Protecting Your Property

Posted on 12/6/2002 by Jim Pickerell | Printable Version | Comments (0)

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PROTECTING YOUR PROPERTY



December 6, 2002

Advances in technology and their impact on our industry have made it easier than ever for buyers of
photography to cross the line and cheat. The challenges of our post 9/11 economy seem to have encouraged more
companies than ever to push the envelope and rely on the costs and time factors associated with our
court system to protect them against being punished for either committing copyright infringement or
losing precious original photography.


What should a photographer do to protect his or her work? In seeking some answers I contacted Gary
Elsner who for the past four years has operated a consulting business for photographers and stock
agencies. One of the aims of his business is to assist image suppliers in protecting their rights.


Gary has worked in the stock photo industry since the '60s when he joined FPG International. He
rose to a senior executive position at FPG, before leaving to establish his consulting business in
1998. During his career he has worked with many attorneys and gathered knowledge and experience
about the law as it applies to our industry. He has provided important testimony for landmark cases
that have impacted our industry and has personally settled more than three hundred cases for
copyright infringement or lost images. My agency, Stock Connection, has used Gary from time to time
to aid us in settling infringement problems.


JP - How can photographers best protect their property and their rights?


GE - By operating their business in a professional manner.


JP - How can that best be accomplished?


GE - Photographers should establish standard business practices and follow them in all their
dealings with clients. They should always send paperwork with all film or digital files they
provide to their customers.


One particular photographer called me twice during the past year, both times with problems
involving his clients. In the first instance the client had refused to return some of his images.
The first question I asked was if he sent some sort of delivery contract with the photos when they
were originally submitted to the client. The answer was no because he trusted his clients and he
didn't want to establish a set of onerous conditions that would scare them off. I told him I would
be glad to help him on the matter but it would be a lot more difficult than if he had terms of
delivery in place. The photographer said he would think about it and get back to me. He didn't!


Almost a year later he called about another problem he was having with a client that had lost some
of his original photos. He asked if I remembered our earlier conversation, which I had. I asked if
he had decided in the interim to establish some terms and conditions covering the submission of his
images to his clients. Believe it or not, I got the very same answer from a year earlier and my
response was to tell him that he had now run into two problems and maybe he needed to think about
addressing the basic issue. I'm still waiting for another call. I hope for the photographer's sake
that he got the message and is doing something about it.


JP - I'm sure many photographers are worried about upsetting or otherwise alienating existing
or potentially new clients. What are your thoughts on that?


GE - Ethical clients will accept that you need to have terms and conditions for your business.
For sure, all major agencies and corporations have them. If someone is raising a fuss about one or
some of the terms, chances are there is a good reason for it. Remember, everyone is your friend
until there is a problem and then they will always cover their backside first and deal with their
own needs before considering anyone else. You have to do the same.


JP - Why do we need terms and conditions at all?


GE - Most problems develop because there was a misunderstanding between the photographer and
the client related to rights or other terms of the agreement. The best time to get that sorted out
is in the beginning before you do work or deliver film. You may think you have a verbal agreement,
but if you put the understanding in writing and the client accepts it, then there is much less
likelihood of a problem developing down the road. Such an agreement is necessary regardless of
whether you are delivering film or a digital file.


JP - Many photographers think involved terms and conditions will discourage customers from
using them. What's your opinion?


GE - In almost every conversation with a client there are issues that are not addressed
because both of you think the other has a clear understanding of "normal business practices."
That's what the "boilerplate" in written communication is for. It is designed to make sure that you
and your client have covered all the issues and have a level of agreement on what you consider
important standard operating practices. If there are things in standard industry agreements that
are unimportant to you, consider taking them out of your agreements in an effort to keep the
agreement simple and less threatening.


JP - With the Web playing such a key role in how business is done today, many of us get
calls from clients who have found our image on the Web and are ready to license it. They want us to
email a high-res digital file to them immediately. What is the optimum way for a photographer to
handle such a transaction and make sure there is no misunderstanding about the deal?


GE - n todayœs business environment with computers and fax machines readily available it is
easy to outline any verbal agreement in writing. If your business set-up is such that taking this
extra step will not present an overwhelming amount of work I would recommend that you create a form
that simply says something to the effect of: To confirm our conversation regarding the use of my
image # ___: You are agreeing to obtain a non exclusive license for the following use(s). Then
spell out the uses exactly as they were explained to you. Include all the specifics such as image
size, number of insertions, and titles of publications. Get the completed form to the client and
require that they fax you a signed copy before you release the film or digital files for delivery.


JP - What should the photographer do if the client doesn't agree with all of the terms?


GE - Consider which terms they are objecting to and their possible motivations. If someone is
raising a fuss about one or some of the terms, chances are there is a good reason for it. Perhaps
they have a history of losing images or perhaps they like to only supply partial usage details when
they license images. If the client objects to one or some of the terms and conditions, you have the
option to negotiate unique terms for your business dealings with this particular client


JP - Why not wait until later to bring up some of these issues.


GE - The initial discussion period is when the customer is most inclined to work with you.
They want to use your image. The best time to make them aware of your standard terms is before you
have done any work or delivered any film.


JP - What else can a photographer do to ensure that they are dealt with in a fair manner?


GE - The photographer should invoice all jobs, using a standard form that also contains terms
and conditions. The invoice should be written to create an absolutely clear understanding of the
agreement. Your invoice is your reproduction license. While there is such a thing as a "verbal
agreement," if there is a dispute, you will be a whole lot better off if the agreed upon terms are
in writing.


Many invoices I see on the copyright infringement work that I do are not as complete as they could
be. Many photographers rely on the oral agreements they made with their clients and shorthand the
terms when they prepare their invoice. When I was FPG's VP of Sales, any invoice that was created
by a sales rep, that didn't contain the names of the publications, the dates of issues and the size
the image would appear, would be rejected by the person checking the invoices.


JP - Should a photographer issue an invoice if they receive payment before having a chance to
issue an invoice?


GE - Quick payment is wonderful and presuming that the amount of the check is the amount you
had quoted for the job, I still urge you to send an invoice. In so doing you can clearly define the
rights you transferred to the client. Simply mark the invoice paid in full. Remember that everyone
has a great memory until it becomes convenient and advantageous to not remember things. Why create
an ambiguous situation when it is so easy not to?


I have been told time and time again by lawyers that contrary to the old adage, "Let the Buyer
Beware", in a business disagreement, the onus is on the creator of a document to provide clarity.
In instances of ambiguity, the Court will sometimes rule against the party that created the
document.


JP - If a photographer discovers an infringement and decides that he wants to handle it
directly rather than hire someone such as yourself or an attorney, what suggestions can you offer?


GE - To begin with, I do recommend that the photographer attempt to resolve problems on their
own before reaching out for an attorney or some other professional. In some cases an honest mistake
might have been made and this will provide you and the client with an opportunity to correct it in
a manner that is acceptable to you. That having been said, in the more than three hundred
copyright infringement cases I've handled, I have yet to hear a client utter the words "you caught
me - I was wrong - how much do you want?" On the other hand, I probably could write a book on all
the excuses that have been offered to explain the infringement.


As to specific suggestions I would make, put things in writing but donœt write too much. Demand
that the Infringer immediately stop using your image. Demand a complete accounting of all uses.
Be careful with quick settlements. Quite a few times I've seen situations where the Infringer said
"how much," the photographer said "X" and the Infringer says "fine, send a bill" and of course,
later on, the Infringer denies ever agreeing to pay that amount, let alone anything!


I'm working on an infringement currently where the photographer caught someone using his image
without having asked for permission or offering payment for the use. The photographer accepted the
client's representations that it was an honest mistake and agreed to a very low fee for several
advertising infringement uses, based on the promises of future business. Four months later, the
photographer discovered a second set of ads of another of his images being used by the same
Infringer. How much do you think the Infringer wants to pay this time? We of course are demanding
a lot more. It will be an uphill battle for sure. Oh by the way, the photographer never saw any of
that so-called additional work - other than the second infringement!


JP - How can a photographer avoid traps like that?


GE - There are various strategies available to the photographer. To begin with, since the
bank will not accept promises of future payments in lieu of your current mortgage payment, I
strongly suggest avoiding acceptance of the barter of future business as partial or complete
payment for an infringement. If the client truly made an honest mistake, you can always offer a
discount on future work, when and if you are offered such work.


The photographer should offer to issue a retroactive license after payment is received. That, of
course, is the safest way to go. For large corporations that use purchase orders this procedure may
be a problem. Your fall-back position would be to require a purchase order from the client that
clearly defines the image, the use terms and states an agreement to pay within X number of days.
For those Infringers that respond by saying "our company doesn't use purchase orders," simply
require them to send you a letter requesting an invoice, detailing the use(s), the agreed-upon fee
and the date payment will be made by.


JP - Let's talk a little more about terms and conditions. How can a photographer get access
to them?


GE - There is a number of options available to photographers. They can hire an attorney to
create them uniquely for them. Various organizations such as the ASMP provide them to their
members. Your book, Negotiating Stock Photo Prices has suggested standard terms for delivery
memos and invoices on pages 304-310.


A few years ago, I worked with an attorney who did a large amount of work in our industry. We
created a set of terms and conditions covering both delivery and licensing. One of the services I
provide is to place these with photographers and in so doing, customize them for their specific
needs as well as help them to incorporate them into their business practices. Having standard forms
and knowing how to properly use them is not as simple as you might think.

    Note: Gary wanted me to make sure that the readers know and understand that he is not an attorney nor is
    he licensed to practice law anywhere. That having been said, if you would like to contact Gary
    about an individual problem, he can be reached at 201-847-0048 or gelsner@worldnet.att.net



Feedback:


From: Julian Jackson

I was a little surprised at a couple of the anonymous photographers quoted in
this article not wanting to supply documentation because it would "put off the
client". In my many years as a picture researcher I was always pleased to receive
delivery notes, captions, T & C's, licencing agreements, etc. They showed that the
photographer was a professional and understood the rules we were playing to.


It was the bags of unlabelled pix/viewpacks with no credit or return address that made my
heart sink.


I think that all good clients would expect such documentation and any publisher who
complains about this should ring alarm bells for the photog or agency!!


Copyright © 2002 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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