During these extraordinary times criminals and fraudsters have been arrested for selling fake cures, testing kits, and counterfeit\u00a0ineffective\u00a0personal protection equipment like masks and gowns.\u00a0 The photo industry is being confronted by a different brand of predators who while not putting lives at risk, are nevertheless seeking to take money from creatives’ pockets.<\/p>\n
It is plainly and painfully obvious than many small businesses are near extinction or have permanently\u00a0closed up already.\u00a0 Many of those businesses – often termed “mom and pop” – will not be coming back.\u00a0 Many and likely most businesses will survive\u00a0in one form or another and\/or will make filings for protection in Bankruptcy Courts. ie J. Crew, Neiman Marcus, JC Penny, etc.<\/p>\n
More and more frequently clients and ad agencies are claiming poverty and\/or that there are no funds to pay photographers, crew, models etc.\u00a0 On many occasions that may be true – at least at the time such representations are made. We\u2019re heard these excuses many times in pre-pandemic times, so some of us have developed an ear for divining what is fact and fiction. Often such explanations come under the technical legal term of “BS” from the Latin “SS” as sheep were more common in the old world than cattle were.<\/p>\n
If you have done assignment\u00a0work or licensed images to these companies claiming no funds, you are not without a remedy to recover the fees owed you, especially if you have timely copyright registered those works. As we\u2019re stated until we\u2019re \u201cblue in the face\u201d the registration of your copyright at the Copyright Office is critically important.<\/p>\n
The use of copyright registration to not let so called “good clients” delay payment is essential along with acting quickly and timely. You need to be pro-active in collecting outstanding invoices and payments.<\/p>\n
Your invoices should be in order, your work registered at the Copyright Office and then if your statements not paid promptly, you must act promptly. Delay and patience under the current climate are your worst enemies. After your original invoice is not paid, then you send one notice letter – not mentioning any economic conditions that you are suffering or that your client has alleged – containing a copy of the outstanding invoice and requesting payment within ten days lest the matter be turned over to your attorney. That’s it. Do no more. No phone calls. No social media rants. Just wait ten days after your follow up letter (called a statement) and then contact your attorney.<\/p>\n
These unique and extraordinary times simply do not allow for extended negotiations or protracted\u00a0payment plans UNLESS they are created by your attorneys and\/or a Bankruptcy\u00a0Court or “regular court”.\u00a0He who hesitates will have already lost.<\/p>\n
We have written previously\u00a0on protections creatives have which permit payment during bankruptcy filings and the manners in which a bankruptcy filing will not affect your ability to get paid.\u00a0Beware of the creditor\/client pleading poverty (which may be real or perceive) in order to avoid paying you.\u00a0Given the typical disparity in size of creative and client, it is far more likely that an individual photographer, model or illustrator is in worse financial shape than the client and you are more likely to file for bankruptcy than your client. So who\u2019s neck is really on the chopping block, yours or theirs?<\/p>\n
Now here\u2019s something that\u2019s going on that might seem unrelated, but the relationship will affect you and is the point of this article. It may please large portions of the public to know that attorneys are being laid off in record numbers.\u00a0 Attorneys at even the most prosperous firms have been forced to take pay cuts of 15 – 25% or be terminated.\u00a0 Business stinks for most law firms as houses are not being sold, courts are effectively closed for most civil cases and non-essential legal work has come to a halt. Plant closures and client cutbacks\u00a0typically include cutting back on lawyers’ fees.<\/p>\n
Many utterly inexperienced attorneys are now desperate for work have descended on the world of unpaid creatives. They rely on the relative unsophistication of \u201cone person companies\u201d and induce retention by the attractive offering to work on a “pure contingency basis”. Some attorneys offer to pay upfront or continuing\u00a0expenses out of their own pockets. This almost never occurs in real life, a lawyer paying with their own money. It\u2019s would be like a farmer eating their seed corn in the mind of most lawyers.<\/p>\n
These hungry lawyer\u2019s selling point is, ‘what do you have to lose”?\u00a0 Well if an inexperienced doctor made that same pitch to you in order to perform heart surgery, you could lose your life. \u201cWhat do you have to lose\u201d, can easily answered as follows:<\/p>\n
Your case as it turns out is really worth about 100k if handled by an experienced copyright attorney. The “newbie” you hired as no real idea of its worth at settlement or trial and eagerly advises you to accept say 20k because the lawyer needs his cut and he can get it quickly. What do you lose? maybe 60 – 80k plus additional monies for attorney fees if your work was timely registered.<\/p>\n
An analogy: A woman pressed for cash in these times walks into a jeweler to sell her engagement ring. She accepts $1,500 in crisp, new hundreds.\u00a0 The ring is worth well over 100k. She did no research, did not shop around and had no idea of the real value of her 50-year-old ring. The jeweler being substantially less than scrupulous said, “You will be walking out of here with $1,500 that you didn’t have 5 minutes ago. What do you have to lose”?<\/p>\n
As we have written and lectured about countless times, when hiring an attorney, select someone with a pristine reputation, respected by local judges and adversaries\u00a0who is utterly familiar with the industry.\u00a0If his\/her reputation in the courthouse is less than pristine for credibility, you the client will be the one to suffer financially.<\/p>\n
Obtain referrals from local attorneys in your area even if they do not do copyright work themselves.\u00a0The names of the knaves of the courtroom – especially\u00a0at the Federal Court level where copyright claims are heard are well known.\u00a0If an attorney or law firm\u00a0has been fined or sanctioned on numerous occasions in numerous courts, it likely does not serve your interest to hire a lawyer or firm held in no esteem in the court your case will be heard.<\/p>\n