Glen Carner's First 8 Questions for Matthew Chan

[Glen Carner]

#1 - Have you ever seen an attorney letter that you felt was reasonable and appropriate?  Can you provide a copy and who was the attorney?

#2 - Are there any attorney letters that don't get posted on the ELI website because you "approved" of them?

#3 - Under what circumstances do you feel an attorney should be used to settle a copyright claim for a photograph?

#4 - Do you make any distinction between a person downloading a song for personal use or a business using an image to make profits?

#5 - Do you have any suggestions on how "for profit" use can be compensated after the image is already being used if you disapprove of the current law and method?

#6 - I have heard you mention $200 for innocent infringement claims as a settlement amount.  If a specific photographer agreed to only ask for this amount in the recovery, would you support that?

#7 - If you could change one small thing that about how agencies collect money retroactively for commercial use, what would it be?

#8 - Do you know of any agency, photographer, or author who is using a recovery method that you felt was acceptable and what was it?

My apologies if you had already posted some of this in the other threads.

[Jerry Witt (mcfilms)]

I'll bite on a couple of these:

>> #6 - I have heard you mention $200 for innocent infringement claims as a settlement amount.  If a specific photographer agreed to only ask for this amount in the recovery, would you support that?

For me, this could work with a couple caveats. I would expect a pointer to the page where the image was being sold for $100 or so. I would also like to see proof the photographer had registered the images individually prior, that they assigned the right to collect to the agency and proof of registration was provided. In the vast majority of these cases, this can not be done and that is one of the reasons this is such a contentious issue.

#7 - If you could change one small thing that about how agencies collect money retroactively for commercial use, what would it be?

Documentation. Seriously, if you expect people to pay money based on a claim, that claim needs to be well documented. Again, the industry doesn't seem willing to do this.

[Oscar Michelen]

Glen: I will answer your questions from my perspective later this evening.

[Oscar Michelen]

Glen: Here's something you apparently have not had for awhile, some sound, free legal advice:

#1 - Have you ever seen an attorney letter that you felt was reasonable and appropriate?  Can you provide a copy and who was the attorney?

I deal with C &D letters all the time, both in issuing them on behalf of clients and in responding to them on behalf of clients. Many are forceful and direct but do not go over the top into the land of bullying and extortion. The proper balance is not that hard to achieve. Just don't overstate your case.  For example,  I only use the word "theft" when I have proof that the target of the letter "intentionally took something" that belonged to my client. That's what "willful" means by the way - they meant to do it or acted so recklessly that they show they don't care about whether someone owned the property or not. It's a fairly clear standard.     

#2 - Are there any attorney letters that don't get posted on the ELI website because you "approved" of them?
To my knowledge, Matt publishes whatever letters he receives and which the recipient has allowed him to publish. We want to inform on this site - its not an attack site. All over the place we repeatedly state that we do not condone copyright infringement.  We advise everyone to take the images down immediately once they receive a letter. I suspect we would give a lot of space to praising someone who is doing it fairly and in a balanced fashion. But for some reason, the digital image industry, following Getty's lead, insists on making claims that are not applicable and asking for amounts of money that are legally insupportable. I am certain that the slightly softer tone of the more recent Getty and Masterfile letters is from the effect of the folks who contribute regularly to this site. 

#3 - Under what circumstances do you feel an attorney should be used to settle a copyright claim for a photograph?
For me that answer is simple - EVERY TIME! I mean I have three kids to put through college for crying out loud.  But the real answer to this question is the same for IP as it is for any other form of claim.  For minor matters (and I think the alleged infringement of a few digital images is a minor matter in most cases) the IP holder should ask his lawyer for a form letter they can disseminate and see if that gets the person to C & D and settle.   Some matters are major and require a thoughtful letter from a lawyer that (1) accurately and efficiently sets forth the relevant facts and law (2) will not embarrass the lawyer or the client if litigation becomes necessary and (3) does not violate any laws or ethical rules. But Glen, this is not hard stuff really.  I mean I teach my first year law students how to craft a C& D letter and the chapter on it in the text we use is barely 5 pages long (the shortest in the book), if they can get it, practicing lawyers should be able to get it.   And while we are on the topic of younger practicing lawyers, I disagree with your comment about seasoned lawyers "drifting away from the law." Experienced lawyers know that the law is not always applied exactly as written; that courts have a wide range of latitude in most cases and that maximum penalties are reserved for "maximum cases." Experienced lawyers have perspective and can more readily tell which battles are worth fighting and how best to fight them. Experienced lawyers (hopefully) have enough confidence and business to look a client in the eye and say "That's not right, I won't do that. And if you want a lawyer to do that, you are going to have to find another lawyer."  I have a conversation like that fairly regularly with clients and prospective clients. I have every right NOT to take a case if I disagree with a client's requests or demands. Clients come to me for advice on how best to handle a situation and my reputation helps get them fast and fair results. When we say that a lawyer "represents"a client that's what we mean - we stand in their place and the client and its case take on the lawyer's characteristics. As much as the young lawyers you have employed have caused some harm to their own reputations by their overreaching conduct, they have also harmed HAN's reputation. While Getty can take the hit because of their market share, can HAN continue to be berated all over the internet because of the methods you  and your lawyers employ? 

#4 - Do you make any distinction between a person downloading a song for personal use or a business using an image to make profits?
OF COURSE! Who doesn't know that a song is copyrighted? Whether its for personal or commercial use everyone knows that music is copyrighted. Conversely, who would believe that a thumbnail image that pops up on an internet search on a site that is screaming FREE IMAGES - FREE WALLPAPER is copyright protected? Also, you can search the copyright office for a film title or a song title and you will likely find it. These digital images are filed (when they are filed) en masse normally in digital databases that are not searchable by description. You type in "Palm Tree on Hawaiian Beach" and you will not necessarily find Mr. Tylor's images.
   
#5 - Do you have any suggestions on how "for profit" use can be compensated after the image is already being used if you disapprove of the current law and method?
I do not disapprove of the current law (except that I feel the US should follow the UK method and allow for no damages if the infringer C &D and can prove he did not willfully take someone's IP.)  See above for the answer to the balance of your question.

#6 - I have heard you mention $200 for innocent infringement claims as a settlement amount.  If a specific photographer agreed to only ask for this amount in the recovery, would you support that?

Yes. Provided the image was registered, otherwise they should be required to pay only the fair market value for the use they made of the image. That does not necessarily mean the high license fees that Fotoquote or Getty  or Masterfile of HAN employs.  But what can the image be replaced for on the open market. 

#7 - If you could change one small thing that about how agencies collect money retroactively for commercial use, what would it be?
See above but especially stop threatening people with the maximum in statutory damages (you know you will never get it) and criminal penalties (you know its not applicable at all). I don't doubt that its a successful method but it's just plain wrong.  Anyone can spend about an hour or two perusing this site and realize what's right and wrong with the digital image industry and what steps can be taken to address it.  That is , if they are truly interested.

#8 - Do you know of any agency, photographer, or author who is using a recovery method that you felt was acceptable and what was it?

Nope, we are all still waiting for Prince Charming.

Here endeth the lesson.

[Matthew Chan]

NOTE: It appears Oscar Michelen and I were typing at the same time but his reply made it to the forum before mine. My reply was made without reading Oscar's reply.

My answers will be brief. I don't give provide comprehensive answers on a "silver platter" because so much has been discussed before. I don't even do it for extortion letter recipients. If they want more, they have to pay for my time.

For you, being on "the other side" you would ABSOLUTELY have to pay ELI and it would be a fairly sizable consultation fee. Somewhere in the $1,000 range direct to ELI for one hour with me.

#1 - Have you ever seen an attorney letter that you felt was reasonable and appropriate?  Can you provide a copy and who was the attorney?

Yes, I have. No, I won't provide a copy.

#2 - Are there any attorney letters that don't get posted on the ELI website because you "approved" of them?

Every letter that is new to me gets posted.  Even the tame and sanitized ones.  The only letters I "approve" are the ones I write for myself.

#3 - Under what circumstances do you feel an attorney should be used to settle a copyright claim for a photograph?

It depends.  Too much to get into here. You will have to pay ELI a good consulting fee to get into this assuming I even want to focus my brain on this.

#4 - Do you make any distinction between a person downloading a song for personal use or a business using an image to make profits?

Yes, I do.

#5 - Do you have any suggestions on how "for profit" use can be compensated after the image is already being used if you disapprove of the current law and method?

Yes but you won't like my suggestions because it is too radical for your industry. This is consultation you will have to pay for.

#6 - I have heard you mention $200 for innocent infringement claims as a settlement amount.  If a specific photographer agreed to only ask for this amount in the recovery, would you support that?

That is too simplistic a view. And what does it matter if I support it or not? You don't need my permission.

#7 - If you could change one small thing that about how agencies collect money retroactively for commercial use, what would it be?

I don't need or care for any changes. It is immaterial to me because I know the game your industry plays. I boycotted stock photos and I recommend the same to others. If I was "forced" to buy a stock photo under duress, I know what I need to do to protect myself. I personally think most photographers are too lazy to learn the business side so they become overly reliant on agencies. I tend to think most of the stock photo agencies are fairly sleazy nowadays with their extortion letter program so I could care less about them. You and the other agencies are only coming around simply because ELI has become a large thorn, not because of any "goodness" or contriteness.

#8 - Do you know of any agency, photographer, or author who is using a recovery method that you felt was acceptable and what was it?

You are still missing the point. You are still focused on collections and "recovery" and that is a big part of your problem.

[lucia]

I'll give it a go! (I'll skip the ones that don't make sense for someone who just reads and sometimes posts.  For example, on 1 I've seen too few for my answer of "no" to be very meaningful. )

#4 - Do you make any distinction between a person downloading a song for personal use or a business using an image to make profits?

Absolutely.  I think photo-companies absolutely do need to figure out how to get something like pinterest to pay them. I think given Pinterest's business models, I think they should be paying some sort of subscription fee already.  Same for Tumbler.

I think differently about a hobby blogger who ran an image accompanying an opinion when commenting on a news story compared to a company who uses a pretty image to decorate a business site.

BTW: In some instances when I read letters presented here, I think the the small business owner who got the letter should pay something. However, often the amount requested is ridiculous given the image. When the amount demanded is 10 -100 times what the image ought to cost, I tend to side with the letter recipient not the photographers representatives.

#5 - Do you have any suggestions on how "for profit" use can be compensated after the image is already being used if you disapprove of the current law and method?

This is difficulty for me. If I were permitted to play god and decide how much should be assessed, it would depend on where the image appeared and a number of factors that may well be irrelevant to copyright law.

#6 - I have heard you mention $200 for innocent infringement claims as a settlement amount.  If a specific photographer agreed to only ask for this amount in the recovery, would you support that?

Depends on the image, where and how it was used and what steps the photographer has taken to prevent his images from being easy to rip off. Some images that have been discussed should settle for $5-- which is probably 5 times what anyone would every if they knew up front. Others $200. 

Some whose quality might merit $200 should get an order of magnitude less because the image is appearing on massive number of "free" sites and-- whether the photog likes it or not-- he's lost control.  Whatever the system is, the prices can't be such that anyone has an incentive to put full size images in locations where a site visitor who didn't even register or log in can copy and later upload to a free site. (Some of the Hawaiian images fall in the latter category.)

#7 - If you could change one small thing that about how agencies collect money retroactively for commercial use, what would it be?

I don't know if this is "small", but I think agencies should provide proof of valid (and appropriate) copyright and proof they have a right to pursue the case either as owner of the copyright or as exclusive agent. This proof should be provided with the first contact letter. (It would be acceptable if to save postage, the proof was in the form of a link to a page with all necessary information.)

When requested, they should also provide proof that some customers actually have purchased that particular image for display in a similar medium and listing the distribution of prices paid for various periods of display.

[Robert Krausankas (BuddhaPi)]

"For you, being on "the other side" you would ABSOLUTELY have to pay ELI and it would be a fairly sizable consultation fee. Somewhere in the $1,000 range direct to ELI for one hour with me."


Damn, you're expensive! Maybe Glen Carner would be willing to trade you 1 image for 1 hour of your time..cause those images are certainly well worth that kind of money.

[bruceh7463]

Dear Mr. Carner-
Thank you for participating in this forum.
Allow me to answer all the questions for you in a painfully simple manner:
If you find unlicensed use of an image send me a firm, but polite, C&D letter.  I will stop.  If not, sue me.

I am an innkeeper.  I employed an outside web design firm who used Getty images without a license.  Getty did not ask me to stop, their first request amounted to over 1% of my annual gross sales.  There was no "willfull intent" on my part, there was no knowledge of the infraction.  Getty's actions were clearly aimed at extortion of funds, not protecting the artist.

Make your first contact a C&D request, not a threat.

Simple.

Problem solved.

[Robert Krausankas (BuddhaPi)]

Dear Mr. Carner-
Thank you for participating in this forum.
Allow me to answer all the questions for you in a painfully simple manner:
If you find unlicensed use of an image send me a firm, but polite, C&D letter.  I will stop.  If not, sue me.

I am an innkeeper.  I employed an outside web design firm who used Getty images without a license.  Getty did not ask me to stop, their first request amounted to over 1% of my annual gross sales.  There was no "willfull intent" on my part, there was no knowledge of the infraction.  Getty's actions were clearly aimed at extortion of funds, not protecting the artist.

Make your first contact a C&D request, not a threat.

Simple.

Problem solved.

Welcome to the forum bruceh!
yup simple and to the point, however the trolls will never see it this way, they are like horses wearing blinders with tunnel vision..

[Peeved]

Dear Mr. Carner-
Thank you for participating in this forum.
Allow me to answer all the questions for you in a painfully simple manner:
If you find unlicensed use of an image send me a firm, but polite, C&D letter.  I will stop.  If not, sue me.

I am an innkeeper.  I employed an outside web design firm who used Getty images without a license.  Getty did not ask me to stop, their first request amounted to over 1% of my annual gross sales.  There was no "willfull intent" on my part, there was no knowledge of the infraction.  Getty's actions were clearly aimed at extortion of funds, not protecting the artist.

Make your first contact a C&D request, not a threat.

Simple.

Problem solved.

I'll drink some company Koolaid to that!
 

Of course you know it does not solve it on the troll's end, as it is "lost revenue" and the fight continues........

[Oscar Michelen]

Well stated bruce!

[Greg Troy (KeepFighting)]

Welcome to the forum Bruce, very good comment concise and to the point.

Dear Mr. Carner-
Thank you for participating in this forum.
Allow me to answer all the questions for you in a painfully simple manner:
If you find unlicensed use of an image send me a firm, but polite, C&D letter.  I will stop.  If not, sue me.

I am an innkeeper.  I employed an outside web design firm who used Getty images without a license.  Getty did not ask me to stop, their first request amounted to over 1% of my annual gross sales.  There was no "willfull intent" on my part, there was no knowledge of the infraction.  Getty's actions were clearly aimed at extortion of funds, not protecting the artist.

Make your first contact a C&D request, not a threat.

Simple.

Problem solved.

[bernicem77]

Mr. Carner,
Bruce solved your dilemma. If you do find an "infringement", start off with a C&D letter. If the C&D is ignored, then proceed accordingly. I highly doubt that anyone on this forum went out to your company website and downloaded a picture (or pictures). 99.9% of the people here legitimately believed that they were allowed to use those photos, and were in shock when they received an extortion demand letter.
Why don't you focus your attention on the websites that are offering your work for free? If I was a photographer and someone else was offering my work for free, I would be focusing ALL my anger and attention on the creator(s)/owner(s) of the website, and not the people who downloaded images from that website.
You said that you have issued take-down notices to these websites. If that is the case, why are your images still being offered online?

[Greg Troy (KeepFighting)]

bernicem77, it is clear that it is just about the money and that’s all. HAN, MF, Getty and the rest don’t care what reasons you have as to how/why the alleged infringing image(s) appeared on peoples sites, nor do they care if you can 100% prove any infringement is innocent and non-willful, they just want the money.  HAN has already stated that 50% of their revenue comes from the collection side of the business.  Unfortunately until it no longer is profitable to bully, harass and extort money from people it will continue since fairness, customer service and common sense are words not included in their current business model.  Apparently 50% of the bottom line is worth negative press, loss of potential customers and your company’s reputation being in the toilet.

Due to recent court rulings where judges are showing they are fed up with the judicial system being used as a means of generating income rather than justice, a growing community of people learning how to fight back thanks to ELI and finally people who when sued will file a counter suit putting the trolling companies on the defensive I think we are on the verge of being able to turn the tide.

Mr. Carner talks about defending the rights of the artists his company represents, and believe me I am all for true copyright enforcement, but what about the rights of the individuals and small businesses who get extortion demand letters asking for many many times an images worth. 

Again, thanks to ELI and the knowledge base of its members I have been able to educate myself and no longer fear my situation as it is nowhere near as dire as my demand letter implied, not to say I take the situation lightly either.  I know what to expect and if it should come to it I am prepared to vigorously fight with everything means available to me. 

[Robert Krausankas (BuddhaPi)]

The problem with just issuing a cease and desist letter is twofold

1. Glen Carner, Vincent Khoury Tylor, Hawaiian Art Network, Copyright Services International, Picscout, Picscouts "team of newbie lawyers" and the rest of the trolling agencies simply would not make any money.

2. Sending a cease and Desist is not the letter of the law, heaven forbid they should vary from what the law states, to do what is "right"