Pro-Imaging

ENFORCEMENT OF COPYRIGHT CLAIMS

      The November 2007 edition of Photo District News contains an interview with Roy Hsu of the Stock Artists Alliance.  We have received a number of inquiries regarding Mr. Hsu's comments regarding copyright issues and particularly as to how they may relate to those of you represented by agents and whose work has been infringed.   We will try to address the main inquiries here and if we have failed to answer anyone's question(s), somehow we think you will let us know. 

      A disclaimer is in order.  I do not know Mr. Hsu and my comments are addressed only to what is printed in PDN.  Publications have propensities to make errors.  We also duly note that PDN does not claim that Mr. Hsu's comments have been published unedited and in their entirety. We fear that certain myths omnipresent in the photo community have been given yet another shot in the arm and thus the barrage of inquiries bearing a similar theme. 

      We have addressed the importance of not selling, transferring or giving up your rights under the Copyright Act to others.  One of those important rights is to make the decision as to pursue (or not) your remedies in the event of infringement.  Depending on the unique circumstances of each case, those remedies include an award of one or more of the following by a Federal District Court: 

• money damages for the reasonable licensing fees to which you would have been entitled had the use been agreed to;
• statutory damages;
• your attorneys fees;
• a Court Order directing that the offending use be stopped immediately or by a given date.  Such an Order can of course cause a recall of a product utilizing the infringement.  Such a threat, if legitimate under the circumstances, often forces the parties to resolve matters in a hurry.
  

      We have also repeatedly pointed out the numerous potential hazards of being represented by an agency and that agencies have sought for many years the right to act in primarily or solely in their own interest.  To set the stage for today's comments, below are some of our prior (edited) musings on the subject of agency representation: 

     Words Matter  -  the acceptance of the vocabulary of your enemies is dangerous to your economic health. Some of you may recall our post in March of 2007 regarding the importance of the word “agent” and the efforts by agents, agencies and reps to retire the use of the word. 

      A mere independent sales representative or distributor rarely is burdened by such responsibilities and legal obligations (as an agent). He/she/it can sell one product over another at whim. An independent distributor selling various brands of coffee, wine or widgets to retailers rarely has any obligation or allegiance to one brand over another. He/she/it may even give away product or services favoring one brand over another. A mere salesperson can act, sell (or not) anything believed to be in his/her/its own self interest. 

      (Some agencies) state that even if their own contract headings identify themselves as "agents", promote and advertise themselves to their clients and prospective "content contributors" as "agencies" or "agents for content", using the word "agent" on their websites --- they are NOT an "agent" for any of their contributors or content providers.

      Yes, it sounds illogical. Yes, it is counterintuitive. Yes, it is utterly bereft of a semblance of merit.  Those who seek to represent the works of photographers and illustrators and represent to clients and potential clients that they have the authority to negotiate and make deals with third parties on behalf of creators run away from the English language and countless obligations to their creators which agents by law, have.

      PDN asked Mr. Hsu: Why do photographers hand over rights to pursue infringers to their agents? Aren't photographers the ones with most incentive to protect their own work? 

      RH: Let's accurately call them distributors and not agents. (emphasis added)  Distributors and photographers are on the same side here, but the distributors are more apt and able to go after infringers because they have compliance departments built into their operations (emphasis added). 

      Several rational inquiries are made by PDN on the theme of, "what motivation, if any, do agencies have to pursue infringements of copyrights owned by photographers" including:. 

      PDN: Playing devil's advocate for a moment, isn't Getty's policy of converting infringers to customers a reasonable win-win response?  

      RH:  If they are successful, there is nothing wrong with that approach.  The question is whether they are successful enough.  Right now (Getty) does not share this information with its contributors and there is not transparency (to allow us) to make a comment about that. 

      OK now its time to get into incredulous, who are you kidding, screaming mode. 

      1.  Each photographer must know and be heavily involved in any legal action or contemplated legal action arising out of a violation of his/her own copyright.  "Transparency" or lack thereof, ought never be an issue unless the discussion involves 35 mm film.  This is your business, your rights, do not defer decisions on your income, property and future to others outside your control.  It really is OK to stick your nose into your own business. 

      2.  "Compliance departments" are run for the benefit of the agencies, not the photographers.  They are commonly and largely composed of non-lawyers whose main goal is to "recover" the fee that would have been charged had the infringer sought a license in the first place.  Most have never set foot in a courtroom nor have any idea what really happens at any step of the judicial process.  As a legal case, your likely recovery on a registered image may exceed the recovery sought by your agent by many, many times.  Additionally, the agency fee of 50-60% of the gross recovery (plus their "expenses" over which you typically have no control or knowledge) exceed by many times the typical legal fees you may have to spend.  Attorneys fees are frequently recoverable via statute and are also included in the composition of settlement offers made by opposing attorneys and/or "strongly suggested" by federal judges, magistrates or court mediators at settlement conferences. 

      3.  In most situations, whether the agency retains its client is of little to no economic benefit to you.  Don't take my word for it, simply do the math.  You guys are rightfully complaining about the incredibly low net recoveries you receive on your stock transactions.   I am now looking at a Getty statement reflecting the licensing fees received by a very, very well known shooter.  Net fees on many, many transactions are less than $75.  Some as low as 18$.  Many of you have received net fees of less than 10$ and in some instances your royalty was measured in pennies .  Take the total of the monies actually received by you from the infringing client over say the last 2 to 3 years.  Significant?  Will the infringing client sign a contract with you guaranteeing you royalties of X$ over the next "Y" years? 

      The agency may do business with its client to the tune of many thousands of dollars per month, and have a flat fee or subscription arrangement such that individual transactions have little to no economic meaning or value. That agency income is generated by hundreds or thousands of "contributors" of which you are but one.  Recall my comments on the agencies efforts to render all photographers as fungible or of utterly equal value?  Note that by and large the treatment by agencies of photographers has been uniformly - regardless of professional reputation, skill or prior revenues generated - poor. 

     Would it serve the economic benefit of an agency to let a client get away with an  infringement of one shooter's work in order to preserve its relationship with a client like: Time, Newsweek, People, NBC, Fox, Viacom, Macy's, etc. etc.?  Of course it would.  The agency looks out for itself, not the "contributor".  If it cared about your financial interests it would still call you a "photographer".  When you fill out your 1040 form, under "occupation" do you insert, "contributor"? 

      4.  In the event of a lawsuit or threatened lawsuit, agencies hate, HATE to have to get involved.  They consider it time consuming and unproductive (to them).  $25,000 - $150,000 to you might mean real money.  99% of the time (to them) its not worth litigating, hiring outside litigation attorneys ($$$), producing witnesses and God forbid, alienating the infringer.  Don't you think their clients are aware of this reality and negotiate accordingly? 

      It is common for a publication, media company and the like, to employ an image (kept in their file or to which they have access from a prior licensed use) without even attempting to secure a license for a new use and either: 

                A.  Wait to get caught - at which time they invariably apologize claiming  "gosh it fell through the cracks" or "the person responsible is no longer with us" or one of a dozen other standard responses we've heard over the years; and/or 

                B.  Send a check to the agency after the infringement (whether notified or not) reflecting what it deems to be a reasonable, usual or customary fee.  Most times the agency does nothing and elects not even to call you about it.  You get your cut on the next statement and typically pay it no mind.  

      I call this the "Indignation License".  IF the client gets the dreaded lawyer's letter on behalf of the aggrieved shooter, the response is that they are "appalled" that they are being pursued by a greedy attorney when they have already paid the agency a fair fee!     Yes gang, clients of agencies really, really think about this stuff in advance. It is my experience that by and large their IP people are more experienced, have more resources, are better paid, and are a lot smarter than the "compliance staffs" at stock agencies.  

            Register all of your work on a regular basis.  Do not rely on others, especially stock agencies, to police it or protect you.  You do it.  You can trust you, can't you?  Consult with a competent copyright attorney as circumstances dictate.  He/she can best advise you as to what if any steps you ought take and what remedies may be available to you.   A lawyer's sole obligation is to you.  Letting your agency take charge of your copyrights for their economic benefit is dumb.  If you are too lazy to protect yourself, you are in the wrong business. 

      We draft contacts which contain clauses permitting joint copyright infringement pursuits at the photographer's option.  Sometimes the agency wants to opt out so as not to antagonize a client.  No problem, in such event, the photographer receives all of the recovery. 

      Have all questions with regard to procedure, practices and transactions answered by your agency in writing in such manner as you are able to understand them. Do not do business with any purported agency whose practices your accountant and/or attorney are not satisfied with, period. If BOTH your accountant and attorney are unhappy with the business operations of your agency, run away from it like the wind. Such agents and agencies, despite what nomenclature they want to impose on you dear "content providers", are out for themselves - only. 

© Edward C Greenberg, PC. All rights reserved. Not to be reproduced without permission.