The usual licensing fee for the infringed photo is the measure of damages in an infringement case.<\/em><\/p>\nFACT: \u00a0Maybe, sometimes, it depends on the case but very rarely in statutory damages situations is this true.\u00a0 Here is a recent example with the facts changed ever so slightly:<\/p>\n
A Copyright registered, generic lifestyle photo of 25 year old male is ripped off by an organization\/company like Planned Parenthood, Trojan Condoms or Big Pharma which manufactures birth control pills.\u00a0Offending use is in print ads and\/or packaging.<\/p>\n
Photographer is a part time Pentecostal Minister\/Catholic Priest\/Deacon etc. who under no circumstances <\/strong>would have licensed the image for this purpose for many reasons.\u00a0 The subject in the photo is a seminary student who signed a model release permitting “editorial use only”. Note that licensing the image could get the photographer sued by the model.<\/p>\nInfringer’s lawyer says to judge, “Yes we used it because we were on deadline and an intern got it for us – our bad. But photographer licensed this picture only one time in the past for a fee of $100 to the local Podunk News, which used the image for an article entitled “Increase in Hipsters Moving to Podunk from Brooklyn. We offered photographer three times $100 <\/em>or $300 to settle and we think that is fair”. The photographer\u2019s lawyer rolled his eyes until he heard the judge ask the infringer\u2019s attorney:<\/p>\n\u201cDid you really think that I would buy that kind of \u2018logic? Really??\u201d <\/em><\/p>\nThe court didn\u2019t buy it and neither should you.
\nStatutory damages, which can bring $30,000 – $150,000 plus attorneys fees, are available to photographers who register in a timely fashion for just these type situations.\u00a0The prior license fee to the local Podunk News, for a permitted and utterly dissimilar use is irrelevant under these circumstances.\u00a0Doesn\u2019t matter what the photographer previously licensed it for. Apples and oranges. The benefit of registration and statutory damages is that the court may punish the infringer based on the unique circumstances of every case.<\/p>\n
<\/p>\n
MYTH: If the image has no licensing history at all the amount of damages recoverable will be minimal.<\/em><\/p>\nFACT: \u00a0Photographer does a photo shoot of Elvis in the ’50s or Dylan in the early ’70s.\u00a0 Assume 100 images are created.\u00a0 Photographer elects to keep say 25 images “in the draw” and “off the market” with the intention of using them X years down the road when they will likely be more valuable. \u00a0Sometimes the photographer simply forgot about the images. Here\u2019s a not uncommon scenario: Photographer has assignment to shoot some unknown, up and coming musician\/rock group\/actor and the story is killed by the publication for some reason. Up and comer becomes iconic superstar in the following years. Infringer finds copies of such unpublished images and publishes the never before seen images without the knowledge or consent of photographer.\u00a0The fact that the image had “no licensing history” is utterly irrelevant to the issue of damages.\u00a0 Assume that Rolling Stone magazine or The Hard Rock hotel chain would have paid $100,000 to use these “lost” pix. Now that business opportunity, at that price, is lost forever owing to the use by the infringer.\u00a0The value of the images is actually increased by the fact that they had no licensing history, as they had never before been seen by the public.<\/em><\/p>\n <\/p>\n
\n<\/em>MYTH: \u00a0If a web designer sells the images to its client you must sue the web designer and the advertiser is off the hook.<\/em><\/p>\nFACT: \u00a0If a 17-year-old web designer creates and is paid to build a site for a local physician (or ie. a construction company), the photographer can sue the doctor, (or construction company) and\/or<\/em> web designer. Depending on the facts of each case, the client of the web designer may or may not have the ability to recover some money from the designer. The photographer’s claim is essentially unaffected in most cases. The end user is responsible for what they promote and publish. How<\/em> it got there may determine whether the end user has a claim against its third party \u201csupplier\u201d.<\/p>\n <\/p>\n
MYTH: Licensing fees for similar images is a relevant measure of damages.<\/em>
\nFACT: Sometimes this myth has some relevancy but usually not.\u00a0 If you have the definitive, iconic image of a celebrity say Bo Jackson which you have never provided to a stock agency then other<\/em> pictures of Bo Jackson that might be available from Getty or Corbis for $250 are likely not comparable.\u00a0 Typically infringers steal images that they cannot get from legitimate sources.<\/strong>\u00a0 We then pose the question, “If you could have licensed another comparable image at $250 why did you elect to steal the one you could not license<\/em>“?\u00a0 Such selection of a “non-available” image helps to prove willful infringement
\nBottom line A. register every image you shoot, always all of the time and B. consult with an attorney conversant in copyright law to determine what the nature and extent of your claim could be if litigated and then decide with counsel what course of action to take to get your money. Do not take advice on copyright cases from non-lawyers who have no legal training and have no experience in real courtrooms.<\/p>\n","protected":false},"excerpt":{"rendered":" While wrapping up and doing the final edits for our next book we came across several myths and mythconceptions which some photographers inexplicably hold dear.\u00a0Here are some of these misguided beliefs which we have followed with a “straightener”. MYTH: An award of statutory damages for copyright infringement must have some relationship to the […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1,3,100,15,4,21,20],"tags":[355,356,113],"class_list":["post-1295","post","type-post","status-publish","format-standard","hentry","category-copyright-info","category-copyright-registration","category-in-the-news","category-legal","category-releases","category-stock-photography","category-stuff-you-should-know","tag-infringment","tag-layer-fees","tag-licensing"],"_links":{"self":[{"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/posts\/1295","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1295"}],"version-history":[{"count":6,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/posts\/1295\/revisions"}],"predecessor-version":[{"id":1301,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/posts\/1295\/revisions\/1301"}],"wp:attachment":[{"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1295"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1295"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1295"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}