The American Society of Media Photographers provides this forum to encourage the development of critical skills and to foster new ideas. Our goal is an informed and savvy professional photography community.

Advancing a Small Claims Solution to Infringements

[by Tom Kennedy]

The arrival of the digital age has brought with it a series of opportunities and challenges that are creating a world of paradox for independent creators, including ASMP members. On the one hand, digital technology aids and abets the expression of creative vision in ways unimaginable even just a generation ago. On the other hand, the same technology has fueled a great expansion of the possibilities for infringement as digital images get appropriated and shared without credit or compensation across a plethora of social media platforms.

The ability to control work and benefit from one’s creation has been a part of the copyright system since the founding of the Republic. Indeed, James Madison, in the Federalist Papers described the concept of copyright as one in which “the public good…fully coincides with the claims of the individuals.” The system was designed to facilitate the expansion of public discourse to produce an enlightened citizenry while also offering sufficient incentives to creators to continue to create work facilitating twin goals of “progress of science” and free speech.

Since its inception in 1790, U.S. copyright ’s original terms have been redefined and expanded to address new forms of media expression such as photographs, movies, and sound recordings, while also acknowledging the implications of new mediums of distribution including broadcasting and now the Internet.

Given the expansion of infringements fueled by the Internet, it is essential that the copyright laws be updated to account for the ways in which the media landscape is being reshaped by digital technology. It is equally imperative that such updating includes the ability for individual creators like ASMP members to secure effective remedies to address infringements.

Going forward, ASMP believes that there is a need for the creation of a small claims tribunal system as an alternative mechanism for dealing with infringement. Many infringements that do not rise to a sufficient threshold to incentivize attorneys to bring cases to federal court still constitute a significant income loss to the creator.

This is the discrepancy we want to address.

We believe photographers, among others, need a mechanism that promotes speedy, fair, and low cost adjudication so that effective remedies are within reach for all creators.

We are working now with Michael Klipper, a Washington D.C. attorney to develop a framework for this proposal. We see it as a crucial element as the House Judiciary Committee continues discussion of solutions to be included in future copyright reform legislation. In developing a framework that would pass muster with the U.S, Copyright Office in concept and execution, and be ratified in law by an act of Congress, we are working with groups such as the APA, DMLA, GAG, NPPA, and PPA representing all manner of visual artists. We believe full development of an effective remedy can best be accomplished if all visual groups work toward a consensus position that is then articulated as the basis for legislative action.

While other elements of copyright reform legislation previously addressed are also under discussion, we see effective remedy for infringements as central to addressing imbalances that left unchecked would propel the entire photographic community toward the cliff of market failure.

ASMP Executive Director Tom Kennedy is an internationally known visual journalist with 35 years of print and online journalism experience including positions as Managing Editor for Multimedia at The Washington Post and Director of Photography at the National Geographic Society.

By Tom Kennedy | Posted: February 5th, 2016 | No comments

Making the Most Out of Your Attorney Search and Meetings

[by Bruce Bellingham, Peter McCall & Scott Burroughs]

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.

 

By webmaster | Posted: February 4th, 2016 | No comments
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ImageRights for Copyright Enforcement – the Better Alternative to DIY Infringement Management

[by Eric Bowers]

After a job layoff in 2013, I found myself more dependent than ever on income from my photography. To build up my freelance business, I began researching search engine optimization (SEO). In that process, I discovered that my photography was already scattered about the web, but on business and commercial websites for companies I had never heard of, and to whom I had definitely never licensed usage rights.

Many creators have bemoaned the abundance of photographs in existence now, putting downward pressure on photographers’ pricing power with clients. Although this is a problem that remains for all in the business, there is also much higher demand for quality photographs now in this age of the Internet, as can be seen by the rampant unauthorized usage of many professionals’ copyrighted works. Many users today assume they are entitled to exploit whatever Google shows them in an image search result, but with active copyright enforcement built into one’s workflow, it is very realistic to mitigate the lost income from image piracy, and to secure another steady income stream for one’s business.

Both out of frustration and a need to make money off my work, I began making some surprise visits to the offices of local commercial infringers – invoice in hand, along with W-9 tax documentation and my Square card reader. I got results, but constantly deferring my own life, as well as the other aspects of running a photography business to deal with infringements on my own was a soul-draining ordeal. Plus, often, when I tried to settle a matter without formal legal representation, the infringers acted as if I should be grateful to them for removing the offending photo, forgetting the fact that many of them had already been exploiting my work for quite some time – a year, two years or even longer.

Hoping to free up more time for my business and to increase my odds for monetary recovery from copyright infringements, I decided ImageRights was an obvious choice.

Since getting started with ImageRights over a year ago, my income from copyright infringement settlement money has become the most consistent and reliable income stream for my freelancing operation. It is not an overstatement at all when I say that having this stream of income is a game-changer – it has allowed me to weather the inevitable troughs in assignment and stock license sales and still meet my fixed expenses.

Now that I’ve started really paying attention to all the ways my work is being used, I’ve noticed that the range of copyright infringement cases can vary. When the infringer is one of those “Get Rich Quick in Real Estate” seminars, motivational speakers, or clickbait websites, utilizing ImageRights to monetize these unauthorized uses of my work is a gratifying experience. I’ve also noticed a major recurring theme in that many infringements come from website design firms or freelancers who land their clients in legal hot water because they are accustomed to harvesting “free” website photography and graphics from Google Image Search. That bargain-basement quote from a site designer is only affordable if the clients don’t get hit with infringement claims resulting from their new business website being festooned with copyright infringed photography and graphics.

But the spectrum of cases that ImageRights finds also includes more innocuous uses, such as a church lady convention, promoted by a website that was probably done for free by one of the attendees or their kids. Though technically still an enforceable infringement, I see these cases as less of a priority so I take extra time to assess each case ImageRights brings to my attention and only approve those I think are appropriate to pursue.

Because stock agencies such as Getty Images build a clause into their contracts with photographers giving them the right to decide which infringements to pursue, how to pursue them, when to settle, and also lets them keep a hefty percentage of any recoveries, I have found that is in my own best interest to maximize my direct stock image sales by tending to my own SEO, while also having the “hedge to the downside” of ImageRights and infringement recovery built into my operation.

Clearly, infringement settlements and the threat of litigation are an imperfect solution for all involved parties, but being able to quickly monetize copyright infringements has become a vital part of my own business, and it can make all the difference in keeping the lights on during the occasional slow period in business.

Eric Bowers is a Kansas City based architectural, real estate and commercial photographer with a substantial collection of Kansas City stock images including documentation of downtown Kansas City’s revitalization, the construction progress of the Kauffman Center for the Performing Arts and the final years of open-outcry wheat futures trading at the Kansas City Board of Trade. See his work at: www.ericbowersphoto.com.

By webmaster | Posted: February 3rd, 2016 | No comments

Working with the Copyright Defense League

[by Tom Salyer]

Back in 2013, the Copyright Defense League invited me to submit images as part of their testing and ramping up process. I don’t have a huge image library but I have some 2000 or so stock images out in the world so I thought “What the heck, why not?”

I gave CDL thumbnails of my stock images and they ran them through their system. They told me that their computer would put out a report of all the hits, and then someone from CDL would go through that list and cull it down to the ones they feel can be successfully pursued. They’re not going to go after someone’s grandma or anything like that. They’re really looking for unauthorized commercial uses in the United States.

Within a month or so, they sent me the first print out of potential infringements they wanted to pursue and then, every month or so after that, I’d get another one. Each spreadsheet has a column with the image number, a web link for the infringement and fields where you need to confirm that it’s really your image, tell them if it’s registered and if so, what the registration number is, and whether this use was authorized.

In some cases, since these images were licensed through agencies, I wouldn’t know whether the use was authorized or not, so I’d have to ask the agency to double check. All in all, it took me a few afternoons to go through and fill out the spreadsheets.

Luckily, answering the registration question was easy for me – I register pretty much everything! Since going digital, any time I shoot anything – even an iPhone picture of my cat – I bring it into Lightroom, where I have an action that automatically creates a thumbnail for the Library of Congress. If it’s a big job, I’ll register it right away but no matter what I send a registration into the Copyright Office every couple of months. So, for my digital images, all I had to do was search those thumbnails for the file name and I could easily pull up the registration number for that batch.

I started registering everything in 1998. Back then, I’d put all my chromes on a light table, shoot a negative, send that over to Eckert Drug Store and have them make 2 prints – one for me and one for the Copyright Office. So all my film work was registered but it was little harder to track the registration number for the specific images because I didn’t use the best naming and tracking system in those days, but it was still manageable.

Pretty soon, I started getting updates about the settlements they were pursuing and then the checks started showing up. Some of the settlements are small – $300 for a car dealership that lifted one of my sunset photos – but others have gone up to $7500.   Once they deduct their expenses and we split what’s left, I’m getting around 27% of the total settlement. By Spring 2014, they had brought in around $23,000 in total and I got around $6000 of that.

To me, that’s very satisfactory. These aren’t high value celebrity images and I don’t have tens of thousands of images out there. It was a minimal amount of effort on my part to get this money and it’s all for uses that I never would have otherwise even known about.

The real key here is registration. If I hadn’t registered my work, none of this would have been possible. ASMP was talking about this back in ’97 or ’98 and that’s why I started registering all of my images. The only tool I have as the little guy is registration.

I continually run into people who say, “Oh it’s too much work.” or “I only register my best images.” I say, you’re putting everything into your Lightroom archive anyway, just set it up to run thumbnails every couple of months –make it part of your workflow. It’s really pretty easy to do.

If you’re one of those people who haven’t started registering all of your work yet, just start doing it now and make it a habit moving forward. Don’t worry about your archives, just start with your new work. In a few years, you’ll have a pretty big body of registered work.

I say that I register because it’s the only tool I have as the little guy, but as the little guy, going to Federal Court is a really big deal. It’s time consuming and expensive, and it’s just not worth it for smaller infringements. It’s great to have CDL and their law firm take care of this for me. I’d rather get a few hundred bucks from some car company that steals one of my photos and see them pay for that use than get nothing and let them get away with it.

Tom Salyer has been a professional photographer since 1973. He started out as a staffer with a small daily in Seattle, then moved to Miami as staffer for United Press International, shooting everything from football to space shuttle launches and international news. In 1990, he started freelancing for Time, Forbes and other publications, eventually launching his own business as a still photographer and multimedia producer. Today, he also serves a wide range of clients as a location sound recordist.

By webmaster | Posted: February 2nd, 2016 | No comments

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