Former Art Buyers and current photography consultants Amanda Sosa Stone and Suzanne Sease have agreed to take anonymous questions from photographers and not only give their expert advice but put it out to a wide range of photographers, reps and art buyers to gather a variety of opinions. The goal with this column is to solicit honest questions and answers through anonymity.
QUESTION:
I’m coming across a pretty common problem (and finding a lot of my peers are as well) with the subjects I photograph not understanding basic image copyright laws. In the last three months I’ve had my copyright infringed multiple times. Or, a previous subject has asked for high resolution files assuming they have the right to use the images for marketing or advertising purposes when those rights were not a part of our initial agreement.In many cases, because I’m still in the fledgling stages of my career, a lot of my clients, or subjects, are not well versed in how image licensing works. Therefore, I don’t believe that they are purposefully trying to steal the images or use them inappropriately, I just think they don’t know the rules. So, what I think would be really helpful is a simple, non biased, explanation of how copyright for photography works. One that explains photographer’s ownership of their images, and more specifically why we own our images. Most of the literature I’ve tried to find on the subject is either A. too complicated with dense legal terminology which bores me, and most likely will not be thoroughly understood by clients. Or, B. documents that photographers have written up that are condescending, accusatory and confrontational. I find these to be just as bad, and alienate clients.
So basically I’m wondering if there is such a thing out there, or maybe with your vast readership, something can be made that fairly,
clearly and nicely says, “This is how photo images rights works, this is the reason, and when in doubt please contact the photographer prior to using these images.”
Amanda and Suzanne:
In regards to Image Rights it’s an area we have all dealt with or will deal with in our careers in this industry. We can’t expect our customers to always have knowledge about our careers. So we as professionals must first educate ourselves on the topic, second find a way we feel comfortable expressing the limitations of the artwork and lastly making sure it’s in writing and agreed upon by both parties. It doesn’t always mean the problem is solved or problems will not arise, but you have to do your best in the beginning to set boundaries with your clients.
ANSWERS:
ESTABLISHED PHOTOGRAPHER 1:
I have a foot both in the consumer portrait world and the fashion/commercial world. While the commercial clients who commission a lot of photography usually have a decent understanding of copyright, this is not always the case. And consumers generally have very little understanding. But to be fair, a lot of photographers don’t have a clear understanding of copyright either!
So here’s copyright law in a nutshell: whenever a photographer takes a photograph, he/she usually owns that image, and can decide what to do with it. It doesn’t matter if someone hired the photographer to take the image…the client pays for the service, not the copyright. Generally the client and photographer have agreed on how the client may use that image. But the client is only ‘borrowing’ the image, and doesn’t own it. Even if the image is actually of the client! The person who creates the image owns it, unless he/she gives up that ownership.
Portrait/wedding clients will often assume that, because they hired the photographer, and the pictures are of them, that they must own the images and can do what they want with them. Not so. They have paid for the services of the photographer, and whatever rights the photographer specifically gives them as part of the transaction.
The one exception to this automatic copyright is if the photographer has agreed contractually to give up copyright, or has created the images under a ‘work for hire’ of employment situation. That is a relatively rare occurrence though.
CELEBRITY PHOTOGRAPHER 2:
Yes, it’s simple, anyone requesting the file should be educated. If a photographer gives over a high res-file, and does not mention licensing, they are remiss.
ESTABLISHED PHOTOGRAPHER 3:
Simple answer is NO.
Part A:
I need to state I don’t believe we have any real copyright protection (points 1 through 5).
1. 1st of all you have to file with the fancy office in DC in order to technically own the copyright to your own images (That process took 18 months to complete in my case.) If you don’t file, you don’t own your images.
2. And when you do have an infringement (assuming you caught it somehow), you can only go after infringers who have clearly made $ off your images (you have to be able to quantify that loss amount).
3. If you do decide go after an infringer, plan on mortgaging your house and risking it all, as it will cost a minimum of $30k to litigate and you are not guaranteed to win anything. If you loose…well… you pay their attorneys fees as well as your own.
4. By the way, did I mention that if you don’t get the registration done in 90 days of the initial publication of the image, you can only go for “actual damages”? Basically the $ you should have been paid in the 1st place. If you file within those 90 days, you can go for $150k more….but don’t get too excited… look at item 5.
5. Winning infringement case is a whole different ball of wax all together. In my case, I had a great graphic evidence, a provenance of the mis-use, all emails involved between all perties, and a confession from the ex-wife of the infringer stating what happened. I won on the 1st round and lost in the appeals process… Did I mention this is a 4+ year process? I just gave up in the end…. So, if you can’t reasonable enforce it and collect $$, you don’t have copyright protection. Case closed. That’s my $.02 worth on copyright law.
Part B:
A lot of “green” photographers have been giving away their files. We all know that, right?… And other “seasoned” photographers have seemed to have forgotten what image ownership means, because of rough economic times. I have, on a daily basis, commercial clients asking (more like demanding) for unlimited, unrestricted usage rights to their files for FREE. Constantly, I find that I loose jobs to other photogs who do just give away the full rights to the images. I don’t understand why there is no clear answer to reproduction rights and usage fees, but there isn’t.. It’s been my biggest battle in the 10 years I have been a pro-photog.
On a side note; In addition to the still photogs who give away their image usage rights, we now have video guys with our same DSLR’s being asked to generate “stills” during a shoot. They are used to working on a “work for hire” basis, trade union, day-rate basis and they have always given away all rights to their work. They are just cogs in a machine. “You want me to push the button and give you the raw files…sure, I’ll do that!”
I personally have rules for my image’s usage fees, I try to explain them to my clients ahead of time… But do they care? Do they listen? Do they understand? Again, simple answer is NO. There is no standard for shooting fees. There is no standard for usage fees. There is no standard anything. The only thing that seems standard now is that our clients know that if we don’t just give up our rights, they’ll find another photog who will.
I think the question should actually be: “Given that residual income from usage fees for a photographers images is not standard, automatic, nor enforceable, will it be around in 5 years?” Having said that, will we even be in business in 5 years as photographers if we can’t charge for the use of our work?
Part C:
Here is one example of I’m dealing with. I do a fund raising program during the month of October. My clients are families who hire me for portraits, holiday cards, albums, etc… The sitting fee is $50 for a 30 minute sitting, and it is actually 100% a donation to an educational program (that has signed up and promoted my services). It’s a win, win, win situation (the school gets $50 per sitting they book, the family gets a discount from my normal fees and I get new clients ordering prints, etc). This year I have had a huge amount of people ask: “Do I get a disk with the sitting fee?” How many do you think have found someone else who will just give away their work? Plenty I’m sure…
Do I give away my images? No.
Do I charge for my images (prints and digital files)? Yes.
Is explaining usage a pain? Yes, huge..
Would I be in business without the income generated by the usage and/or prints? NO. NO. NO.
To Summarize:
The last statement is right, it is your business and it’s how photographers survive. Now, it doesn’t mean you have to formulate your business around any one direction; you have to educate your client on the limitations of the imagery set out by YOU. It’s never a comfortable topic to discuss money, let alone limitations set out on content you are delivering. But you have to decide what is important to you, what are your boundaries/limitations (legally and professionally) and how will you explain them. You can be professional, nice and creative – and still be a smart businessperson.
Call To Action:
Use this scenario and create a plan for future estimates. Have your estimate template together/ready, along with your questions, so when that that job comes in you are prepared.
If you want more insight from Amanda and Suzanne you can contact them directly (here and here) or tune in once a week or so for more of “Ask Anything.”
122 Comments
I am NOT a lawyer (at least not yet) and this comment is not legal advice. Rather, you can get the info in here from multiple sources like ASMP and APA.
That being said, Photographer 3 misstates the law significantly! For example, you do NOT have to do anything to own your copyrights–they are yours at the moment of creation. Registering your copyrights opens the door to enhanced remedies (higher damages, essentially) and more lawyers won’t touch a © case without registration, but you don’t have to register to own the ©.
Also, the timing of registration is not correctly stated here either. If you don’t register a published image’s © within 90 days of publication, you can’t get enhanced damages for infringements that occur BEFORE you register. If the infringement occurs after you register, even after the 90 days, you can.
Please do no rely on the misinformation posted in Photog 3’s answer. Instead, go to a good source like ASMP’s Copyright Tutorial for accurate and helpful info.
@Leslie Burns,
I completely agree with your comments Leslie!
And very good advice about using resources such as APA and ASMP. Jeff Sedlick has written extensively about copyright on APAnet.
Anyone can go to the APAnet archives and see what has been discussed.
@Keith Barraclough, I’m glad to see so many responses to photographer #3’s comments. It should also be noted that copyright registration is not that difficult. I register my images immediately after shooting them and before I email, send, print, or post them anywhere. I do it online with the copyright office. It takes about 20 minutes plus time to upload the low res files and costs a total of $35 bucks for as many images as I want to include. I receive an acknowledgment via right away and the hard copy certificate usually arrives within a few weeks.
Sorry, the last sentence of my post should have read “I receive acknowledgment via email right away…”
@Leslie Burns,
I agree with you Leslie, but have one correction and 4 clarificifations:
Correction:
(1) copyright law provides a window of 3 calendar months (89-92) days from the date of first publication, not 90 days. This is a window during which a photographer may register after an infringement, and still receive the enhanced remedies for infringement. Photographers should not cut it close, but as photographers often do so, remember –it is 3 months, not 90 days. Check your calendar.
Clarifications:
(2) Many photographers routinely wait 2-3 months before submitting registrations. MISTAKE! These photographers lose the 3 month registration window if the work is infringed before it is published. Remember, UNauthorized publication is not “publication” under the law. its just an infringement. If you show your work to others and they use it (infringe) before the first *authorized* publication, you may lose your ability to seek statutory damages and attorneys fees, even if you later register within 3 months of first authorized publication. If anyone will have access to your images before publication, you should either use the new “pre-registration” form at the copyright office, or register your work as unpublished, before showing it to anyone.
(3) Many photographers find that the most significant value in a timely copyright registration is the right to seek reimbursement for attorneys fees. Photographers will often elect to receive actual damages and disgorged profits even when they are entitled to statutory damages. The availability of an award of attorneys fees is the key to securing representation by an attorney on a contingency basis. Statutory damages can be as little as $200 or as much as $150,000 per image infringed. Registering your copyright within 5 years of first publication will force an infringer to prove that your registration is invalid and that you don’t own copyright. Registering after 5 years will allow the infringer to force you to prove your ownership of copyright and the validity of your registration.
(4) If the infringer has removed or altered your copyright info, you may be eligible for limited statutory damages under the digital millennium copyright act, even if you don’t have a timely registration, and even if you don’t register before the violation occurs.
(5) Remember that date of the infringement is the date on which the infringement commenced, NOT the date on which a photographer discovers it. There are exceptions, but the golden rule is register early, register your work as unpublished, and register often
Jeff Sed!ik
@Jeff Sed!ik, I received 2 offline questions re my comment above.
Is registration necessary to protect my copyright? What remedies are available to me if I did not register before my photograph was published, and did not register within 3 months of first publication?
Registration in the USA is voluntary. If you register and register early, you earn enhanced remedies. The remedies available to you with a registration are about the same remedies available to citizens of other countries in which registration is not required. Without a timely registration, you have injunctive relief (stop the infringement), actual damages (basically, the fee that you would have received had the infringer licensed the work, also compensation for any harm done to the value of the work or to your business). Profits made by the infringer, attributable to the use of your work. The only mandatory aspect of infringement is: you have to register at some point before you file a copyright infringement claim in federal court.
With a timely registration, you earn enhanced remedies. A timely registration:
If the images are unpublished at the time that you submit your registration, a registration is timely if the effective date precedes the date that infringement commences.
If the images are published at the time that you submit your registration, a registration is timely if the effective date precedes the date that infringement commences, OR is within 3 months of first publication.
The loophole mentioned in my previous comment occurs when people have access to your work while the work is unpublished. If they commence infringement while the work is unpublished, and if the work is unregistered at the time that infringement commences , you are not eligible for statutory damages or attorneys fees for *that* infringement. However, you can still register the work and be eligible for enhanced damages in the event that other infringements occur. The copyright office addressed this loophole by creating the excellent copyright pre-registration program.
Not an attorney, so check with one before following any advice above.
@Jeff Sed!ik,
>Is registration necessary to protect my copyright?
Yes!!!!! The point I was trying to make. The “automatic” copyright you theoretically have means diddly squat UNTIL you register. And once you do register and have the paper, you will need a bank account with a MINIMUM of $30k to back that copyright up, if you need to go to federal court. There is no copyright police out there!!
> What remedies are available to me if I did not register before my photograph was published, and did not register within 3 months of first publication?
You can still register it, but you can only go after “actual damages”, not “punitive damages”. At best, all you’ll get is what they owed you in the 1st place, minus attorneys fees, minus time & effort. On a $10k usage bill (since you’ll have to quantify your lost income), you’ll probably owe your atty’s an additional $20k in legal and court fees. That is if you win… If you loose, you’ll owe their fees also.
Not an attorney either, so check with one before following any advice above, but my statements are based what I learned from my infringement. No one HERE seems to be talking the REALITY of protecting your theoretical or actual registered copyright, It ‘s all just legal theoretical poetry.
:)
@Josh Blumental, Josh, your perspective is common, but you have much to learn.
If you’ve had a frustrating failure in pursuing an infringement, perhaps you should consider a different approach. Your failure in one instance does not mean that you will fail in all instances, nor does it mean that all other photographers will fail.
If your experience involved an attorney, perhaps you should consider a different attorney.
There are of course other factors. For example, if a client was involved, did you have signed/crystal clear estimates, did the purchase order terms match your estimates, was the wording of your license clear, were terms and conditions attached, etc.. If the infringer was not a client, then whether you have a timely registration or not, a successful, efficient, profitable resolution is largely dependent on the knowledge and skill of the negotiator, be that you or your representative.
I’ve responded at length elsewhere below.
Jeff
@Jeff Sed!ik,
I guess you are now Yoda and I am master Luke…
>your perspective is common, but you have much to learn.
I agree. I do. I wen’t through the litigation process as a learning experience.
I’m an educated 40yr old, with 20 years of self-employed/entrepreneurial experience. I have a successful business, own real estate properties, and I have kids, etc… etc… I’m no dummy. I know what
Could I have your curriculum vitae now?? :)
>If your experience involved an attorney, perhaps you should consider a different attorney.
I used a well known, reputable attorney, with copyright/contract law experience,
working at large law firm. The attorney had also been my client and a friend for many years. As my attorney she told me what the process was, as a friend she warned me of the possible implications. She was very fair and honest with the reality of what I was going through. Should I find someone who isn’t???
>did you have signed/crystal clear estimates,
Yes. Very clear usage/license agreement.
>did the purchase order terms match your estimates,
Yes. Item in question was use in a manner clearly prohibited in the agreement.
>was the wording of your license clear
Yes, very clear….. “Crystal” (can you handle the truth?) ;)
> were terms and conditions attached, etc..
Yes, but not the penalties for “unscheduled/unauthorized/unforeseen uses” I now have in my agreements…
Furthermore: I had clear provenance, all emails involved, a confession from the ex-wife, graphic evidence, copyright papers, etc.. etc..
It all came down to a war of attrition: who had more time/money to put in the meter… I mean the attorney… It didn’t matter who was wrong or right or even the evidence… it was who was willing to file more motions, appeals, etc….
Again: please answer the following for all of us….
Have you ever gone to court for an infringement?
What did it cost you?
Did you recover any hard $$? (and not just a “judgement” against someone)
I am pursuing another approach. My contracts now don’t make an issue of copyright infringement, I specify and quantify damages for unforeseen/unscheduled/unauthorized use of my intellectual property.
My #1 goal is to not fight an infringement based on an unfair, vague and limiting federal law, and instead fight a battle of breach of contract in a manageable medium, with clear results. I don’t want to stop people from using my images… “Use them. Use them. Use them! But this is what you owe me if you use them without permission or without negotiating first.”
All my clients sign this new agreement, or I don’t work with them.
Any Thoughts, Yoda???
:)
@Josh Blumental,
Josh, but I’m much taller than Yoda and have more hair, for now. I’m more of a combination of Yoda and Chubaka. lets go with…Yodaka.
I won’t be broadcasting here regarding the details of my litigation experience, but suffice it to say that my experience/involvement in copyright litigation and my knowledge on this subject matter is extensive. I am not an attorney, but attorneys often hire me to assist with litigation and litigation strategy.
From your posts on this subject, you appear to be the guy who once tripped on a crack in the sidewalk, and as a result has decided not only to avoid that crack, but that entire section of town, and to advise everyone else to stay outta there as well…
Is it possible to spend $30k in litigation? You know that it is. I’ve seen photographers spend upwards of $150k, and that’s not including lost opportunity cost.
Is it possible that, when it is necessary to retain an attorney, your attorney’s fees and costs will consume a significant percentage of your damages? Yes. And a good attorney earns it.
Is it possible that you can prevail in a matter and never be able to collect damages awarded to you? Yes.
Is it possible for an infringer with money to burn to roll the dice and push the matter into litigation, and then attempt to bury the photographer’s attorney in motions, discovery and paperwork? Yep.
Is resolving an infringement always expensive? Definitely not. The vast majority of infringements can be resolved in favor of the photographer, with very little investment of time and money.
How? By using the leverage afforded you by copyright law.
Your opinion — that copyright is useless because litigation is expensive — is just plain silly. I’m sorry but there is no other word for it.
Litigation is only one method of seeking remedies for copyright infringement, and it is a remedy of last resort. Even where matters proceed to litigation, very (VERY) few ever see the inside of a courtroom, and of those, many will settle.
As photographers, we can, should and do use copyright outside of the courtroom. Not only in each and every transaction with a client, but in moving to resolve misunderstandings and intentional infringements.
My advice is — just step over the crack next time.
Use the force, Josh.
@Jeff Sed!ik,
Oh Great wise Yodaka!
My point is that push comes to shove, I have encountered a client who knows the copyright protection involves years of litigation, huge costs and was willing and able to hire attorneys who just buried the reality in motion after motion after motion. They played the game and won.
Are all clients like that, of course not. Hopefully…
However, having personally been at the “last recourse” measure, I have a hard time going into a negotiation knowing I will NEVER go through that again and will likely walk away from the table. It’s like having Khrushchev banging on the table with his shoe, having a nuke arsenal in the ready, and knowing you will never push the big red button. I don’t have the poker face for it.
Having said all that, I have still not heard about anyone actually going to court and winning a settlement and actually getting paid. NO ONE has come out and said, “Yes, I was involved in a lawsuit and after a great deal of work, I walked away with a nice amount of money and I feel vindicated.” I still have not heard someone walked away with a nice pot having had a straight flush in his/her hand.
I feel bringing all this up is like mentioning the story of the Emperor’s New Clothes. I think we are naked, or at best wearing a really tight pink speedo swimsuit touting the copyright protection, knowing there is no one looking out for us and proving infringement in a federal court is a monumental task with huge risks and little likelihood of a fair reward (unless you are the attorneys involved). Having been through this, I feel every infringer is an asshole “with money to burn to roll the dice and push the matter into litigation, and then attempt to bury the photographer’s attorney in motions, discovery and paperwork,” and I can tell you my client was not a big corporation. All I hear from everyone so far is that “No, we’re not naked!” I look down and all I see is my tight pink speedo.
I’m not trying to convince you or anyone the copyright is a void concept, I’m just bringing up the reality of what it means, at least in my world. I believe a better contract, that states damages for unscheduled/unauthorized uses might be a better alternative than relying on the “protection” offered by copyright laws. You thoughts on that?? :)
I will research the stepping over the crack advice and I WILL always use the force… :)
BTW y= “Yodaka, I AM YOUR FATHER….actually, step-father….if you really need to get technical on me.” ;P
@Josh Blumental, Josh, if you’re my step father then I expect to get computer time-out at any moment, so I’ll make this quick:
I believe that you are referring to a liquidated damages clause, in which your contact terms would establish that both you and your client have agreed upon a method of calculating damages in the event of a breach, requiring that the client will be obligated to pay you damages in an amount that is neither more nor less than the amount established in the terms. You have further suggested that such a clause would allow you to handle breaches in small claims court.
Here are some issues for your consideration:
(1) Few sane clients would agree to such terms. Clients don’t like to be bent over barrels. Contract terms aren’t worth much if no client will sign them
(2) Either the client will be screwed, or you will be screwed. Its a spin of the wheel. If the client commits the most egregious imaginable infringement, you get screwed. If the client commits a minor infringement, the client gets screwed. For example, if you have a 5x fee multiplier for breaches, and your fee is $10k, your client is required to pay you $50k in liquidated damages, even for an insignificant material breach.
(3) Liquidated damages will quickly exceed the small claim court maximum, and you will end up in a higher court, with the requisite expense for representation, etc.
(4) The “discovery” process (the pre-trial process by which each party is allowed to force the other party to provide detailed information/evidence) in small claims is like a kangaroo court. Typically goes like this: 10 minutes before trial, the judge instructs both parties to exchange documents. That’s it. When you discover an infrigement, you are often (but not always) looking at the tip the iceberg. Just one instance of infringement, where hundreds or thousands of instances exist, in various media and regions, and over time. Discovery is easily the most important tool for photographers in determining the scope of infringement and the potential damages/compensation involved. small claims court great for many matters, but horrible when it comes to photo licensing disputes or unauthorized photo usage.
(5) in some states, liquidated damages clauses are not legal. In others, the parties must specifically discuss the liquidated damages clause prior to executing the contract, and the clause must be separately initialled/signed. Courts will often ignore such clauses.
(6) While you might claim a breach of contract, the judge in small claims will likely recognize that your breach claim arises from a copyright infringement (federal law), and will quickly boot your matter up to federal court.
(7) terms in your contract only apply to unauthorized usage by the party agreeing to the contract. These terms don’t help you when other parties infringe on your copyright, which may be the majority of the infringers of your work, especially if your work is published to the web.
(8) Your liquidated damages clause will backfire when you are fighting other, non-related infringements, and those infringers subpoena your last 10 years worth of estimates, invoices, and financials, and find out that you are in the habit of agreeing that any infringement of any scope is valued at 5x the fee. This will be used by the infringer to convince the court that your own valuation of the damages for the most egregious possible infringement is 5x your fee. Your use of liquidated damages in your contract will likely result in an artificial cap on your damages in all infringement matters.
You might explore the use of multipliers in your contracts, but not in an effort to avoid federal court, and not as liquidated damages. Talk with your attorney about the feasibility of using a multiplier to set the minimum damages for infringement. his may be useful in settlement negotiations later. The courts have been refusing to allow parties to calculate actual damages using multipliers, but the court might consider multipliers, if there was advance discussion and express agreement as to the multiplier. Clients are unlikely to agree to an infringement multiplier in an agreement, unless this is introduced during the negotiation of a license fee.
We appear to be in complete agreement that photographers should avoid litigation wherever possible. Throwing gas at a large corporate client’s feet and waving a lit match in their faces is a sure way to end up in a situation in which they are very willing to pay their legal team to drive you into the ground and bury you, even if the burial process costs them far more than a settlement. I’ve seen it happen, many times.
To avoid maximize your chances at avoiding litigation, every communication with the infringer should be carefully constructed to bring you closer to settlement than to the courtroom. Rather than jumping in with all guns blazing, be professional, calm, courteous, and willing to cooperate and compromise in order to resolve the issue.
Very interested in corrections and opposing viewpoints to my lay opinion, especially from the attorneys following this thread.
Jeff
@Jeff Sed!ik,
Yodaka,
if you’re my step father then I expect to get computer time-out at any moment,
Yes, and get to your room, NOW! You are grounded for a week! Your mom and I are very disappointed. BTW. I need to take her to the salon her whole body waxed (she is way too hairy for my taste at this point). What was I thinking, her screeching drives me nuts!!??? ;)
So, my point by point reply:
1. Mine have so far, for the last 6 months or so. Would a big client sign my agreement? Hell no. I’m likelier to have to sign theirs, which surely be a “work-for-hire” contract or something relinquishing my copyright protection. I don’t (as most photographers out there) have the luxury of working only with big, big, big clients, most of my clients fall in the “business to business” category where I work with the owner or the person in charge of marketing (they are likely to have worked with an agency in the past, but not now, not in this economy). I don’t have a big name in the worldwide photo industry, I’m just a dude working alone in Utah. I can’t set the terms of engagement with my really big clients. With 90% of my clients, I invariably have to start from scratch every time explaining my rights under “copyright law.” Most have had no exposure to the concept and I have to tread very carefully when discussing “ownership” means. It would be nice if I had access to much bigger clients where this is not as much of an issue (…right?), but the reality is that I do not (I’m not complaining, I still make a nice income is as is).
2. Client aren’t screwed… this is a stated, clear contract between us. It sets the table for clear negotiations (outside court) without threatening court and statutory damages. How are you telling me I’m screwing them now? I think a nice thing to have when negotiating usage fees is a document stating “I agree to pay me 5x usage.” At which point I will say, “I’ll be glad to take 3x usage if you pay me right now, thank you very much. I’ll see you later in the parking lot when we pick up the kids after school.” (I’m quite likely to know my clients in business and socially). Actually, the language I know have has been the most useful tool so far to explain usage licenses and what the expectations are. I tell them that I hope they don’t infringe, and just negotiate ahead of time, as they should, and that there are simple consequences ahead of time. Ball is in my “court,” not theirs. If they don’t like the terms, they don’t work with me. I sleep better knowing I have something (…anything) in writing between us, stating the rules of the game, instead of relying some theoretical powers I don’t have the resources to enact.
3. Yes, in many cases… I’ll end up in our 3rd district court if damages exceed $10k, but remember, I’m still not going to court. I’m doing everything in my power not to go there. I just want to get paid a fair price for my work. Sometimes it’s just $1,000 or $5,000… and I’m OK with that.
4. Oh yes, I know the discovery process… fun, fun, fun. 10 minutes??? Yeah.. >small claims court great for many matters, but horrible when it comes to photo licensing disputes or unauthorized photo usage.< But I'm not going to court… I have clear language in my contract about what I expect and what they should do…
5. I'm setting normal, clear language in my contracts to stay out of court. Again, I'm NOT going to court.
6. Again, I'm not going to court. However, I disagree wholeheartedly. The judges are not judges, merely attorneys playing judges. They are not likely to see this as an federal law infringement case if you have clear contract about a tangible thing like an item being agreed to but not paid for. Point being, I'm still not going to court. I just hope/plan my clients will pay what is in the contract, easily and cleanly.
7. Yes, correct. In my case, I know what is involved in suing an actual client. Proving infringement with "intent" was a humongous task even having all the documents needed (including a confession from an ex-wife). You are telling me now you will spend $30-$150k+ to sue someone for unauthorized web use? My limited experience states that once it is on the web, it's all fair game.. wether you like it or not. Try proving "provenance" and "intent" when dealing with images on the web….? Good luck. Realistically, the likelier infringer, in my case is, the client that has already used my work in some form, has the digital file, and has just used it beyond the scheduled/agreed to license.
8. Why are we still talking about going to court? Subpoenas, discovery, blah, blah. I am not doing that again…
For the record, I am not out to screw clients. I'm not out for a $12,000,00 settlement I have no hopes of collecting either (that's the "blood out of a turnip" analogy). I'm just hoping to have a clause in my contracts that states damages (simple, quantifiable ones) that my client can understand and should pay without a huge fight. I think 5x the scheduled usage for every instance would be very fair. I'd rather take than than 4+ years in court, and paying attorneys… I'm very pragmatic about this… I'll take one bird in hand instead of two in the bush any day… (btw… I love the Geico commercial using this allegory).
Please, do keep in mind this contract is between my clients and myself, not the anonymous mega-corp that will take my images and plaster them on billboards nationally. I'd guess I'd take them to federal court if need be ( ..still not likely to happen in my case). These are clients I want to work with and continue working with… the clause is simple enough for them to understand and adhere to (no attorneys or threats needed). :)
Thanks for your perspective,
Josh (I don't know who my quasi-Star wars character is now)
@Leslie Burns, >you do NOT have to do anything to own your copyrights–they are yours at the moment of creation.
What is “ownership”? Tricky question. I think. I do own my copyright, but I can’t do anything about protecting it. Like car, I only really own it if I can keep you from taking it. If I have to spend $30k minimum to fight when you take my car, and the cops don’t care (or there are no cops), I do’t really “own” my car. It’s just like in Mad Max -Road Warrior . I could take one of your images, you really couldn’t do anything about it… (just speaking from my experiences)
@Leslie Burns,
>Please do no rely on the misinformation posted in Photog 3’s answer.
Leslie… I’m glad you are on your way to be an attorney. I hear they make a lot of money from these types of cases (at least mine did). :)
The point I’m trying to make is that the copyright, even when perfectly executed (within 3 months, 90 days, whatever) is sooooo hard to enforce, that we as individual photographers have little or no chance on exacting the protection offered by us. You can argue with me till we’re blue in the face, but until you personally have dealt with an infringement, written check after check to attorneys, sat through endless court vomit, you don’t really know what the “copyright” means. I have. I can tell you I will never go through that again. I don’t have the time/energy/monetary resources to do it again. Do you? Would you represent me pro-bono if I do?
Like I’ve said in another post, there are legal terms and then there is the reality of what they mean to us lowly layperson photographers. Just like descriptions on real estate fliers, legal terms mean different things in court and outside of court. For example, Cozy means Cramped, Exclusive means Overpriced, Quaint means Smells like Grandma. Copyright actually means “Start writing checks to your attorney and sit tight for 4+ years and don’t plan on winning and by the way, your wife is pissed off at you for risking your home on this, and… and….”
:)
ps. I really like my line about Smelling like Grandma….I’m going to use it more on a daily basis.
The most money a client of mine ever received for an infringement was for a photograph that was not registered prior to the infringement. She was eligible for actual damages only. Sometimes, it’s worth pursuing an infringement case for actual damages!
But it’s always best to register your copyrights. To be eligible for statutory damages for copyright infringement, you must have registered your photograph with the U.S. Copyright Office EITHER prior to the infringement (EVEN IF IT’S YEARS AFTER FIRST PUBLISHING IT) or within three months (NOT 90 DAYS) of first publishing it. See 17 USC Section 412. http://www.copyright.gov/title17/92chap4.html#412
@Carolyn E. Wright, THANK YOU!
@Carolyn E. Wright,
The reason I use 90 days as my reference is because I’m a practical person with small kids… 3 months… that’s too vague… it might be 89 or 92 days… whatever.. minor detail…
So, since you know about this subject could you answer the following:
How much does bringing an infringement lawsuit in federal court generally cost? (atty fees, court fees, etc…)
Do you have to pay for that upfront… meaning “out of your own pocket”… with hopes of recovering it and any possible damages at some point in the future?
Do you have any stats as to success rate for individual photographers wining judgements in these types of matters?
Any stats on the hard $$ recovery numbers for those individual photographers who have judgements in these matters?
Are there any photogs out there who won and have since retired and bought themselves a small island in the caribbean?
:)
It’s hard to overstate just how wrong photographer #3 is….and I have to say that by printing that response, the credibility of this (otherwise fantastic) series has just taken a huge nose-dive. Why would you (Rob, Suzanne, Amanda) put that response up? If you aren’t going to vet the basic competence of the respondents, then what’s the point of the exercise?
@Scott Hargis,
I’m thinking they knew he was wrong and were hoping it would lead to a discussion about how it’s not just clients whom don’t understand copyright.
@Scott Hargis,
How am I wrong? I believe you have to be able to protect your property in a fair manner. I followed the rules, used the best attorneys, followed the process, spent $$, wasted lots of time, and in the end just gave up because the only people who we’re winning were the attorneys involved.
@Scott Hargis, Technically, in the law books from what I read and hear, @Josh is wrong and wouldn’t ever win a legal debate with attorneys. That is what I’m reading here as well: @Jeff Sedlick.
However, I’ve been in the business 30+ years and on a practical, every day, rubber meets the road, kind-a way, @Josh Blumental is more right than everyone here seems willing to admit.
Personally I like Josh’s Mad Max metaphor because that is how it feels when a company who knows they owe you 10K and they refuse to pay in part or in whole because they’ve calculated their risk of non payment.
The reality for many photographers is that they get better ROI on an investment in new gear and marketing than they do front thousands on a legal chase. Actually, it’s a little Mad Max and a little Vegas Casino – place your bet, will you get $150K (worth the bet) or 20K (probably not worth the bet).
@Bruce DeBoer,
Thank you Bruce!!!!! Thank you!!!!!
I am not an attorney, you are 120% right! And yes, technically, 130%, I wouldn’t be able win a debate with anyone in a court room, but I can tell when they are shoveling the BS@ $300+/hr and what that BS really means to us!!!! I probably would be in jail fro contempt of court and for biting one of them!
MAIN POINT AGAIN: What copyright protection do we have when have when we don’t have the resources to implement the laws?? I know I don’t…
We are “naked” because our clients know what it costs to file a suit, etc… At best we are prancing around in a pink speedo saying “I have a copyright!!! look at me, I have a copyright!!!”
Thanks again for understanding what I’m trying to say!!!
Josh
@Scott Hargis,
Yes, you are right, the answer should have been cleaned up to clarify his opinion vs. the facts which seemed clearer when I was reading it, but then I left for the weekend and just saw all the responses.
We vet the answers so that they come from people who actually work in this industry. That is the purpose of this column. Moreover I grew tired of experts and wanted to hear from someone who shot pictures or hired photographers for a living… warts and all.
I actually glossed over that copyright part because he stated it was his opinion first. I was more interested in this:
“A lot of “green” photographers have been giving away their files. We all know that, right?… And other “seasoned” photographers have seemed to have forgotten what image ownership means, because of rough economic times. I have, on a daily basis, commercial clients asking (more like demanding) for unlimited, unrestricted usage rights to their files for FREE.”
Nobody took umbrage with that.
@A Photo Editor,
I thought my position was clear about it… no vague suggestion to my perspective.
I see other photogs just giving up, and taking it up the wazoooo. ‘Here’s a disk… thank you for the check…enjoy.. do whatever you like with them!!”
How many readers of this column just give disks away without a second thought??
How many have ever fought for their “copyright?”
How stupid do we feel (the ones who have fought)?
???
Josh
ps. “experts and wanted to hear from someone who shot pictures or hired photographers for a living… warts and all”
I don’t have warts, but I work as a photographer, and I know I don’t have copyright protection in my world – none.
Does anyone have any ideas on how to fix that???
@Josh Blumental,
you don’t have to stamp your comment on the bottom of each thread. we’re all fairly intelligent here and understand the point you’ve made ad nauseam.
@A Photo Editor,
Don’t ask my opinion then. Sorry to have given you an upset stomach. :(
@Josh Blumental,
I like your opinion and and even the style in which you write it, but you made 36 comments on this post. Are you fucking kidding me?
@A Photo Editor,
Then what is the problem??? This is 37?
@A Photo Editor,
I’ve been thinking about what you said. I think I need an outlet where I can share my thoughts. I created a blog last night:
http://joshblumental.blogspot.com
Thanks for the impetus!
:)
+1 @Scott Hargis
Also, Carolyn E. Wright doesn’t mention this in her post, but her website link says it all — she is an attorney.
Keep in mind that sending in the paperwork and fee is for a copyright REGISTRATION only. You already own the copyright, and did from the moment you tripped the shutter. All you’re doing now is registering those copyrights.
The only thing that photog 3 is correct about is that it does take a long time to hear back from the copyright office. What he doesn’t say (and if I’m incorrect about this, I’d love someone to correct me), is that your copyright registration actually takes effect when the copyright office receives the registration application. You don’t have to get the paperwork back to be officially registered.
@Don Risi,
You are correct Don. Registration takes effect the moment they receive the application. If you file on line then the registration takes effect immediately.
@Don Risi,
>The only thing that photog 3 is correct about is that it does take a long time to hear back from the copyright office.
I beg to differ. You can’t really take someone to court without the actual fancy paper document stating you own the copyright. In my case, that wait was 18 months. My attorneys wouldn’t touch it until I had the fancy paper in my hand. The opposing counsel didn’t care until we produced the fancy document.
@Josh Blumental,
You’re right in that most attorneys won’t touch a case without the registration paperwork because the case is more difficult to make without the registration and, more importantly, without the registration, it’s unlikely that the winning plaintiff will see enough money to pay the lawyer for the service.
But registration is effective at receipt of collateral (paid fee and photos on record), and that’s usually enough.
Registrations were taking forever for me too, but the last several have garnered me a certificate in six or so weeks using the e-registration site.
I am not a lawyer.
@Will Seberger,
When I say you can’t go to court with out it, I mean is that my attorney said “We can’t go to court without it.” Wether there is some BS technical reason for it, I don’t know and I don’t care. All I know is the practical reality that, when push comes to shove and you are ready to file a lawsuit, your attorney will say “We can’t go to court without it.”
Yes, the copyright is retroactive to the date it was registered, correct. But from my experience, again, you can’t walk into court without the fancy paper diploma from the copyright office.
I’m glad the online system has been working better than the old way. When I called to ask why I hadn’t received my paperwork yet, the clerk said “We have seven semi loads full of applications to process sitting out back. It’s going to take us a while…” It took me 18 months.
I am not a lawyer either … I’m going to refrain from expressing my feeling here… Beeeeeeeeep. Beeeeep. Beeeeeeep.
Thanks :)
Josh
As I read the question as it is stated, I remembered my first forays into explaining usage/copyright. It went something like this: “We are a service industry. We sell our services not a product. We sell the right to use an image not the image itself. So, let’s compare your needs to someone who needs a car. Have you ever rented, leased or bought a car? The first question I would ask is ‘how is the car going to be used – for the weekend, for a few years or till it is run into the ground? In the first case, it is similar to a rental car company. Yes you may use the car but you have to return it in original condition and full of gas – let’s call this one time usage (editorial, for instance). The second case is more like a car lease – you get to use it for a longer period and you get more choices in options, but it will cost you more money – one – three years limited usage – ( this is most advertising, as clients need to stay fresh and like the new car smell) Finally, the run it into the ground scenario – you buy the car outright with your choice of options and can do what you want with it. In this case, the usage is extended out (don’t say buyout) and varies – corporations like this until they see that the cost is much higher than the other two scenarios.
Though there may be some issues taken with this explanation, we have all needed a car and we rarely argue with the price, rather we negotiate.
In addition, John Harrington’s book Best Business Practices for Photographers has great help here. Written in plain English so you don’t get bored. Look for the “letter to editorial subjects” as a great guide to explain why after shooting someone for a magazine, you will be charging them if they are interested in using it. Part III Legal Issues – Chapter 10 in my edition ©2007
@Alex, Love the car rental analogy. I might have to “take that one out for a spin” next time I need to explain this stuff. Thanks!
@Scott Hargis,
Another good analogy is cell phone use. We own the phone, but pay for how much we use it, and even more if we go international.
Since most of us have cell phones I have had a lot of success explaining usage to clients this way.
@scott hargis, i completely agree with you. photog#3 put up a fair amount of misinformation out there. i very much enjoy this series, and have learned tons, however this part(and i mean photog#3’s interpretation of the law) unfortunately does not merit much credibility.here’s one source that i follow and find generally has good&credible advice on copyright issues, by ed greenberg: http://thecopyrightzone.com/
@carolyn e. wright, would you mind elaborating on the 90 days vs. 3 months bit, please? does that mean one has three months starting on first of the month following initial publication, much like a ’30-days notice’ in real estate does(at least in massachusetts)?
@murat arslan,
>photog#3 put up a fair amount of misinformation out there.
I’m going 100% by my experience in litigating an infringement. I’m not an attorney nor do I represent myself as one. I understand what I say might be contrary to what the party line totes, but I’m interpreting what actually happened in my case. It’s like the descriptions in a real estate fliers: Cozy actually means Cramped. Exclusive actually means Overpriced. Quaint means It Smells Like Grandma. There are legal terms with practical definitions.
Yes, you automatically own your Copyright… kinda like like owning the air around you . How do you protect it… really? You register, you get the paper, you spend $30K and maybe, just maybe, you might get paid what you were owed. It’s kinda like the scene in that movie “Coming to America” where the assistant manager tells Eddie Murphy’s character “..maybe in 5 to 10 years, with lots of hard work, you too could be assistant manager at McDowells” (it was something like that, wasn’t it?)
@Josh Blumental, My experience in all types of legal issues always seems to come down to risk and money; do you have money and are you willing to risk it to get what you deserve?
It’s a very cynical view but I would challenge the rather large readership of this blog to put forward examples were the original invoice contract involved was under $15 – 20K, there was an infringement, and the copyright owner felt that justice was done.
I’m sure they’re out there but I’m willing to bet there are many many more who feel cheated even though they followed the rules.
@Bruce DeBoer,
>do you have money and are you willing to risk it to get what you deserve?
Do many of us have an expendable $30k+ to fight for our rights?
If we rely on the copyright as protection (assuming it is an immaculate and perfect registration) and it cost us a minimum of $30k to fight for our rights, how many of us are actually willing/able to do it?
How many of this blogs readership have gone to court for an infringement?
How many have won?
How many have actually received any $$ in the end?
I asked this several times since I was asked to reply to my points and the comments made.
Has anyone reading this actually won hard $$ fighting for their copyright??? Anyone??
I know some who have settled received $ prior to court, and some who have won judgements(but never been able to collect).
Anyone out there who has played the game all the way through, won and stepped away with a tangible $$ victory??
Anyone????
Have YOU (personally) ever fought an infringement of your copyright in court?
@Josh Blumental,
josh, thank you for your response and explaining yourself. it seemed as though you were stating facts(which were not correct in the context of the law; and i know that you are correct about the practicality and enforceability of those rights when push comes to shove), and i appreciate your sharing your experiences with the rest of the readers here. and i actually agree with you that it is very hard and frustrating to pursue these claims against companies with bigger pockets in the real world.
The real problem here isn’t that customers don’t understand copyright. The problem is that photographers don’t understand their customers. Figure out what your customer *really* wants and needs. Then write up a quote that meets their needs.
Old-school ph0tographers like to tell the story about that one image they took 20 years ago that suddenly they made a big killing on years later, as if keeping a lock-hold on that image was a good financial decision. Me, I’d rather get an extra $100-500 per client today, and put that money away for retirement, than hope that someday one of my images will be worth an extra $500 or $1000 or even $100,000 to someone. Maybe. Or maybe not. I know a LOT of photographers with extensive image archives who have never licensed something for $$$ (or even $) years later.
Meanwhile, my customers would much rather pay an extra $100-500 today to get unlimited use for images that in most cases they will never really use again anyway, just so that they HAVE the images (and the rights) in-hand, in case.
Copyright is really irrelevant. It’s about finding out what your customer wants, and finding a way to deliver it at a reasonable price. If your customer is “violating your copyright” odds are very high that you didn’t do your due diligence to find out what the customer really wanted! If you missed this one, what ELSE did you miss? Did you lose an opportunity to make a better image to meet a customer’s needs, because you didn’t fully understand their needs?
Finally, for every photographer who complains that customers don’t understand copyright, I can show you 10 photographers who violated someone else’s copyright – often using text or music (in ways outside of fair use) without the appropriate license. It’s really strange how most people who make copyright-protected works only focus on the supposed value of their own copyright, while ignoring the protections copyright gives to others.
@JC Dill,
“Copyright is really irrelevant.”
Copyright is not just for protecting rights to your images with your customers but also from people who are not your customers.
@Victor John Penner, your observation is correct, but it has nothing to do with THIS discussion. Yes, copyright has relevance in other areas, but IMHO it’s not what is important between me and my customer. What is important between me and my customer is that I understand my customer’s needs, and produce a quote that meets those needs, and then create the works that meet those needs.
@JC Dill,
But your quote is based on the fact that you control the rights, not your client, so it does matter. Copyright is relevant.
@Victor John Penner, it doesn’t matter if “legally” I control the rights. The client wants what they want, and it’s stupid to get into a fight with your client, arguing that they can’t have what they want. Figure out what they want and INCLUDE it in your quote. Arguing with your client about copyright isn’t going to make your life better. Figuring out how to meet your client’s needs is what will make your life better.
@JC Dill, What do you do if the client changes their mind later? Or makes a mistake?
Does copyright matter then? Or do they just get the extra usage for free, because they want it?
@Scott Hargis, I build that into my “cost of doing business” when I figure out how much extra to charge every client. That’s part of that $100-500 extra I build into the quote, up above. They don’t get it “for free” – it’s just built into my rates. Then I don’t have to be involved in the business of fighting with or suing my clients. Instead I can be involved in the business of making photos my clients love.
@JC Dill,
Maybe that is the difference. Some of our usage is in the $000,000 not $500.
@Victor John Penner, I highly doubt clients in the $000,000 range are intending to use your images outside the scope of your contract, as described in the OP’s question.
The OP is talking about clients as “subjects” who then want to use the photos in marketing materials etc. – this sounds a lot like corporate portrait work. When people hire a photographer to take photos of themselves for promotional work, they think they are getting “work for hire”. Well, really, that’s WHAT THEY WANT. Why fight them? Why do photographers waste their time trying to be lawyers fighting over their “rights” to charge more for “usage” when this doesn’t fit the buyer’s needs???????
When dealing with THAT type of client, rather than wasting your time arguing with the client about copyright, it’s more important to find out what the clients needs are, and build that usage into your quote. Then add in a bit extra, in case the client has future needs that you weren’t aware of. Then deliver the work and MOVE ON.
In MY opinion, in the circumstances described by the OP above, it’s much better to charge $100-500 extra per client, and when one client uses an image that you would have charged $500-$5000 more for, you can just go “it’s a good thing I accounted for that in my quotes for the past 30 clients” and not have to waste your time trying to fight with, charge, sue, etc. your clients.
But hey, if you would rather spend your time arguing with your clients about copyright, trying to dun them for unauthorized uses, or suing them, be my guest.
We should have stated at the top “This is not legal advice” – and THANK YOU Leslie for chiming in. This is Ask Anything – we ask people in the industry we respect or we know who have battles certain topics and we post to create a space for conversation. These are only opinions! The call to action is to really do your OWN research, seek out legal advisers and be prepared – so you are NOT ONLY REACTING when a situation happens – but be prepared prior to. LESLIE – HURRY UP AND PASS THE BAR – The industry needs you!
@Amanda & Suzanne, I don’t think anyone is mistaking this column for legal advice. But we do hope that you’re sourcing responses from people who are knowledgeable.
Opinions are one thing, but photographer #3 laid out statements that are factually wrong (“…you have to file with the fancy office in DC in order to technically own the copyright…If you don’t file, you don’t own your images.”
I don’t see the value of that response. If nothing else, you should have edited out the portions that were blatantly wrong.
Since I happen to know about copyright, I was able to vet that response myself. But what am I to think in the future, when a topic is addressed here that I’m not already knowledgeable about? Can I trust that the information I’m being presented with is factually correct? We readers are counting on you to vet these responses! Again, I don’t mind hearing someone’s OPINION on something; I can tell the difference between an opinion (which I may or may not agree with) and a statement of fact. I rely on you to make sure that the statements of fact are accurate. This is not an interview format, where you’re obligated to present exactly what the person said; this is a “learn from the experts” format where we trust that the “experts” are competent.
@Scott Hargis,
Again… How am I wrong? I shoot a photo. You then take it and use it commercially. Unless I have registered that image with the fancy office in DC and paid my fees, I can’t stop you from taking it. I don’t own what I can’t protect. Having said that, say I do register within the 90 days and get my paperwork 110% in order. You have still taken my image and used it commercially. I need to cough up at laest $30K to bring this to FEDERAL COURT. I will spend roughly 4+ years dealing with this. The chances of actually getting paid are what again??? Has Liz Ordonez gotten her $12,000,000 judgement yet…actually any $$ or just a settlement worth nothing? Does anyone have any stats on successful copyright infringement judgements? I’m sure Disney has plenty, but little ol’ us? Anyone got some #’s?? How many of these infringements have WE won and COLLECTED on?? Anyone? Anyone???
@Josh Blumental,
Josh, this particular statement is constantly getting you in trouble here. If you paid off your home mortgage, you now own your house. Does that mean you can protect it from a massive earthquake? No, but you still own your house.
The copyright law puts the teeth in your contracts, and it is foolish to avoid delineating it in your contracts, even if ever so briefly in parentheses.
Also, responding to JC Dill’s advice about giving the client what they want: We are all trying to do that, but taking the high road here is a bit off post. Whether intentional or not, clients and third parties illegally use images, and you simply can’t build in all kinds of multipliers and figures into an estimate or confirmation. As Jeff Sedlik eloquently posted, specific numbers and liquidated damages on a speculative future use or mis-use) only open a pandora’s box of more loose ends.
@Ron Levy,
Trouble? I’m in trouble?????
#1 I have earthquake insurance.
#2 It might put teeth in it, but I don’t have the $$$$$ required to get those teeth to actually work; I doubt you do either.
#3 My biggest issue is with my clients using the images well beyond their agreed to and paid for contracts. They have the full res files and have already used them. They tend to use them again, again and again. My contracts now put responsibility of 3rd party usage on my clients. “You have my files, don’t SHARE them at will, or I’ll bill you for the usage.”
#4 REL: Jeff Sed!ik. The contract is between my business and my clients business. Language is clear and simple. I’d be 1000% more willing to go to court fighting those points/claims, than I would the “enhanced protection” afforded to us by the copyright laws. I’m not an attorney, neither is Jeff. Regardless of that, the law is interpreted by judges and those judges are human. What mood is your judge in on the day of your case?
#5 Rob Haggard (the editor & moderator) got mad I replied to every post and to every rebuttal. I created my blog as a result. The image I posted on 10/15 clearly states what I feel about all this: http://joshblumental.blogspot.com (I only have a blog as a result of Rob’s comments)
:)
re: “you don’t own it”
If you don’t register a vehicle… do you really own it??? What does that really mean??? If I come to your house and steal that unregistered 1957 corvette, what do you do? Call the cops?? Do you give them a bill of sales? What’s the phone for the copyright police??? Where is your bill of sale for your copyright???
You ONLY own the right to reproduce (copy) your own images… You DON’T own the right to stop anyone from doing it.
@Josh Blumental,
#3: Do you clients accept all the responsibilities of 3rd party clients, even if they have no relationship to them?
If your puts images up on a website and someone copies them, would you sue your client?
#4: My guess (not a lawyer either) is that your contracts still fall under the Copyright Act as they fundamentally rely on royalty and reuse. Otherwise, you can write anything you want in a contract — if it doesn’t have a legal foundation somewhere on the books (this case, federal), it will lose its value.
Yes you still own your Corvette even though you don’t register it. You just can’t drive it on city streets.
I don’t understand your question asking where the bill of sale is for the copyright? It’s your invoice, or and (hopefully) your copyright registration. With unauthorized usage, it’s their lack of a receipt.
Ron
@Ron Levy,
Correction, I should have said in #3: “3rd party uses” — meaning someone copying or using an image posted by your client but not related.
@Ron Levy,
#3 It is a simple clause that explains that if they pass on my files/work/images to a third party, they will be responsible for their uses (kinda like a rental car clause that says if you let you 13 year old drive the car, you are responsible for any damages.) Am I likely to sue my local client for the use of my work by a mega corp? Not likely, but I’m less likely of having that local client pass of my files wilie-nillie if there’s a clause in their contract that makes them responsible.
#4 They probably do! If I were in federal court, with multiple attorneys and paralegals, and expert witnesses, the contract would not hold up. That is not the point!! The point is to have clear language we, not jargon toting, leagaleeeeeeze swearing, non-lawschool people can use and understand. My clients don’t understand copyrights and federal copyright laws. I only understand what I understand because I spent months researching my situation and talking to multiple attorneys and filing papers, motions, affidavits, etc… They are not going to understand it… They will understand a simple 4 sentence contract that says “Josh owns his photos. If you use them beyond X’s in your contract, you owe 5 times the value/usage as stated in X. If you pass on the files and someone uses them, you are responsible for paying the their licensing fees.” They read it. They sign it. They understand it. Will it guarantee success? No. Is it a toll to keep them/me/us out of federal court?? Yes, I think so.
CORVETTE. Yes you “own” the corvette if you don’t register it. If I take it out of the garage, make a bogus bill of sales, and register it, how are you going to get it back??? You call the police?? Did you have insurance??? Keep in mind here is no copyright police!! There is no copyright insurance!!
Let’s say now the 1957 corvette (valued at $175k+) is now a 1997 Toyota Previa minivan (valued at $3k). Let’s say I take it from your driveway (it’s not insured or registered). Are you going to spend $30k-150k and 4+ years to get it back???? Again, assume there’s no police… since in the copyright world there is a policing force.
In my experience, even when you have a receipt, a provenance, a confession from an ex-wife, expert graphic evidence, a fancy document from DC stating I owned the copyright, the reality is that it all comes down to how much money the defendant has to throw at their attorney to bury you in motion after motion until you give up. And even if you do win damages (which I did), they will appeal it and start the process again. And in the end, you’re likely to give up… I did.
I typically work with $1k-3k images. I don’t have the time or money to enforce the copyright law as it is. It might work if I was working with megacorps like Nike, Fed Ex, at&T, but in my world… the copyright law as it is no worth diddly squat, even as a threat.
Where does your work fall? Will you spend $150k suing a small/medium size biz for your $1k bill? What are you going to do instead?? Let me know…. Talking about copyright and infringement has not worked in my world. I’m sure it works great with the big guys, but not with my dinky clients.
:)
Josh
BTW. If you want a 1957 corvette, here’s a link: http://usedcorvettesforsale.com/1957-corvette-37458.html Let me know where you’re going to park it overnight…. ;)
@Josh Blumental,
Good points but they are contradictory.
Basically you are saying that your contract keeps most of your clients honest. Then with the car analogy you are saying that in the worst case scenario, you can still steal the car.
99.9999% of the time, nobody will steal the car. Sothe registration keeps most people honest. AND you still own it.
The issue always seems to get confused between legal ownership/enforcement vs physical stealing.
@Ron Levy,
I don’t see the contradictions.
I never said the contract keeps people honest. I said the contract sets parameters for payment if they go beyond their contract without negotiating a new one. Are you dishonest when you return a video back late?? It has nothing to do with honesty.
>99.9999% of the time, nobody will steal the car.
I don’t know where you live, but around here if you leave an unregistered car unlocked in your driveway, you’re likely to find an empty parking spot in the morning. Yes, you “legally” owned the car, but now it’s on a semi on it’s way to Mexico. How exactly are you going to enforce your “legal ownership” there? Do you “own” the car if it’s the garage of wealthy diplomat in Guadalajara? Legally yes, you OWN a 1957 corvette. Practically, all you own is an empty parking spot. How is that different than Megacorp, Inc. taking one of your images?
My point (as Rob Haggard mentioned I have brought up ad nauseum) is that we (at least I) don’t have the resources to enforce the “enhanced protection” afforded to me by the wonderful copyright laws. I don’t for Megacorp, Inc in NYC, and definitely not for Dinky Corp, Inc. down the street.
Do you?
There is no difference between “legal ownership” and “actual enforceable ownership,” if you don’t have a legal team behind you and $30k-$150k to pay them, and a willingness to waste 4+ years of your life….
I still con’t see a contradiction or why people here are so concerned with proving me wrong.
BTW I still have not heard from anyone who has actually won a net $$$ by enacting their “enhanced protection.”
Anyone?????
@Josh Blumental,
this is diverging from your initial statement that if one doesn’t file with the copyright office, one doesn’t own the images. factually wrong, but as you correctly argue, hard and expensive to enforce and collect even with registration.
People are not trying to prove you wrong as much as they are defending the value of copyright registration. This is not personality-based.
There is still value through injunctive relief and further unauthorized usage when you mail a stop and desist letter (based on copyright).
I would also consider that even though a mega corp has more money, they still have to do a cost-benefit on whether the fight is really worth their time and money. They are still paying attorneys big bucks, and the pressure to settle is there. I am not defending an unauthorized user here, just mentioning a common ground.
@Ron Levy,
Yes, yes…back to the original point.
You push the button and then you legally “OWN” the copyright.
Maybe I should have you explain what that ownership means… in the real world… please explain it to me…. maybe UI have it wrong…. WHAT DO YOU REALLY OWN??
>defending the value of copyright registration
Fine… register… I never said not to. I said it’ not worth much if you can’t enforce it, but sure.. file and register. Beyond that, good luck doing something with it.
>hey still have to do a cost-benefit on whether the fight is really worth their time and money. They are still paying attorneys big bucks, and the pressure to settle is there.
Most of these big corps have in-house legal counsel, correct? They are on salary. All they have to do is file motion after motion after motion after motion. Hell, they might even sue you!!! You will eventually go away, be broke or both. It costs them noting… cost analysis? Me thinks they can make me go away, you away, almost every shmo they hire or use their images go away.
In my world, I don’t work with megacorps, I work with ma&pa businesses… (maybe a bit bigger, but I still know/meet/discuss matters with the owners). My experience says that even ma&pa business’ have enough resources to bury me in legal vomit.
>unauthorized usage when you mail a stop and desist letter
In my experience, once you send the cease and desist letter, and they give you the finger and tell you to go away, you’d better be willing and able to shell out $$$$ for your attorney. Most photogs I know that I’ve discussed this with are under the impression they have someone (some gov entity) out there looking out for their interests. Do you?
I’m just trying hard to avoid that scenario again…. and sharing my views on the matter! All I get is resistance and denial from most photogs…
I’m surprised no one has mentioned the old but still good,
10 Big Myths about copyright explained
It might be worth it to spell out usage rights a bit m0re when talking with a client as well as mention the price of further usage. That way if a client decides they want to use the image in a larger market, you have already pointed out that there is a price for that.
Another vote for Harrington’s photo business book (mentioned in comment #5), and also “Licensing Photography” by Weisgrau. Also, Blinkbid is very good invoicing software that makes it relatively easy to specify licensing terms (including copyright info) with invoices.
As far as I can tell one of the biggest mistakes beginning photographers make is not discussing usage when giving job quotes. It’s an essential issue that must be addressed right from the beginning. Registering the photos isn’t enough–you also need to be sure that the client understands which rights they’re licensing and which rights they aren’t.
I realize that Photographer #3’s comments have sparked some discussion, but since the Part A comments are dead-wrong, undeniably, demonstrably, baldly wrong wrong wrong, and since many people won’t get as far as reading through the comments, I think some note should be made in the body that the info offered is dead-wrong, undeniably, demonstrably, baldly wrong wrong wrong. There’s already so much misinformation out there about copyright, it’d be a shame to cause even more confusion.
I think that people bitching about photographer #3 is hijacking this discussion. This person obviously got burned and is still very sore about it, so they’ve gone overboard. Now the matter is straightened out can’t we get back to the discussion at hand?
Nowdays clients are in the mood for an all rights grab, often thanks to their lawyers. Whether they need them or not is not relevant to them. Combined with sinking fees, greater expectations of photographers jumping through hoops to get the job etc., etc., …. it’s not a pretty world out there and it will get worse.
As long as there are too many photographers, which there are, this isn’t going to change. Everybody has to make up their own mind where they draw the line and live with it. Knowing how to protect yourself is the first step, whether it will do you any good is another matter.
Me, #3, again:
>people bitching about photographer #3 is hijacking this discussion. This person obviously got burned and is still very sore about it, so they’ve gone overboard.
I just wanted to point out that the copyright concept doesn’t really work… Yes, 100% I got burned. I followed the rules and wasn’t willing to pay more and more and more just to play the game anymore. I played teh game to see what my © really meant. I found out, not much.
If you are going to tout you have “protection,” be it a Copyright or some kind of gun in a fanny pack on your waist, you should have the ability to use it. I don’t know many (actually any) photographers with the resources (ability) to protect their property.
If you can’t protect IT, hold on to IT, keep others from taking IT, then YOU DON’T OWN IT.
Simple logic.
Josh :)
@Josh Blumental,
“…then you don’t own it”… Please see my response under #8 above. This is the statement I was responding to, but somehow it was omitted when I quoted it and posted.
Ron Levy
Where did my other post go???
I replied to all the complaints about #3…
I had no idea people we commenting on all this:
Here are some replies:
>you do NOT have to do anything to own your copyrights–they are yours at the moment of creation.
What is “ownership”? Tricky question. I think. I do own my copyright, but I can’t do anything about protecting it. Like car, I only really own it if I can keep you from taking it. If I have to spend $30k minimum to fight when you take my car, and the cops don’t care (or there are no cops), I do’t really “own” my car. It’s just like in Mad Max -Road Warrior . I could take one of your images, you really couldn’t do anything about it… (just speaking from my experiences)
>It’s hard to overstate just how wrong photographer #3 is
How am I wrong? I believe you have to be able to protect your property in a fair manner. I followed the rules, used the best attorneys, followed the process, spent $$, wasted lots of time, and in the end just gave up because the only people who we’re winning were the attorneys involved.
>The only thing that photog 3 is correct about is that it does take a long time to hear back from the copyright office.
I beg to differ. You can’t really take someone to court without the actual fancy paper document stating you own the copyright. In my case, that wait was 18 months. My attorneys wouldn’t touch it until I had the fancy paper in my hand. The opposing counsel didn’t care until we produced the fancy document.
>photog#3 put up a fair amount of misinformation out there.
I’m going 100% by my experience in litigating an infringement. I’m not an attorney nor do I represent myself as one. I understand what I say might be contrary to what the party line totes, but I’m interpreting what actually happened in my case. It’s like the descriptions in a real estate fliers: Cozy actually means Cramped. Exclusive actually means Overpriced. Quaint means It Smells Like Grandma. There are legal terms with practical definitions.
Yes, you automatically own your Copyright… kinda like like owning the air around you . How do you protect it… really? You register, you get the paper, you spend $30K and maybe, just maybe, you might get paid what you were owed. It’s kinda like the scene in that movie “Coming to America” where the assistant manager tells Eddie Murphy’s character “..maybe in 5 to 10 years, with lots of hard work, you too could be assistant manager at McDowells” (it was something like that, wasn’t it?)
>Photographer #3’s comments have sparked some discussion, but since the Part A comments are dead-wrong, undeniably, demonstrably, baldly wrong wrong wrong, and since many people won’t get as far as reading through the comments, I think some note should be made in the body that the info offered is dead-wrong, undeniably, demonstrably, baldly wrong wrong wrong.
Again… How am I wrong? I take a photo. You take it. Unless I have registered that image with the fancy office in DC and paid my fees, I can’t stop you from taking it. I don’t own what I can’t protect. Having said that, say I do register within the 90 days and get my paperwork 110% in order. You have still taken my image. I need to cough up at laest $30K to bring this to FEDERAL COURT. I will spend roughly 4+ years dealing with this. The chances of actually getting paid are what again??? Has Liz Ordonez gotten her $12,000,000 judgement yet? Does anyone have any stats on successful copyright infringement judgements? I’m sure Disney has plenty, but little ol’ us? Anyone got some #’s?? How many of these infringements have WE won and COLLECTED on?? Anyone? Anyone???
Josh Blumental
@Josh Blumental, http://blog.chasejarvis.com/blog/2007/06/jarvis-v-k2/
@Re Wikstrom,
Do you know where his case is now?
I found info regarding this online… infringement occurred in 2001/2002? and the case was well on its way in 2004. In he appellate court in 2007.
It’s 2010 now… where is this.
Has he been able to collect?
Has chase seen a dime out of this??
Has he retired and bought a small island in the Caribbean??
:)
I wrote another version of my perspective below. It’s a little calmer than the 1st. I have to admit my blood pressure rises when I think about this stuff, it’s still fresh and a touchy subject with me. I’d love to believe that © really means what it supposed to, I’ve found out it really just means it Smells like Grandma.
I have come to the conclusion that 99.9% of my clients don’t care about copyrights or usage/licensing. They believe they own the images you create, and they are going to use them as they see fit. I have lost many jobs by even mentioning the words “copyright” and “licensing.”
I also know, from my own personal litigation experience, that the protection offered by our “COPYRIGHT” is minimal at best. It is not a case who has the law on their side or who hires the best attorney, but rather it is rather who is willing to spend the most amount of money feeding that attorney. It is strictly a battle of attrition. Fighting an infringement is a money pit with no end in sight. I’ve heard of many infringements, but none that have actually garnished a net profit. At best, you may end up getting what you we’re owed in the 1st place. At worst, you end up loosing your shorts, or your house. If you do chose to pursuing a lawsuit, you should plan on spending a minimum of $30k and 4 years of your life, with no guarantee of winning your case. There is no “police” out there looking out for your interests, the burden of proof is 100% on you. Our clients don’t care about copyrights because fighting infringement is NOT feasible for photographers like us; We DO NOT have the time, energy or MONEY required to adequately protect ourselves or our intellectual property.
So, to answer the question: No, there is no easy way to explain reproduction rights to your clients (it’s much like talking to a wooden post…blahh…blahh…blahhh..). My system now is to explain myself a best as I can, and assume they will use them inappropriately and well beyond their contractual agreement. My contracts now have verbiage in them that accounts for that, as well clear verbiage that states the amounts owed for such “unforeseen” unauthorized uses. It is all obviously tucked in the “small print.” I don’t know how it will play out, as I have not yet had to implement such “penalties.” I just hope to avoid getting attorneys involved, because I know who always wins in that equation.
On another note: My previous career was as a product developer. Back then, I constantly was asked, “Did you get a patent on this?” My response was always a practical one: “You have to plan on making $400k on any given product to bother with a patent, because you will spending $40K to get the decent patent and spending another $150k fighting an infringement. I don’t have $200k sitting around.”
Established Photog #3
@Josh Blumental,
This may be a good idea – bill your clients for their stated use – and put in the contract a specific fee for using the image beyond the original agreement. Then it isnt a copyright issue anymore right? It becomes a breach or a contractual agreement.
@Mr. Biggs,
Touché!
Copyright infringement costs a minimum of $30k. Get clear language in your contracts stating the approved and negotiated uses, and language stating what the damages are if they go beyond that: Like fines on overdue videos.
I never said not to get the fancy paper from DC, I did point out I never want to go though one of these cases again. I’m taking matters to deal with this ahead of time.
Thank you for listening!!!! :)
Josh
One last point I want to make:
People WILL take your work without paying for it. 100% guaranteed. Don’t count on the © or the fancy paper from DC to protect you property (as “they” are not looking out for YOU).
Figure something else out…
And… let me know what actually works… :)
I had a potential client swear they only needed usage for one year and for one ad but still insist that the contract be for unlimited usage forever at the same price as the single usage. “Okay, so you want unlimited usage in perpetuity, then it will be XXX.” No, we promise we will only use it once, so we can only pay the single usage fee, but the owner of the company insists that the contract be for unlimited usage because he doesn’t understand copyright and usage and he doesn’t want to keep track of the photo. “Okay, then please explain to him how it works.” No, he doesn’t understand it. “Okay, then I will explain it to him.” No, he refuses to learn.
We just talked in circles. It was ludicrous. Needless to say, they never became an actual client.
It would have been nice to point the owner of said company to a nice cleanly stated web page that explains it -and not one of my own making on my own site, I feel like it would hold more impact to have a page created by a collection of photographers. Strength in numbers to convey they point that these are actual standards and not just something I pulled out of the air.
@Re Wikstrom,
http://asmp.org/tutorials/copyright-primer.html
@Victor John Penner, That is of course a wonderful reference for photographers (and -could- be used by their clients), but I think what the original question was getting at, was looking for something similar to that, but created and directed specifically to and for the photo buyer. It doesn’t seem appropriate to direct a potential client to a site that also talks about how to sell your client on the licensing. A completely separate section of the ASMP website created for educating clients would be great.
@Re Wikstrom,
Join the ASMP, print it out, give it to your clients. There is a lot of information out there available to you but it comes down to each author to be responsible for their own business.
@Re Wikstrom,
Is this the type of site you are looking for? It is composed of people from all the areas of the business, including photo buyers.
http://www.useplus.com/aboutplus/coalition.asp
@Re Wikstrom,
You mean they said one thing and did another? And when you talked to them, it was like talking to a wooden post??
I thought I was the only photographer that dealt with clients like this…
Read my other posts: I believe they don’t care about copyrights because they know we don’t have the resources to fight an infringement.
As an informational comment, the Plus Coalition is a non-profit initiative that is working to address the issues of this post . I am working at adopting this system for my business because I feel that it could improve communication with clients and I am interested in hearing what others have to say about this effort. Here is a quote from their home page:
“The PLUS Coalition is an international non-profit initiative on a mission to simplify and facilitate the communication and management of image rights. Organized by respected associations, leading companies, standards bodies, scholars and industry experts, the PLUS Coalition exists for the benefit of all communities involved in creating, distributing, using and preserving images. Spanning more than thirty countries, these diverse stakeholders have collaborated to develop PLUS, a system of standards that makes it easier to communicate, understand and manage image rights in all countries. The PLUS Coalition exists at the crossroads between technology, commerce, the arts, preservation and education. ”
Their URL is http://www.useplus.com/useplus/standards.asp
Thanks,
Michael
#18 Thank you Josh what was just accomplished here? No good dead will go unpublished?
@Gary Miller,
I’m not sure what you mean?
I was asked to share my perspective on the matter, no matter how cynical it is. I believe you should copyright your images, I never said you shouldn’t. Point being that pursuing litigation is so costly and inefficient, that it renders the copyright protection out of reach for all but a few of us.
@Josh Blumental,
Sorry for being vague, I believe you are correct in your comments.
@Josh Blumental, sorry “good deed” dead was a Freudian slip on newspaper photography
Photographer 1 makes some good points and has the right idea, but statements like this:
” It doesn’t matter if someone hired the photographer to take the image…the client pays for the service, not the copyright.”
Are not really correct.
The client is in fact paying for the copyright. Not copyright ownership, but permission to exploit the copyright. The service and the creation of the image are just a means to that end.
Even if the neither the photographer nor the client understand this basic fact about their transaction, even if the photographer charges by the day or hour, and no matter what the paperwork says, the client is receiving rights granted or assigned to the client under copyright law. The exception of course is work made for hire, or work made by an employee, as the copyright is owned by the client/employer from the moment that the shutter closes, and never passes through the hands of the photographer.
Similarly, this statement: “the client is only ‘borrowing’ the image,” while well intended, requires clarification. The client is not borrowing the image. The client is borrowing (or leasing or receiving or whatever) the underlying copyrights in the image, either on a non-exclusive basis, or on an exclusive basis. The exception would be a print sale, which is a sale of a tangible copy of an image, and may or may not include a copyright license, such as, in the case of wedding photography, the right to display the print in an album or on a wall, etc.
Jeff Sed!ik
Thank goodness Leslie set the record straight regarding some of the mistruths in the third photographers response. Its specifically a misconception of these issues that leads so many of my fellow young photographers to not register their images for misunderstanding how the system works.
Another issue is the darkly negative attitude presented in many segments of photographer 3’s response. Its antagonistic, finger pointing behavior like this that prevent so many from finding alternate and proactive methods of solving the above problems by communicating these issues to clients. It also affects other photographers greatly, and seems to just add to the doomsaying thats sweeping the industry right now.
Alex and Keith’s Car and cell phone analogies (respectively) are great methods of communicating this issue to others in terms they are more familiar with, rather than blathering on angrily about how clients don’t understand.
“But do they care? Do they listen? Do they understand? Again, simple answer is NO”
the above quote is an example from Photographer 3’s response that shows s major issue with attitudes towards clients. How can you expect clients to understand issues or communicate effectively when ones attitude towards them is so antagonistic. While there are clients out there that one can do without (bad apples in every bunch) most clients merely need to be educated more and are not actively out to screw photographers, merely to pay a fair price for the value they perceive. Sometimes they need a tangible demonstration of just what that value is to better understand the price they are paying, thats why we should be focusing or selling on value, skill, vision, and service, and not just bottom line price.
And in the case of those clients are are toxic, stick to your guns firmly but respectfully, and if all else fails, drop them and get better clients.
@Luke Copping,
While Photographer #3’s response is very negative, I also think it is very realistic. Basically in the end – even if you did properly educate your client- you will need to involve lawyers in a case of infringement. Lawyers = $$$$$$
A simpler method, what Mr. Blumental is suggesting, is to write the client’s request for usage into the contract, charge appropriately, and also include a statement that defines a fee for any use of your images beyond the agreed use as stated in the contract.
I am no lawyer – but I believe that you would then be dealing with a breach of contract which is possibly a lot less expensive, and now carries with it a pre-defined “penalty”. Thus there would be no need for expensive court cases – the majority of which could possibly be litigated in small claims court without a lawyer involved.
Of course the client doesn’t have to breach the contract and use the images outside of their contracted use – they can always go back to the photographer and negotiate more uses for more fees. I think this puts more power in the hands of a photographer and may be the way that professional contracts should in turn evolve with the current situation in our industry.
Maybe it’s a case of adapt or be left behind.
@Mr. Biggs,
You can call me Josh…
Yes. Exactly! Someone is litening!!! YAY!!!
Breach of contract can even be dealt with in small claims court!!!!
Establish penalties ahead of time!!! Don’t leave it to the courts to decide…
“if you do use the image(s) X,Y beyond term Z you agree to pay me 5 times the rate stated in fotoquote for each specific unspecified/uncontracted use.”
It’s not infringement, it’s “penalties for use beyond what was contracted.” You’re OK with them using it, just as long as you are paid for the use.
Doe this make sense???
Thoughts anyone???
:)
@Luke Copping,
>Another issue is the darkly negative attitude presented in many segments of photographer 3’s response…
I think the word you are looking for is “cynical” – Yes, 120% Dark and antagonistic? A bit harsh, me thinks.
You talk to people, you explain to people, people don’t listen…
“merely need to be educated more and are not actively out to screw photographers”
My experience says that 99% people only hear what they want to hear, and 99% of those do what is most advantageous for them. I don’t believe most have malicious intent, they are just looking out for #1 (not for #2… and you or I are #2).
I don’t think I’m dark or antagonistic, I’m sorry I come across that way.
:)
@Josh Blumental,
Fair enough, perhaps I have had the luxury of being able to get rid of the clients I found to be too stubborn or set in their ways or simply out for the bottom line, so I may have a different perspective, I think in many ways this discussion deals with a lot of generalities when it really does depends on one’s case-to-case experiences. No two clients are the same, and there are, of course, always exceptions. While I appreciate and agree with your comment that most people are looking out for no. 1 (and who doesn’t, even I negotiate with my vendors for better prices and services when I can, it’s the nature of doing business) I suppose my real problem lies not with the original specific comments but with several of the generalities they bring up, and what I perceived (perhaps incorrectly, my apologies if this is the case) as a rant that does not offer any real thoughts on a solution. I see a lot of photographers, especially younger photographers who are around the same point in their careers that I am responding to clients in a similar manner to Photographer #3, but perhaps not as tempered with experience as he is. Rather than communicating effectively, they lash out at their own clients and alienate them because they have seen others do so in the past, or worse yet, complain about how their clients treat them or disrespect their IP, while at the same time acquiescing to a client’s every request (which I am most definitely not in favor of) I just feel, (and perhaps we are on the same page here and just not communicating it effectively) that we, as an industry should spend less time focusing on the negativity in past clients, or in ourselves, and expend more effort on learning from past experiences and using them to move forward proactively to find new methods and models of dealing with and communicating to clients.
I am a firm supporter in licensing my work, I am a firm supporter of educating less experienced photographers and clients about copyright. These are issues that need to be dealt with on both the “realistic” front and “attitude” front, or else they will never be resolved.
PS. Nothing wrong with capes, I think they are gonna make a big comeback someday soon
@Luke Copping,
> I have had the luxury of being able to get rid of the clients I found to be too stubborn or set in their ways or simply out for the bottom line.
I have too, but honestly, in this economy… are any of u really being all that picky. I’m taking whatever work I can get.
> I am responding to clients in a similar manner to Photographer #3, but perhaps not as tempered with experience as he is.
I’m nice to all my clients. I treat them all with respect. I just have to go into the relationship knowing they don’t care about my copyright at worst, or they don’t understand it at best. I constantly have to write long emails explaining cost of doing business and where my income actually comes from and image ownership. Some get it, some don’t. In the end most DO get it, but they still want their photos with full unlimited/unrestricted usage for free. It’s just the nature of the market… gimmme gimmme gimmme.
>I am a firm supporter in licensing my work, I am a firm supporter of educating less experienced photographers and clients about copyright.
Me too. I’m also a firm supporter of the reality of what a copyright means. In this country, in this economy, in this legal system, it means very little (at least to me).
In another one of my posts I proposed setting up damages ahead of time, like late fees for a video rental, in your/their contract, thus turning a copyright infringement into a breach of contract. “I agree to pay $x.00 if I use this image beyond X times in x for x long.” Protect yourself in pro-active manner…. don’t count/assume/expect the “copyright” to do squat for you.
ps. I think I’ll go get a cape today!!! Any color you recommend? I’m thinking black. I’m working on my new image. ;)
@Luke Copping,
BTW. I don’t wear a cape.
I don’t thinkI’m dark and antagonizing. Those people wear capes.
:)
@Josh Blumental, Dear Darth, (just kidding), I entirely respect your right to conduct business however you wish, and I further respect your right approach/ignore infringements of your work, in whatever manner you deem appropriate.
Respectfully, your posts evince a fundamental misunderstanding of copyright, its purpose and role. Whether you like it or not, you own copyright in your work, and each of your transactions, other than print sales and wfh, are copyright licenses or copyright assignments.
A photographer’s ability to protect and leverage copyright in business is subject to many factors. At the top of the list, in order of priority: negotiation skills, intelligence, understanding of copyright, clarity of communication (both written and oral), copyright registration.
I suggest that you consider the following approach. It will serve you well. People can pay you to exploit your copyright (reproduce, distribute, alter, display your images) either
(1) before using your images (licensed)
OR
(2) after using your images (unlicensed)
When they use your image with a license, they have the opportunity to negotiate a fee, and they have significant leverage in that negotiation – they can walk away and use someone else’s image if they deem your fee to be unreasonable.
When they elect to use your image without a license, they again have the opportunity to negotiate, but in a settlement negotiation, they have far less leverage. They cannot walk away.
They can pay you before use, or they can pay you after use. If they pay you after use, they are going to pay you more. These are two separate revenue streams for your business.
You need not be litigous in order to generate revenue from infringements. Thousands of infringements are settled each day, without filing lawsuits. Of the lawsuits filed, only a tiny percentage make it to the courthouse steps. Almost are settled. A timely registration provides VERY significant leverage in settlement negotiations, but even without a timely registration, most infringement situations can be settled, some for in-kind compensation, some for small amounts of money, and some for very large amounts – depending on the scope of the infringement and other factors.
Will your images be infringed? Yes.
Does this make copyright irrelevant? No.
Jeff
PS: Photographers owe it to their clients to communicate clearly and to establish and agree upon terms in the advance of making photographs, so as to minimize the prospect of misunderstandings and unintentional infringement.
@Jeff Sed!ik,
Dear OB1kenobe, ;)
>I further respect your right approach/ignore infringements of your work, in whatever manner you deem appropriate.
Ever had a client negotiate an image use, then steal it anyways, willfully + blatantly use it for a corporate logo, and then tell you “go F!%@% yourself… take me to court if you want!”
Have you ever gone to court for an infringement?
What did it cost you?
Did you recover any $$?
Would you do it again??
I’m not saying not to register, I’m saying that you really shouldn’t expect to have the copyright police to come help you!!! (There is no copyright police, right??? I couldn’t find their #! )
Proving infringement is harder to prove than existence of aliens!!
Yes, negotiate before hand, blahh blahh blah. Hope they are not pricks. Hope they want to work with you in the future… definitely talk about what ownership means with your clients…. Yes… ALL VALID!!!. But when push comes to shove… good luck actually ENFORCING the fancy copyright. It is 10x as hard as you think and 100x as expensive.
I’m not saying not to register… Do!!! For sure! I didn’t say it was 100% irrelevant. But heed my caveat… it doesn’t protect you as well as you think it does, and you can’t wear it as a badge of protection. You can’t walk around like a sheriff with a © badge. It’s really like a toy found in my son’s closet: cute, but not very effective.
Signed
Dark/Antagonistic Darth (aka Josh) ;)
@Josh Blumental,
Josh wrote:
“It’s really like a toy found in my son’s closet: cute, but not very effective.”
Josh, that pretty much sums up your perspective, and I have a piece of advice for you: Its not the toy that is ineffective. Its how you use that toy.
http://www.arturban.co.uk/blog/the-etch-a-sketch-king/
After reading the tremendous number of repetitive posts you’ve made here on this subject, I think that for efficiency’s sake, we’ll need to agree to disagree.
I am not a litigous person and yet I generate significant post-infringement revenue from my work, as do many photographers.
If you failed to resolve a previous infringement to your satisfaction, then chalk it up to experience and move on. There will be many others. If your approach is not working, simply change your approach.
Jeff
@Jeff Sed!ik,
I’m not terribly litigious myself, however I have been in court before. Infringement is unlike anything else I have deal with…
Again: please answer the following for all of us….
Have you ever gone to court for an infringement?
What did it cost you?
Did you recover any hard $$? (and not just a “judgement” against someone)
I understand you can negotiate up the wazoo upfront, and hope to settle things that way, but my point is that if you HAVE TO GO TO COURT, which is the last case scenario, you have very little behind you and very little to gain…and because of the way the law works…much more to lose.
Josh,
It’s clear that you’re bitter and angry. You don’t have to keep proving it every couple of hours.
Obviously you had a bad experience with a copyright infringement. But you’ve been around enough to know that there are plenty of examples of photographers who have successfully defended their copyrights. Your experience is not universal.
It sounds like what you wish you had written in your response to Suzanne and Amanda’s query was something like: “It’s very hard to defend your copyright.”
Unfortunately for you, what you actually wrote was, “…you have to file with the fancy office in DC in order to technically own the copyright to your own images…If you don’t file, you don’t own your images.”
You even used the word “technically” — which I’m now thinking is the exact opposite of what you meant. Poor choice of words, dude. You were wrong.
But my complaint here is not with you. I think you are way too bitter and angry to be able to provide rational advice. My complaint here is with the blog, which didn’t edit your contribution, despite it’s factual errors.
@Jeff Sed!ik,
I’m not terribly litigious myself, however I have been in court before. Infringement is unlike anything else I have deal with…
Again: please answer the following for all of us….
Have you ever gone to court for an infringement?
What did it cost you?
Did you recover any hard $$? (and not just a “judgement” against someone)
I understand you can negotiate up the wazoo upfront, and hope to settle things that way, but my point is that if you HAVE TO GO TO COURT, which is the last case scenario, you have very little behind you and very little to gain…and because of the way the law works…much more to lose.
[…] A Photo Editor – Ask Anything – Simple Image Rights Explanation This entry was posted in Copyright. Bookmark the permalink. ← ENRIQUE METINIDES: […]
@Josh – Most infringement claims (before suit) and lawsuits resolve as settlements because both sides recognize that it is expensive to litigate. Settlements are almost always confidential but my clients have found it worth going after infringements, recovering more than it costs to pursue their claims. My law practice has grown every year and doubled this year from representing photographers primarily for infringements, and we’re adding attorneys to our firm to help.
@ Murat – No reason to push the 3 months registration deadline. File early enough so the defendant infringer won’t have an argument about whether your registration was timely.
Sorry that I can’t respond more but I’m in the middle of trying to resolve another infringement matter for a client!
@Carolyn E. Wright,
Could you give me a rough idea as to what fighting an infringement costs, using your firm? I just need a rough estimate… $10k $20k $30k
Any ideas to a percentage of wins/loses for the client?
Average settlement amount after atty fees?? (to know at what point his is worth pursuing)
Do you take cases on a contingency basis, or do you charge like normal attys… per hr regardless of outcome?
Depending on the answers, I might need you in the future…
thanks
:)
One of the first thoughts that came to my mind on this was the group of photographers who challenged National Geographic Magazine on the issuance of those compilations CDs. While there were many twists and turns to that, and some coverage from PDN, after everything was finished those photographers lost. I cannot imagine how much money those guys spent fighting National Goegraphic. I also have to imagine that the challenge caused a de-facto blacklisting of those photographers, since I have not seen any of their images published since that case went to court. So while one might win or lose in court, should a photographer be willing to give up their career to prove a point?
I suppose another way to look at this is that potential clients (or infringers) with their own permanent legal staff are likely financially beyond challenge under the current US legal system. The costs of challenging are high enough to be a deterrent to filing any claims, whether or not the laws are on our side. Arbitration is another option, and I have used that successfully, though the other party needs to agree to that.
If one of my images is used without permission/payment then I send an invoice. Why bother with all the copyright fight when you can call the head of finance and explain what happened and why they have to pay.
If you have never tried this, wake up, the word copyright never enters the conversation. It is like this – used a photograph you don’t own, it is mine and as such payment is required, there is a xx% discount for prompt payment in 30 days, if not paid after 60 days we sue for the non payment of an invoice.
You all forget this is about business not art.
As for the original question: be clear and concise.
– All photographs remain the property of the photographer
– Client may use them:
– only for their business promotion
– not after Month day, year
Yes you copyright your photos, but in the contract you assert your ownership of them as property. The lawyers don’t like this approach because it can be settled quickly without complex copyright disputes.
Yawn
@victor, wrote: “yawn.”
Vic, sounds like you need to grab some coffee. I’m not following you, at all. You suggest setting aside copyright, and simply declaring the photographs to be your “property,” and sending an invoice.
Multiple issues there.
Without “copyright,” the photographs are not your “property,” and anyone could use your photographs for any purpose without your permission.
Unauthorized usage of the photographs is unauthorized usage of your copyright in the photographs, which is copyright infringement, a violation of federal law. Federal law makes it illegal for others to use your photographs without your permission (with exceptions), and provides you with remedies in the event that unauthorized use occurs. Those remedies are the right to stop the infringement and to seek compensation.
Your right to be compensated for that unauthorized usage is entirely dependent on copyright.
As for sending an invoice — not a good idea. The infringement could be 5, 10, 50, 100, 1000 times greater than the instance of infringement you’ve seen at the time of the invoice. The amount on your invoice may be interpreted as your valuation of the maximum damages owed you by the infringer. Settlement discussions and offers are far more prudent than submitting an invoice, for a number of reasons too detailed to address here.
In your suit for non-payment of an invoice, the nature of the transaction will rule. If the invoice is for unauthorized usage of copyrights, it is a copyright infringement matter, and you are back to square one.
Consult an attorney before submitting an invoice in response to a copyright infringement.
Jeff
@Jeff Sed!ik, Well Jeff, you missed the line where I said you should copyright your photos.
While you make a good point about the scale of the infringement, that is called research. Then your invoice can match the scale of the abuse, maybe even an invoice for every abuse.
The suit for nonpayment is exactly that, the onus is on the payee to prove they have ownership, not on the photographer to prove it. My advice is from a barrister in the UK.
The part you miss is most companies do not want to enter into a long and expensive case, so a conversation with the person who owns the money CFO etc will get your invoice paid with a minimal pain. I have had lots of infringements and the only one that was not settled was where I shouted copyright.
You can spend years in court, I would prefer to build business relationships and get pad good money for creating great pictures – innovate don’t litigate.
@victor, We are generally in agreement, as I did not suggest litigation. I suggested settlement discussions, followed by a settlement payment.
The law in the UK vs US regarding settlement negotiations is somewhat different, and the law in the UK might support your suggestion that a photographer is able to sue for breach on a copyright infringement merely by submitting an invoice to an infringer. This differs markedly from my understanding, and my experience with infringement in the UK — also with advice I’ve received from my UK attorneys. In the US, attempting to disguise a copyright claim as a breach claim is not prudent. In the US, submitting an invoice may result in a payment, but when it doesn’t, the photographer is unlikely to be able to pursue a breach claim, and his/her position may be somewhat weakened.
However, if it works for you in the UK, I wish you the best with it.
Again, we are in agreement that a photographer should take steps to settle infringements and avoid litigation.
Fortunately, whether in the US or the UK, the depression of a shutter button is the only action necessary to “copyright” an image.
Jeff
[…] be confusing when it comes to photography, luckily, APhotoEditor.com has broken it down for us in this post. (Refinery29, […]
I read this several days ago and want to ad some thoughts on the subject. I wonder how many have gone to http://www.copyright.gov/ or http://www.copyright.gov/fls/fl107.html and read the information. I don’t see how the information is confusing. It reads very straight forward.
I also wonder how many are members of any of the professional associations that exist. They have information on copyright. I know PPC, PPA, ASMP, and APA all have information on copyright. There are resource libraries that have documents about usage and agreements that keep it simple for clients. I know the associations have experts to assist with problems.
I am sure part of the issue is how your conduct business with clients, if there is any ambiguity they will use it to their advantage not the photographers. I have to say, just because someone uses and image without your permission doesn’t mean you don’t own the image. You own a car and someone breaks into stealing everything inside that isn’t bolted down. Just beacuse it was stolen doesn’t transfer ownership.
I would say that if you discover someone is using an image send them and invoice. It is good business. There are lots of good buiness pratcies that have been noted by others that work to resolve issues with out major costs assoicated with going to trial on a lawsuit. Going to court for infringement should really be the last resort and not the first.
Keith’s absolutely right
Caribbean Photography Tours
If you have been following this, you may have noticed I’ve been speaking about the reality of copyright ownership in my world, my reality, my here and now. I’ve had to defend it from onslaughts by others clearly with other realities. For example, I said to myself, “Who is this guy with balls big enough to switch a “L” with an “!” in his name? Why is he talking down to me as if I was a child that does NOT understand things?” I researched a bit last night and figured out why… Jeff is an integral part of the big photo industry, and I’m just a photographer happily working outside LA, NYC, SF or Chicago… I think it’s a class issue…
I am part of the 99% of photographers, Jeff is in the 1% Elite. I don’t work with Nike, Fedex, Sony, ATT&T, Blue Cross and others, I don’t have ginormous awards, and I don’t use the word “repertoire” in my About Me page. Jeff does. Josh doesn’t. Simple. Let’s use the analogy of the French revolution if we could; Jeff is Marie Antoinette and I’m one of the poor, hungry masses. He has been telling me to just “Eat Cake.” Where do YOU fall? Are you the 99% or 1%…… honestly?
I am not consultant/expert witness making money touting the virtues of the wonderful, inalienable rights some federal law, like Jeff does, nor an attorney who negotiates these cases (ie. Carolyn Wright who’s business “has doubled this year from representing photographers primarily for infringements, and (is) adding attorneys to (her) firm to help.”) I’m just a guy in Utah, making a living providing images to my clients, wether it be a puppy, baby, products, houses, or whatever. I do not profit from sharing/protecting my views. I was actually ASKED to share my views and experiences (and I’m only still here because really don’t like to be told I’m WRONG, especially in a patronizing & condescending way).
In discussing the matter on this blog, I have felt as if I’m discussing “stuff” with a Mormon missionary at my door. All I’ve heard is someone selling dogma that really doesn’t apply to me. Maybe if I was the 1% it would, but not in my world. I can’t tout Copyright protection…. I can’t prance around in my pink speedo (analogy I used the other day) and yell “YOU CAN’T TAKE MY WORK, IT’S COPYRIGHTED!!!” In my reality, if I did that (again), I would be broke/unemployed (since no one would work with me) and get stuck with a huge bill from my attorney.
Telling us to register and tout our “copyright” does not work, it just makes things worse!! I know I’m not alone feeling this way… I am one of the 99%. If we’re not actively working with Nike, Fedex, Sony, ATT&T, or Blue Cross, what exactly do we do to get $ for our images, especially when someone (a generic small/medium biz in Middle America) just takes them?
I propose these well paid experts give us poor masses some real food, and not just cake. Don’t hit me up selling “eternal, blissful salvation, on my own planet, with as many wives as I want,” as I (we) just need a realistic way to deal with the reality of image ownership and licensing that doesn’t involve attorneys, consultants or a stint federal court…
PS. I still have not heard from anyone who has used this law and actually won (criteria being walking away with real, hard cash… a nice net profit). Anyone?? Anyone??? Please share…!!!! Or is the Copyright like nuke that kills all parties involved? (that is, except for the attorneys and paid experts/consultants involved)
Josh Blumental
Ido not use words such as “répertoire” , lol! yessss that line is funny. The French revolution analogy too. I hear you Josh.
@murat arslan,
Thank you. Yes, I know that my views are not “correct” in the purest legal terms (facts). I just know that like poor grammar, even attorneys use “You ain’t got’s no chance in hell to see’s a dime outa that there lawsuit o’ yours, cowboy!” The facts are X, Y and Z.
My reality says I don’t really have much recourse when someone takes my work. If they say “F#!^@ you and the horse you rode in on!!” There is no practical way to recover lost income. I can’t call the copyright police. I can’t sue them. And if I do sue them, the only one who wins are the attorneys and hired consultant/experts.
Does anyone here have any ideas???
How do we write contracts that pre-state agreed to damages prior to an infringement.
How do we keep the attorneys/experts out of the loop and our pockets????
Josh
Maybe we should all switch our billing statements to something like:
Everywhere and forever usage of one photo – $10,000
Discount for only wanting limited geographical and limited time usage – $9,500
TOTAL: $500
Seems like such a bargain when put this way doesn’t it? :)
Thanks everyone for calling “Established” photog 3 on his very obvious misunderstanding of artists rights. After reading his first argument (Part A-1) I was done with him…credibility shot :/
[…] of all, you should keep in mind that you own your photographs from the very split second you created them. And unless you have given or will give the copyright […]
Hello,
I’m having a problem with a collectors’ forum of which I’m a member.
There, I’ve written articles and many posts, accompanied with images, taken by myself with my photo-equipment, of pieces belonging to my private collection, then posted to illustrate my articles.
In these days, I’m leaving from that Forum and asked the Administrators to remove my articles and pictures, since they’re my property, both artistic and intellectual.
The reply received is that the Forum is based in the USA (although of italian property/administration), and that the law is different from my country (Italy) so, since the internal Forum Rules say that pictures cannot be removed, and under any reasons, I’m kindly asking if they’re right or not.
Looking forward to hearing from you,
best regards,
Elmar Lang (Italy)
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