59 Collecting on Misuse
January 10, 1997
Recently there appeared on the Internet some good advice about procedures for
trying to collect once you discover a misuse of your images.
Frans Rombout of Picture Partners in Leiden, Holland
pointed out that from a legal point of view as soon as you send someone an
invoice for something he or she stole (your bike, car or in this case an image)
you more or less agree with the theft.
A better solution is to send a letter in which you let them know that "(1) you
have found out that...etc.,etc. and THEN (2) make a PROPOSAL for a settlement:
pay twice the usual price or you will let a lawyer handle it."
My only comment here is that maybe three or four times the usual price, rather
than twice, would be a better starting position for a quick settlement.
Henry Scanlon of Comstock suggested the following:
"If you see an unauthorized use of your picture, bear in mind that you're
looking at an INFRINGEMENT OF COPYRIGHT subject to STATUTORY DAMAGE AWARDS of up
to $100,000 per infringement.
"Unless, of course, you send them a bill for $1200 at which point you have
effectively set a ceiling on what the offender sees as their 'exposure.' And
that's why their attorney isn't worried, and knows you ain't gonna go spend a
bunch of legal fees in order to recover a 'mere' $1200.
"If you feel absolutely compelled to send a bill (which, strategically, you
shouldn't do in the first place) do two things: Make it for $100,000 and write
very clearly on it that it is a SETTLEMENT OFFER. Why? Because 'settlement
offers' are NOT admissible evidence in court and your 'bill' cannot therefore be
used against you.
"What you SHOULD do in these circumstances is call 'em up, cite the specific
provisions of the copyright law, get their serious attention thereby, and start
negotiating down from $100,000--not from $1200."