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« on: April 12, 2013, 01:41:02 PM »
Here's the deal.
I'm a European based editorial photographer and have been plying my trade for about nine years now, slowly climbing the ranks from a wet-behind-the-ears freelancer, carving out a niche for myself and settling into a niche that I'm comfortable with.
I live in a two bedroom rented apartment with my wife, three children and a dog. Our net income is nowhere quite average, we have modest savings and, all in all, we have a more or less quiet existence.
As a freelancer, I'm quite fortunate that I earn enough from my shooting that I can contribute to my family income in a meaningful manner - although there are the near constant costs of doing business such as insurances, gear maintenance etc., not to mention on-the-job expenses that I sometimes have to wait months to see reimbursement for.
Unfortunately, the subject matter than I cover means that, since 2008, I have seen the amount and frequency of infringements of my photographs climb almost exponentially. Certainly, the technologies to discover unauthorised uses of my shots have become simpler and less costly, so maybe I'm just finding more instances than I used to. Who knows.
The first time I ever enlisted an attorney to take on a copyright infringement case was back in 2010. One of my photos had been used by a major clothing company with annual revenues of well over $150,000,000 per year. They used my photograph as the basis of an online advert that - when clicked - would take viewers to their store where they could purchase apparel.
When I contacted them, they offered me a t-shirt by way of compensation. The actual license fee that would have been due for the manner they used the shot was a modest four figures (calculated from averaging a few sources for quotes). Upon being told this, they flat-out refused to pay anything more than $50, citing that was the "average" for images on the internet.
At this juncture, our combined family income wasn't great and - to be frank - it was a struggle to make ends meet each month. Some days we'd have next to nothing in the bank the day before pay-day.
This is where the services of contingency fee attorneys are a lifeline. I was able to scrape together the copyright registration fee and navigate the US Copyright Registration process and effected a timely registration (within three months of publishing) of the photograph in question.
Even having the representation of qualified counsel whose specialist area was IP and Copyrights, the clothing company still refused to play ball. Yes, the opening demand was low five figures but, in all honesty, we were talking about a multi-million dollar company that thought they could offer me a t-shirt in return for them creating an advert out of one of my photographs.
Negotiations stalled with their "final" offer of $200 and we knew fine well that we'd need to file a claim with the courts to move forward. It was difficult to scrape together the $350 filing fee and $100 for process service, but we managed it.
Almost the day after filing the complaint with the court, my counsel was contacted by a new attorney representing the defendant and, a couple of weeks later, an out-of-court settlement was reached for low five figures. Yes, a chunk of that went to my attorney but without their help, I'd have gotten nought but a t-shirt (or maybe $50)
Between then and now, I've had my work infringed upon by the likes of Microsoft, Yahoo, Fox, countless "news" websites of all sizes and many others.
I have made a point of almost always attempting a direct dialogue with those whom make use of my work; only one in every five people I contact make any effort to engage with me and take the issue of the infringement seriously.
I've offered settlements for the "lost" license fee (mostly in the range of $75 ~ $150), settlement for a percentage of the license fee where multiple shots have been used... and on about four out of five occasions, I get it all thrown back in my face.
Some have claimed "fair use", some have denied liability, others have flat-out lied as to how and where they sourced my work (I always embed IPTC and EXIF data, and have a particular file naming convention) and, when caught in the lie, they shout "extortion!" and scream that they have no money, no assets and that I will never see a single red cent from them... yet they persist in using the work of others for their own gain as if it were some God-given right.
Others hide behind services like DomainsByProxy - and even all the DMCA takedown notices in the world end up playing out like a perverse game of Whack-A-Mole; I get one image taken down, only for a different one to pop up on the same website some weeks later. They hide behind anonymity and profit from my work - mostly sites set up to scrape RSS feeds and earn a few hundred dollars per month in advertising revenues.
It's tiring. It's frustrating. It leaves me shaking my head that, whilst there are so many people who want to make use of my work, so few of them elect to do so legitimately.
Is it any wonder, then, that I have to turn to the services of contingency fee attorneys so that I might protect my rights, business interests and livelihood? I've seen mention on this site that such attorneys - whom peg their contingency fees as 33% or thereabouts for pre-litigation settlements - are pariahs and extortionists.
Look at it from my perspective; I rarely put a case towards my attorneys where I haven't initiated contact with the person / business whom has used my photograph first. The exceptions to my rule are where the infringer is in the IP business themselves and absolutely should know better - think newspapers, media companies, journalists etc.
About one in five of those contacts results in a direct settlement of the infringement, which is a win for everybody: the 'defendant' has learned about IP laws, I've earned licensing income and not a single lawyer has profited from the exchange.
From the remaining four out of five... maybe two or three of them don't realise that I'm truly serious about protecting my rights until I've gotten an attorney involved. They're notified of my copyright registration certificate number, they're told what the maximum penalties are if it goes to court and it's down to me to decide the opening sum that goes into the demand letter.
Those one or two people then start negotiating and, when a middle ground is reached, a settlement is effected. I always hate going down that road as it results in burnt bridges and sometimes a burning ember of resentment on the part of the defendant... but I content myself that I had exhausted the personal approach prior to this juncture.
And the last person? The remaining 20%?? They fight tooth-and-nail and most often claim that their actions are a "no harm, no foul" situation. They don't seem to consider that maybe, just maybe, in taking my work without licensing it (and using it well outwith the bounds of fair use) they're screwing the little guy.
I'm not Getty Images. I'm not Corbis. Heck, I'm not even a microstock site. I'm a freelance editorial photographer working to provide an income for my family. I do my work because I love taking photographs. I do my work because, in my niche, I'm one of the best in the world... and I've worked hard to get to this point, finding and retaining clients who value my images.
Do you really believe that people that appropriate my photographs are entitled to a free ride? Is it really so reprehensible an idea that, in order to protect the value of my work (not to mention my clients interests) that I might have to resort to the letter of the law... and that my finances mean I have to use a contingency fee legal firm to do so??
Please remember that the provisions of USC 17 exist just as much to protect the little guy like me... that attorneys willing to take on my cases bear all the financial risk because I simply can't afford to.
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