Pro-Imaging

14 April 2009

Google the above phrase or any of its permutations, e.g. “You’ll never shoot another job”, ”Now no one will ever hire you” and so on and you will get thousands of hits.  The cliché, in one form or another, manifests when a creator, whose work has been infringed or whose bills have not been paid, has the temerity to express the intent to hire a lawyer.  Obviously the "threat" of losing a non-paying client (especially in this economy) has been an effective deterrent when used on creatives.   Yes, it is counterintuitive.  Yes, it is illogical.  And yes, clients know that it often works to prevent claims or lawsuits.

Some lawyers for media companies and publishers use the very same threat when speaking to us.   They are spoon fed the phrase by their clients who have over the years effectively employed it against photographers and illustrators.  Typically, it is used to scare creatives from pursuing monies due or prosecuting their legal rights under the Copyright Law.

Essentially, creatives are told that suing or even aggressively pursuing that to which they are entitled will "black list" them.  If such were indeed the case, most of our clients would have long since closed up shop.  We have never seen any evidence of a creative who successfully pursued a valid claim being blacklisted by any legitimate business.  If any potential client is in fact deterred from retaining your services for such a reason, consider yourself lucky for having failed to make their acquaintance.

Anyone who threatens you because you seek what is yours by "putting the word out", disparaging or defaming you within the industry or similarly threatening your livelihood, is exposing themselves to a potentially large civil law suit and in some cases, criminal charges. 

Do you think that contractors, car mechanics, or ad agencies, if told by a deadbeat client that if sued, their services won't be used again, then curl up into the fetal position?  Photographers, illustrators, artists and graphic designers are, however, non-confrontational by nature.  They scare easily and their clients know it.

Real life examples:

A. Model sues for unauthorized use of his/her image by consumer company.  Model wins at trial.  Model has been hired by company on ½ dozen occasions in the post litigation years.

B.  Photographer keeps asking for return of his analogue images shot on assignment (perfect for stock).  Client stalls for months.  Photographer (a really understanding, sweet guy) gives client a year to find pictures.  Finally, client admits under modest pressure that the pictures from the shoot are lost.  Photographer asks, "Why didn't you just tell me a year ago and make things right?”  Client's sarcastic reply,  "Whaddaya gonna do, sue me?!"  Photographer does.  Photographer is awarded about $160,000 by the Court.  Most compelling testimony is client accurately recounting the aforementioned "dare" in open court to an appalled judge.

C. Models complain to their modeling agency that advertisers have paid the modeling agency but modeling agency has not paid models.  Models told by bookers that complaining will assure that they will not be sent out for go-sees or otherwise get work.  Threats work.  Models stop complaining.  Model agency closes up in the middle of the night after spending models' money.

D. Same as "C" above - just substitute the words "photographer" and "agent" for those of "model" and “model agency”. 

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Whether and to what extent you assert your legal rights ought to be dictated by the veracity of your claims and the economics of pursuing them.  Such decisions should be made in consultation with your accountant, your spouse and your lawyer.  Threats that suing will prevent you from working are akin to those threats made to us in our youth that our transgressions "will go on our permanent record".

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Edward C. Greenberg, P.C.

570 Lexington Avenue

17th Floor

New York, NY  10022

(212) 697-8777

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