Chasing Infringements

Posted on 1/8/2013 by Jim Pickerell | Printable Version | Comments (0)

As a specialist in model released military photography (http://www.photoshelter.com/c/militarystockphoto) for more than 30 years Hans Halberstadt has always actively pursued infringements of his work. Over the years he has recovered in excess of $200,000, often a few thousand dollars at a time, for various unauthorized uses.

During his career Hans has produced several books on military subjects. People often grab images from these books and use them without permission. Below he outlines the steps he takes, always with good results, when he discovers an infringement.

1. Document the existing use thoroughly through screen captures before doing anything more.

2. Write a polite and businesslike letter of inquiry about the use. Do NOT make accusations or implications that the use is unauthorized - that can be very embarrassing if it actually was authorized, perhaps through a third party or other manner. "Hi, I'm the photographer who made the photo you're using on your home page (see attached screen capture) and I don't have any record of licensing it to your group. Could you please have somebody contact me and explain how you obtained it?"

3. Ninety-nine times out of 100 you will get a contrite response containing a lame excuse plus a statement that will say something like "we have taken your image off our website and hope that makes it all better."

4. One percent of the time they say, "Well, Hans, you idiot, you licensed this to us three years ago, for five years, and a copy of the license is attached." This is why it pays to be nice at the beginning of the process. This sort of thing happens when the company's name changes or when you worked with an ad agency or other intermediary rather than the final user, or, if you are like me, you are sometimes forgetful.

5. If they confess, then respond more firmly, thus: "Well, if you used it without permission, we have a problem. Please give me a detailed report of all uses of this image and do so by the close of business on Friday of this week."

6. If they respond with the details of the use, you then calculate what your fee would have been for the use, then invoice them for triple that amount. You do not need to do a song and dance about the fee, just lay it out there. They will either pay it or object.

7. If they object, ask for the contact information for their corporate attorney and send that along with all your correspondence to an attorney specializing in copyright issues. We use Bert Krages in Portland, Oregon, and he writes the sweetest, most charming, and most effective little demand letter you can imagine.

8. If the company claims to be a “non-profits” that has no bearing on what we charge. Non-profits pay regular rates for their office supplies and personnel and are businesses like any other in most respects.

9. All this presumes you have formally registered the work (and all your other stuff) with the US Library of Congress and have a Copyright Registration number. With such a number, you or Bert or another attorney can beat the unauthorized user to a bloody pulp. Without it, you can bluff and make them THINK you have one, but if they call your bluff, you have no practical weapon to use on them.

I am sure there are other friendly copyright-specialist attorneys out there but Bert has resolved a couple dozen similar unauthorized uses, normally with just a phone call or email, and always at very reasonable costs to us and terrifying costs to the infringer-company.

While infringements were common in the past, we are seeing very few unauthorized uses anymore.


Copyright © 2013 Jim Pickerell. The above article may not be copied, reproduced, excerpted or distributed in any manner without written permission from the author. All requests should be submitted to Selling Stock at 10319 Westlake Drive, Suite 162, Bethesda, MD 20817, phone 301-251-0720, e-mail: wvz@fpcubgbf.pbz

Jim Pickerell is founder of www.selling-stock.com, an online newsletter that publishes daily. He is also available for personal telephone consultations on pricing and other matters related to stock photography. He occasionally acts as an expert witness on matters related to stock photography. For his current curriculum vitae go to: http://www.jimpickerell.com/Curriculum-Vitae.aspx.  

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