There are many confusing copyright items on the Internet these days. Some offer to “help” photographers, like the Creative Commons (CC). Our plain English interpretation of which can be simplified as: take your copyright, let anyone use the work, and maybe we will magnanimously give you pennies in return. They keep the dollars, if any.
They are a “non-profit” organization but that’s a tax designation, not necessarily a business philosophy. Do not automatically perceive them as somehow benevolent. “Non-profits” generate tons of cash that are used to pay big salaries and perks. Rather recall Burt Lancaster as the huckster in the movie The Rainmaker, or as the fake evangelist in Elmer Gantry or almost any role played by George Clooney. They sound so sweet, smooth, so logical, as they pat you on the back with one hand and pick your pocket with the other. Why, they’re doing you a big favor taking your money (copyright) and giving it away. Note that there’s nothing illegal about it. They are quite open in what they are offering to do “for you”.
But their slick sales pitch can be confusing to artists. And photographers and artists are easy marks for these sales pitches, because they hate and are scared to death to think that they might miss out on selling or licensing their work. Even if “selling” their work brings in a loss rather than profit. After all a sale is a sale, even if it costs you money. That attitude is the blood that sharks smell in the water from miles away.
We think that most artists are missing a gene in their DNA that prevents them from saying “no” to a bad deal or thinking that someone may actually have bad intentions when dealing with them and their work. People missing that gene seem to always find those that possess the “steal you blind with a smile on their face” gene.
Which brings us to this quote, which was brought to our attention by a reader. It was posted on another website, that had some good information overall regarding what to do when you’re work is infringed but also contained this stinker: “When you don’t want to alienate the infringer (the infringer is a potential client and/or appears to be an innocent infringer)” .
When you don’t want to alienate the infringer??!!?? Potential client???!!??
Trust us, an infringer is not someone you want to do business with at any point. Why would you? Think about it. Photographers and artists are so scared to “leave money on the table” that they are willing to try and do business with a thief. Not a good business plan unless you like to pay bankruptcy lawyers. But we hear of photographers engaging in this suicidal activity over and over. Remember gang they do have laws against this stuff!
This is how Jack’s views this utterly illogical concept-
So someone breaks into my house and steals my stereo. I hear the thief, and go downstairs. Do I:
A) Ask myself if I really want to offend him, because maybe he might want to hire me to photograph stuff? Or
B) Ask him to please, pretty please, place my name is on the side of the stereo so at least everyone who sees it knows it’s my stereo. Maybe they want to hire me. (Or steal more stuff. Advertising works). Or
C) Do nothing because, it’s just too much trouble. It’s only a top of the line stereo. I’ll hock the car and buy another one. Or
D) Decide that I’d never want to see this scumbucket ever again breathing, as he broke into my house, stole from me, and I now have a bat in my hands that will make a pleasant sound to my ears as I play “wack-a-mole” with his head.
9 out of 10 photographers will pick A, B, or C with most picking “A”. Don’t laugh. It is nothing short of pathetic. Jack picks D. “D” paid for both his country house and ecologically correct Prius. Those that pick A, B, or C are both consenting to work for less than minimum wage while assisting third parties to live better than they deserve.
Why do photographers try to placate and “not alienate” or antagonize someone who steals from them? There are some rare exceptions – like if you live in a small town and it’s really someone locally who really doesn’t understand copyright. In that case, you have to educate them, but in a manner somewhat more gentle than with a Louisville Slugger. But some corporate scumbuckets, who do know better, get an attitude when you call and they do deserve the bat. Understand that a baseball bat is just a metaphor Jack likes to use. To him it represents calling Ed in and having him handle the infringer. In reality, if given a choice, Jack thinks the infringers would pick the bat over Ed, but that’s Jack’s opinion. You are best off selecting your own bat (lawyer) and keeping him/her in the “bat rack” a/k/a speed dial. Use as directed when the appropriate occasion presents itself.
Jack and Ed
#1 by A. Garfield on July 6, 2010 - 2:19 pm
While I appreciate your occasional humor about copyright infringement, the truth is not always as you tell it. There are quite a few photographers that register their images timely and have licenses prepared to protect their works.
Most attorneys do not take copyright infringement cases on contingency even when the images are registered prior to infringements. With the cost of filing a legal proceeding in federal court, most photographers are on their own. Today photographers not only need to learn the business of photography, they need to learn how to enforce their rights legally in court.
#2 by admin on July 6, 2010 - 4:54 pm
Thanks for your comments. We always appreciate them.
We just question where you get your data regarding how many are “quite a few photographers” who (register)?
While we’d love you to be right and have your optimism about this, our personal research indicates anything but.
We have each been in the business well over 30 years. We base our estimates regarding the percentage of photographers who register on:
– the hundreds of lectures by Jack and many by Ed to APA groups, PPA groups, Photoshop World Seminars, Photo Expo and dozens of other locations throughout the country where we poll the audience as to who/how many/how often/whether members register their work. By a show of hands as to how many photographers/audience members have ever registered anything. 3% to 5% is the typical result. Incidentally, geography seems to play no role in who registers and who doesn’t. Winning an infringement case or settling one does affect how often someone registers. Those that have cashed a check as a result, register everything thereafter.
– our readership/circulation via our book, blog, monthly column for Photoshop User Magazine and Ed’s private e-mail list is well over 100,000 per month. They write, they call and they speak to one or both of us. 3 – 5% is about the number of photographers who register anything. 1% – maybe – register everything they shoot like they should.
– calls and e-mails made to Ed’s office by people who are by the very fact they are communicating with a lawyer, motivated and atypical;
This has remained fairly consistent (a minor uptick because of online registration may occur) – over the years. When asked how many register everything on an ongoing basis sometimes there are no hands up in a room of several hundred. Were it otherwise Ed would be rich. Solid defenses to infringements of registered works are few and far between. Attorneys’ fees are awarded to the victors.
Ed was in Santa Monica in April at APA/LA 3 -5% of those people motivated enough to come out to a lecture on copyright have registered at least “once”. Jack lectures dozens of times per year – same stat. Jack is a paid endorser for products and is on the road even more. Anecdotally – 3 -5% of those he meets register.
We have both taught photo business practices at The School of Visual Arts, Masters Program in NYC. We have had student/professors, student/studio owners and twenty-year shooters who are taking a business/registration course. Again, 3 -5 % among this “elite” group register.
The filing fee to file a federal copyright case in court is only $350. Attorneys frequently take such cases on contingency if there is a registration (which costs $35) and the case is of some size. Ed takes cases where a registration has to be made to bring the case. Sometimes lawyers reject cases because they are in reality, not as big as the client thinks they are.
We know it’s still a big problem. Like we said, we’d love to see more register and defend, but that’s not what we see from
our experiences. We want to be wrong. So can you elaborate on your estimates?
We’re puzzled as to your comment, “photographers are on their own”. Just
how would photographers enforce their rights in Federal court without a
lawyer? Again, Jack has collected several times for infringements and Ed has
collected numerous times for his clients over the last 33 years. He has anywhere from 5 – 15 active cases at any one time and he’s just one copyright lawyer out of several thousand nationwide. So we are speaking based on real experiences, not hypothetical ones.
Again, we appreciate the comments. We love anything that furthers discussion. We welcome those who can show us if, as, and how we are going wrong.
Ed and Jack
#3 by A. Garfield on July 9, 2010 - 12:15 pm
You are not going wrong and such seminars are necessary, helpful and should continue.
There are “quite a few” that do register and “quite a lot” that do not register.
The “quite a few photographers that register their images” that I speak of are the professional photographers that I personally know and it is an ongoing process and discussion often had among ourselves. These are professionals that must learn how to enforce remedies available to them when infringements occur when as you state “sometimes lawyers reject cases because they are in reality, not as big as the client thinks they are.” There needs to be a system in the federal courts for those infringements that photographers can handle such as these. What happens in reality, is that you let one infringed image pass, then there’s another “one” infringed image by someone else, and this saga continues to occur with one more infringement by someone else. These “ones” add up considerably and the photographer loses revenue. And all of these “ones” have been registered with the Copyright Office prior to any infringement. The playing field must be leveled because infringers most often times know the costs involved in bringing a suit in federal court and often times assume that a small photographer will not be able to fight for his rights economically for the “one” image that is infringed say perhaps just on someone’s website. How many times must the small infringements be allowed to escape? A letter mailed absent a stamp comes right back to you for payment…
A.Garfield
#4 by admin on July 9, 2010 - 1:09 pm
The notion of having in effect a type of “Small Claims Court” in the Federal Court System for copyright infringement cases has been bouncing around for years. We think it has merit and would (while far from perfect) go a long way towards resolving and preventing a considerable amount of infringing activity. Fact is that as of today such a “court” does not exist so until things change we deal with “Business Reality – 2010”
One should never, never just let an infringement “go” as you reference. That does not necessarily mean that you sue over every infringement. It does mean that the creator at least issues a DMCA take down notice – (free of charge) See our article in this months’ Photoshop User Magazine, which supplies a buffet of reasons and a sample form for your use. The form is there and you don’t need a lawyer to use it. No excuses my friend.
Issuing effective notices and the proper methods for billing and collecting are laid out in our book, articles, lectures and blog pieces. Just like the USPS there is no, repeat no, reason to let anything “go”.
Thanks again for your comments but we saw nothing in them which undercuts our 3 – 5% estimate on registrations. If your circle of comrades exceeds that rate then kudos to all of you. Understand however, that you are an atypical group. Toast yourselves in the knowledge that you are ahead of the curve.
Ed & Jack
#5 by A. Garfield on July 9, 2010 - 3:24 pm
Would you be so kind as to give me the link to your article in Photoshop User Magazine. Thank you.
#6 by Mike Maginot on September 16, 2011 - 2:57 pm
I was very impressed with your Photoshop World presentation. Upon returning to school this week, I was given a handout in class called Copyright, Public Domain, and Creative Commons. More than two pages were devoted to Creative Commons while Copyright was given little more than a page of explaination. We also watched a few of the Creative Common videos which felt more political than informative. I asked the teacher if the folks at CC could back up their various levels of giving up your rights with any kind of legal recourse, she wasn’t sure. Based on the CC FAQ and your article, it looks like they are offering people a vapor wear smoke screen. Anyone who wants to give their rights away can do it using the existing system, correct? CC is offering an oversimplified alternative based on concepts of sharing and trust. This may be fine for the classroom, but I don’t think it works in the real world. Do you know of any photographer, filmmaker, or artist who recieved anything more than the satisfaction of knowing that CC took away the license from someone who broke the “rules”?
#7 by Jack and Ed on September 17, 2011 - 1:23 am
Thanks for the compliment. We do it all for “yuse”. With respect to the Creative Commons, we will do an entire piece on it shortly. Suffice to say for now, we are not fans.
Ed & Jack
#8 by Mike Maginot on September 17, 2011 - 10:51 am
This was one of the videos shown in our class: http://www.youtube.com/watch?v=io3BrAQl3so. I’d like to read your reactions to CC’s slick promotional propaganda and its appeal for “free culture”. Know of any good videos about Copyright available online?
#9 by Wayne Schenk on September 18, 2011 - 11:59 am
After watching the video short which Mike so kindly included in has post, I have the impression that the Creative Commons folks are just setting up another Copyright Grab, like Jack and Ed have discussed before.