease and desist” or “demand” letter without the use of an attorney.

The stated suggestion/advice:  “When you don’t want to alienate the infringer (the infringer is a potential client and/or appears to be an innocent infringer), you may want to contact the infringer to explain that the use is not authorized and either request payment of an appropriate license fee, a photo credit with a link to your website (as discussed above), or that the infringer cease use of the image.”

I (Jack) have to say that, I find that really horrible advice.  The LAST people in the world, I’d want as a client is someone who has infringed ( see also “stolen”) my work! That is not a “client”. It’s a thief and deadbeat that will magnanimously drive you to bankruptcy court in their Mercedes. What sweethearts!

When I, “explain that the use is not authorized” and “request payment”, is it proper to send cookies and crumpets with my request? Rather than “request” a payment, I’d rather my lawyer send what’s known in legal circles as a “demand letter”. I think demand is more appropriate when someone steals my work.

An honest mistake by a reputable client as to the term of use for a given image can and will be resolved by a simple phone call. Sometimes a soft phone call for an existing client with a track record with you is the right way to go. But either failing with that, or dealing with someone with whom you have no prior relationship, sending a demand letter written and coming from a lawyer is then the right way to go. Doing it yourself makes as much sense as having a lawyer do a photo shoot. Trust me. I’ve seen Ed take photographs. You don’t want to go there.

That attitude and notion that being nice because they “might” have future work, has really hurt photographers and freelancers right in the pocket book over the years.  “Requesting” payment from an infringer is laughable and lawyers who represent infringers, treat such requests as jokes – if they address them at all. I already know the answer I’ll get from their lawyers or even the client themselves. I call it the “Whimpy” defense – as in Popeye cartoons of, “I’ll gladly pay you Tuesday for a hamburger today”.  I had an infringer offer “future work” in order to pay less for their current infringement. Sorry, I didn’t fall off a turnip truck yesterday. I said, “Pay me my full amount now, and I’ll give you a very big discount on the future work”. Right. Do you think they ever called? Nope, but I got my big check upfront.

Folks- “future work” is like the tooth fairy or the pot of gold at the end of the rainbow- it’s just another Fairy Tale.  Not unlike the absurd idea of 3X or even 10X your “regular” fee as a penalty – a flat out stupid concept that should have died and been buried when FDR was in office.  How can you estimate your “penalty” when you have no written representation of all usages that have been made nor an assessment from a competent copyright lawyer as to what the infringement could be worth?   The value in court and thus for settlement purposes may exceed 50X “your fee”.

I had an infringement years ago, where if Ed asked for 3X my “regular” fee, I would have fired him on the spot. Luckily for me, Ed don’t play dat tune. He is a virtuoso, as any good lawyer should be, at writing a demand letter. His should be framed as a true work of art.

A demand letter sets the tone for your whole approach and maybe even a litigation down the line.  If it comes from a photographer who avoids hiring a professional, the recipient usually knows the photographer is easy pickin’s.  A badly written demand letter, from a photographer or even a lawyer inexperienced in such matters, can do lasting damage to the case if not flat out ignored.  (Why do photographers think that a real estate lawyer or a tax lawyer who may have never actually tried a copyright case, would know Intellectual Property laws?)  Photographers writing their own legal demand letters?  A Photographer vs. a Lawyer in a legal paperwork fight?  Vegas won’t take action on that absurdity.

I’ve sued for infringement, with Ed representing me, and frankly, there is nothing like a good old-fashioned Federal lawsuit to get someone to pay close attention to you. A few weeks ago I just collected a large sum from someone who offered a whole $100 for a prior infringement and future license of a registered work. I collected far, far more. I wish I could say how much more, but that settlement came with a non-disclosure clause. My lips are sealed. But I can say it was for more than 3x fee. A heck of a lot more. A whole lot heck more.

I’ve also collected for a web infringement, really big time, from someone who was taking in a million bucks a year and claimed we’d bankrupt them if we sued. Well, in deposition, we found out that was not really true – imagine an infringer with the temerity to actually lie too?!?

The nice thing about having your paperwork and registration in order is that when an infringement comes up, you can turn it over to a lawyer (Ed in my cases).  Ed then does the work, he’s the professional, and I don’t have to get aggravated.  The Copyright Law has an assortment of specific remedies which photographers can use to get money, statutory damages and yes, even lawyer’s fees.

Photographers are upset when clients don’t use a professional photographer, but then why are photographers scared many times to use a professional lawyer to handle legal issues?
Should we also act as our own doctors when surgery is in order?
Although I’ve met some people I swear did their own lobotomy. No mere doctor could have made them that….well, lobotomized. I’m trying to be polite here and not say “stupid”.

Register all of your work.  That you can do yourself. If something’s goes wrong, then get the right person to fix it. And for goodness sake don’t think you can turn an infringer into a knight in shining armor.
You’d have better luck turning lead into gold.
Or getting paid for that hamburger on Tuesday.

Jack Reznicki