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« on: May 31, 2012, 10:06:20 PM »
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.
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