{"id":265,"date":"2010-02-13T16:17:34","date_gmt":"2010-02-13T21:17:34","guid":{"rendered":"https:\/\/thecopyrightzone.com\/?p=265"},"modified":"2010-02-13T18:14:08","modified_gmt":"2010-02-13T23:14:08","slug":"i%e2%80%99ll-gladly-pay-you-tuesday-for-a-photograph-today","status":"publish","type":"post","link":"https:\/\/thecopyrightzone.com\/?p=265","title":{"rendered":"I\u2019ll Gladly Pay you Tuesday for a Photograph Today."},"content":{"rendered":"

An attorney gave advice recently <\/strong> on another blog regarding protecting your photography. As a fellow lawyer, Ed can\u2019t really comment on it in the way he would like. Jack, who is just a photographer, can.
\nOne of the points given was that photographers can create their own \u201ccease and desist\u201d or \u201cdemand\u201d letter without the use of an attorney.<\/p>\n

The stated suggestion\/advice:\u00a0 \u201cWhen you don\u2019t 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.\u201d<\/em><\/p>\n

I (Jack) have to say that, I find that really horrible advice.\u00a0 The LAST people in the world, I’d want as a client is someone who has infringed<\/em> ( see also “stolen”) <\/strong>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!<\/p>\n

When I, \u201cexplain that the use is not authorized\u201d and \u201crequest payment\u201d, is it proper to send cookies and crumpets with my request? Rather than \u201crequest\u201d a payment, I\u2019d rather my lawyer send what\u2019s known in legal circles as a \u201cdemand letter\u201d. I think demand<\/em> is more appropriate when someone steals my work.<\/p>\n

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\u2019ve seen Ed take photographs. You don\u2019t want to go there.<\/p>\n

That attitude and notion that being nice<\/em> because they \u201cmight\u201d have future work, has really hurt photographers and freelancers right in the pocket book over the years.\u00a0 \u201cRequesting\u201d 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\u2019ll get from their lawyers or even the client themselves. I call it the “Whimpy”\u00a0defense – as in Popeye cartoons of, “I’ll gladly pay you Tuesday for a hamburger today”.\u00a0 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<\/em> a very big discount on the future work”. Right. Do you think they ever called? Nope, but I got my big check upfront.<\/p>\n

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.\u00a0 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.\u00a0 How can you estimate your “penalty” when you have no written representation of all usages that have been made\u00a0nor an assessment from a competent copyright lawyer as to what the infringement could be worth?\u00a0\u00a0 The value in court and thus for settlement purposes may exceed 50X<\/strong> “your fee”.<\/p>\n

I had an infringement years ago, where if Ed asked for 3X my \u201cregular\u201d fee, I would have fired him on the spot. Luckily for me, Ed don\u2019t 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.<\/p>\n

A demand letter sets the tone for your whole approach and maybe even a litigation down the line.\u00a0 If it comes from a photographer who avoids hiring a professional, the recipient usually knows the photographer is easy pickin\u2019s.\u00a0 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.\u00a0 (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?)\u00a0 Photographers writing their own legal demand letters?\u00a0 A Photographer vs. a Lawyer in a legal paperwork fight?\u00a0 Vegas won’t take action on that absurdity.<\/p>\n

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.<\/p>\n

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?!?<\/p>\n

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).\u00a0 Ed then does the work, he’s the professional, and I don’t have to get aggravated.\u00a0 The Copyright Law has an assortment of specific remedies which photographers can use to get money, statutory damages and yes, even lawyer’s fees.<\/p>\n

Photographers are upset when clients don’t use a professional<\/em> photographer, but then why are photographers scared many times to use a professional lawyer<\/em> to handle legal issues?
\nShould we also act as our own doctors when surgery is in order?
\nAlthough I\u2019ve met some people I swear did their own lobotomy. No mere doctor could have made them that\u2026.well, lobotomized. I\u2019m trying to be polite here and not say \u201cstupid\u201d.<\/p>\n

Register all of your work.\u00a0 That you can do yourself. If something’s goes wrong, then get the right person to fix it. And for goodness sake don\u2019t think you can turn an infringer into a knight in shining armor.
\nYou\u2019d have better luck turning lead into gold.
\nOr getting paid for that hamburger on Tuesday.<\/p>\n

Jack Reznicki<\/p>\n","protected":false},"excerpt":{"rendered":"

An attorney gave advice recently on another blog regarding protecting your photography. As a fellow lawyer, Ed can\u2019t 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 \u201ccease and desist\u201d or \u201cdemand\u201d letter without the […]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-265","post","type-post","status-publish","format-standard","hentry","category-copyright-info"],"_links":{"self":[{"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/posts\/265","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\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=265"}],"version-history":[{"count":5,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/posts\/265\/revisions"}],"predecessor-version":[{"id":277,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/posts\/265\/revisions\/277"}],"wp:attachment":[{"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=265"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=265"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=265"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}