Note: If you missed ASMP’s Business as unUsual webinar, You’ve Been Infringed, Now What? featuring Bruce Bellingham, Peter McCall & Scott Burroughs, you can watch the recording at: www.vimeo.com/153457379, Password: ASMPinfringed.
Many people you know are eager to recommend a good lawyer, but forming an attorney-client relation for a copyright infringement action presents some unique issues. Most people cannot afford to pay hourly legal fees. The Copyright Act provides special remedies and the possibility of shifting the prevailing party’s own legal fees to the losing party; thus, most photographers should seek a lawyer who will represent their cause on a contingent fee basis. In such relationships, the lawyer gets paid from a portion of the award if you win your case, but she will not charge you fees if you lose. In effect, by representing you, the contingent fee lawyer is making a business decision similar to offering a forgivable loan measured in the currency of her professional services.
Because they understand the possible special damages provisions of the Act, only lawyers with some experience in copyright enforcement are likely to accept a contingent fee arrangement. They recognize the accused infringer’s defenses, and they are used to judging these risks. This means you should approach the lawyer somewhat as a loan applicant approaches a banker: you must sell your case to them. There is no better way to show that you are serious than to come to a consultation with all the documentation necessary and a basic understanding of what the process will entail.
The key to a successful first meeting is bringing what the lawyer needs. This must include:
1) the images which you believe have been infringed;
2) the copyright registration certificate for these images and any evidence you have of your depositing the images with the Copyright Office (if you registered them);
3) the works that you believe show that the potential defendant unlawfully copied your works;
4) any licenses or other paperwork if you ever had business dealings with the potential defendant; and
5) any evidence of your monetary loss such as licenses you issued for the infringed work.
If you have additional documentation about the uses the infringer made of your work, or its practices of infringing others, those will all be welcome. While not necessary to prove copyright infringement, the lawyer will also be very interested in evidence of your experience and stature as a professional photographer such as a detailed resume, awards, etc. as well as evidence that you take photographs for a living such as business incorporation, agency representation, etc.
Once you find a prospective lawyer with copyright experience, she will set up a meeting to review the facts of your case and your expectations. Sometimes, if a firm is specialized, a paralegal will conduct an initial review to get your papers in order and to provide a summary to the lawyer. If so, provide as much information as possible, keeping in mind that an attorney will review the summary and, if it looks like you have a solid claim, call you back for another meeting.
During your meeting, make sure to talk about money. No one will be offended. To start with, will the firm charge you for the initial consultation? Generally, a lawyer who wants such payment probably does little copyright work for individuals. Contingent fee counsel may still require you to pay out of pocket costs, and they will never pay you for your own lost working time or for your expenses. Ask about all potential financial and time burdens. If you decide to bring an action against an infringer, you must feel comfortable with how your claim is being handled and be prepared for the stresses and expenses of litigation.
Once your attorney reviews the documentation, you should have a frank conversation about where that attorney sees your case going. Some attorneys may see your case as a short term settlement matter of modest value. Others may see your case as a high-worth investment worth taking to trial. Either of those approaches may be acceptable to you, but you should understand how that attorney views your case before you make any commitment. Do not be shy about asking any attorney you interview about her plan. For example, all your friends may say that your infringement claim is a goldmine, but a lawyer may want to settle for $2,000 and believes that, if push comes to shove, you should not bring suit. That lawyer may be right or wrong, but you should not retain her unless you accept her reasoning.
Don’t be afraid to shop around. Valuing a case is not an exact science and equally competent lawyers may have different risk tolerances. Some lawyers will not want to represent photographers who have not registered their works because registration is needed for statutory damages and an award of attorney’s fees. No sensible lawyer will mind you politely thanking her for her time and saying that you want to speak to others.
The most important thing you can do while searching for an attorney is listen closely. You are looking for an attorney who understands your claim and who has a similar vision of how it will work out. The attorney is looking for a client who she believes will be reliable and organized so that she can focus her energies on the legal aspects of the claim. Since the attorney is looking to invest a great deal of time and effort in your case, they also want to see signs that you are looking to do the same. Most lawyers are quite worried about a misunderstanding between the client and herself regarding expectations. It is paramount to come to an understanding of the goals, monetary and time commitments, and other stressors associated with the process before you decide to retain an attorney to enforce your rights. For better or worse, your relationship with your attorney is going to be a business transaction. So approach it, from the start, as you would any other business meeting.
Bruce Bellingham has been an attorney at Spector Gadon & Rosen, PC, in Philadelphia since 2001. His practice is approximately 20% copyright and arts representation and 80% general commercial litigation. Before attending law school he was an Assistant and Associate Professor at Florida State University for 15 years. He is active in the Philadelphia Volunteer Lawyers for the Arts which named him “Volunteer of the Year” in 2009.
Peter McCall is an associate at Spector Gadon and Rosen, P.C. During law school, he concentrated his studies on intellectual property and business with a special focus on protecting the copyright and trademark interests of individuals and small businesses. As a practicing attorney he continues to assist small and growing businesses with the many challenges facing them in and around the Philadelphia area. He is a contributor to various media outlets, publishing articles on issues surrounding the preservation of artists rights under the U.S. Copyright Act.
Scott Alan Burroughs is a partner at Doniger / Burroughs in Venice, California. His firm is passionate about protecting the rights of content creators, and handles more copyright and artist disputes than any other firm in the United States. He has obtained numerous six- and seven-figure results for his clients, and has prevailed before judges, juries, and courts of appeal across the country.
Watch the recording of their Business as unUsual webinar, You’ve Been Infringed, Now What? at www.vimeo.com/153457379,Password: ASMPinfringed.