[by Liz Ordonez]
“Should I file an infringement law suit?” This is a question most photographers have to wrestle with at various points in their career, especially now that most images end up online. Unauthorized use of our images will rattle even the mellowest creative. So it went when I encountered my first images blatantly ripped off by none other than a publishing start-up firm. Fifteen years and a handful of Federal lawsuits later, I’ve learned many valuable lessons, which have kept me out of court and put money in my pocket! Here are my top three lessons:
Don’t wait for an infringement to establish your “Infringement Protocol”
Having a well thought out course of action before an infringement happens is like having insurance; you hope you won’t have to use it, but it’s there when you need it. If you earn a living from the licensing of your images, an Infringement Protocol should not be optional because it affects your business, household, clients, colleagues and our industry.
It’s hard to keep a clear head when you’ve discovered an egregious infringement, but remember, anger is a terrible counselor. Carefully reviewing options and setting reasonable goals is easier to accomplish when you have all your wits about you. It’s best to make decisions when we’re calm rather than emotionally charged. An impulsive or ill-advised move could cost thousands of dollars (per copyright law the losing party can be forced to pay the attorneys‘ fees and costs of the prevailing party). So, it’s important to choose wisely. Clearly define goals, know your limits and the steps you are willing to take. Talk through a case study with others who have experience and familiarize yourself with Copyright law. ASMP’s copyright tutorial and free downloadable PDF, The Photographer’s Guide to Copyright are useful primers on the topic.
Prepare to go to war, but exhaust all diplomatic solutions first
Infringement lawsuits are not always about money, sometimes they’re a matter of principle. But, it’s difficult to pay bills without cash. Litigation may be the best and only road to settle a matter, but even a win in court has many pitfalls. Defending your intellectual property in our legal system is a risky, expensive, time consuming, energy draining, mind-bending endeavor! Do everything you can to avoid it.
If you do pursue a Federal suit, it’s important to know that judges in the Federal Circuit may or may not fully understand copyright law as it pertains to your specific situation and may rule inappropriately. You don’t have to be right to win or wrong to lose. Proceed with litigation only after you’ve diligently exhausted all diplomatic avenues and are prepared for the financial, emotional and intellectual cost of defending your copyright.
Preparing for war begins prior to an infringement and includes keeping written agreements, filing timely registrations with the Library of Congress, maintaining a searchable image library and collecting multiple samples of unauthorized uses.
There are plenty of crooks out there, but in general, most infringers do not maliciously intend to harm photographers. They chose your image because they like it and want to attach its visual value to whatever they’re promoting or selling. Ranting on social media about the evil that’s been done to you will not open the door to a successful negotiation with the infringer, but placing yourself in their shoes and trying to understand their needs & motivation will get you closer to putting money in the bank.
Based on my experience, most infringements have the potential to be amicably resolved because photographers want their images to be used and the client wants to use the photographer’s images. Focusing on that supply and demand scenario, will help you to pursue a win-win outcome.
Consider a trusted third party to handle negotiations
As uncomfortable as beginning a dialogue with the infringer may sound, it is not nearly as uncomfortable as suing the pants off of them! As photographers we want to create and be paid a commensurate fee for the use of our work. We don’t want to engage in conflict, especially when it has the potential of ruining our relationship with a client or a potential client.
If resolving conflict and negotiating fees is not your strong suit, don’t let that stop you from collecting a fee when your images are used. Enlisting the help of a trusted friend, colleague or company with a proven track record in resolving conflict, negotiating and debt collection, allows you to pursue payment while you continue to do what you love best: create! Companies, such as ImageRights International, Pixsy, and Copyright Defense League offer recovery services for a fee. Some attorneys may offer these services, but remember: lawyers litigate; it’s what they do!
When faced with the question of whether to sue or not to sue, having a pre-planned Infringement Protocol and being prepared for a lawsuit after attempting to negotiate a fee for the use are invaluable assets in choosing the road that is best for you. By not shying away from these inevitable situations, and instead facing them head on, you will gain confidence in successfully defending the value of your work, and that is something that benefits us all.
Liz Ordonez is a Florida-based photographer specializing in architecture and interior design. Her work, known for its elegant style and attention to detail, has been published worldwide since 1997.