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.
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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.
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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”.
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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.
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#1 by Edward C. Greenberg on March 7, 2013 - 6:51 pm
In answer to a question received off line –
As a matter of fact I have incorporated an agreement by my client to make a charitable donation in order to close a deal when when trying to settle a case. On several occasions I have said to a judge, lawyer or magistrate something like, “My client will accept X$ to settle the case and will agree in the settlement agreement to donate Y$ to a (specific) charity” It helps to close seemingly stuck negotiations. My client gets the tax benefit for accepting just a few dollars less on the gross payment. Judges in particular love the approach as it demonstrates that neither my client nor his attorney are greedy or looking to run up attorneys fees on a case that should and can be settled.
Charity paid by the thief who receives a tax and PR benefit by doing so, rather than paying fair compensation to an artist whose work has been stolen is ludicrous. If a winning litigant wants to donate all or a portion of the cash received via judgement, nothing prevents him/her from doing so. I have had many clients who have done just that after settling or prevailing on a case. Their choice, their charity, their deduction in whatever amount they deem appropriate.
On one occasion, my very well heeled client was suffering from a terminal disease. He was clearly due X$ and offered the deadbeat defendant the chance to settle the case by paying my fee and agreeing to pay X$ which my client would donate to the organization fighting the disease that eventually killed him. Such a deal would have given my client a tax deduction in an amount no where near the sum of money he was due. The defendant told my client to “go ye forth and multiply” as such offer proved that the case was bogus. My guy won, received and donated what amounted to double his demand for settlement. Offers of settlement are not supposed to be admissible at trial but the other attorney was asleep a the switch and the judge who did know about it “accidentally forgot”. The jury got the message and punished the defendant – big time.
Again, we urge those of you who think this is a great idea to ask your friends who are engaged in professions and businesses other than photography what they think. Watch their faces contort when you tell them that someone who could recover many thousands of dollars because their work was stolen, let the thief make a donation to a charity in the thief’s name instead.
#2 by Matt Timmons on March 7, 2013 - 7:12 pm
I wonder if this works for stealing photographer’s equipment. If they won’t pursue a $150,000 photo, then they sure as hell won’t pursue $10,000 equipment bag. But if they do, then the thief can donate $100 bucks to their favorite charity, case will be dropped and all is well. Thief wins, charity wins.
Sounds about right.
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