Author: Mike Boatman
This is my personal viewpoint. This is my opinion based on my personal experiences. Other people have different experiences and therefore, their viewpoint may be different than mine.
I repeat… everything in this article is my opinion. I’m not depicting any specific communication with my attorneys, nor am I divulging any privileged information from my attorneys. Everything expressed in this article should be viewed strictly as my own personal opinion.
Enforcing Your Copyrights
Let me be perfectly blunt: If you’re not going to enforce your copyrights, there’s no point in wasting your time and money copyright registering! If you do understand the necessity of enforcing your copyrights and going into it with eyes wide open, then this article is for you.
As I mentioned in the comments section of my previous article, Making a Case for Image Copyright, my goal in writing these articles is to educate photographers so they can make educated decisions that best suit their personal situations.
For some of you, enforcing your copyrights will not be an option because of your personality makeup. Copyright litigation is not like TV crime shows where the bad guy sees justice in 30 days. The truth is, it’s a long and arduous process. Patience is a requirement. In my case, it simply became part of my workflow and business model in 2010, when the nature of infringements changed for me.
My first copyright infringement occurred in approximately 1983. The case was settled within 60 days for $10,000. From 1983 to 2010 I had approximately five other copyright incidents. At that time, most of the work was being delivered on transparency film. The ease of access to imagery through the internet really had not blossomed. Imagery was controlled by professionals: the photographer, the advertising agency, the color management companies that separated the transparencies into printable CMYK plates, and professional offset printing companies. In those early years, the infringers were usually people who were trying not to pay for the services rendered.
In 2010, my world changed. I stopped counting at 52 incidents of copyright infringement involving anywhere from 13 images to 50 images per incident. It started with one infringer and with that encouragement, an entire sector of my business was affected–and it seemed that everyone was infringing. It was considered no big deal to take images and use them without authorization. And although this sounds like what’s currently going on in real estate photography, this infringing industry was not in real estate.
The legal fight took close to two and a half years. The result of my litigation was that everyone in that industry now absolutely respects copyrights of photographers and will not use an image without a clear granting of usage rights by the author or creator of the image.
In 2010 it became apparent that I had to do something different concerning copyrights. It needed to be part of my workflow business model. I needed to remove emotionalism and make it a business practice. This is much easier said than done because when someone steals a photograph that you've created, what they’re stealing is essentially a part of you.
I set up what I consider my "line in the sand". If an infringer crosses this line, and they have knowledge or should have knowledge of the business of copyrights, then I will exercise enforcement of my copyrights. I think each of you will need to establish your own guidelines for when and when not to enforce your rights. For some of you, the question will be: “Should I enforce my rights at all?” I would recommend that before you enforce your copyrights, you have an absolute clear “smoking gun”–a clear, unauthorized usage (e.g. copyright infringement).
Copyright Litigation: Different Approaches
The practice of law is unique to each attorney. Some attorneys believe that you should file formal litigation first and then negotiate. That’s how they conduct their practice. Other attorneys feel you should engage in pre-litigation negotiations, starting with a demand letter.
There are merits to both approaches. When filing litigation first, you force the infringer to hire an attorney. I’ve heard attorneys state that the typical retainer to defend a copyright case is about $40,000. You can petition the court to file an injunction against the infringer’s usage until the case can be heard. This could potentially cripple a time-sensitive marketing campaign, potentially costing the defendant millions of dollars. Currently, judges frown on this practice unless it’s absolutely necessary to stop an infringement from going forward. An important caveat when using the approach of filing for litigation first is that all copyright cases must be filed in federal court. This isn’t a traffic ticket. It’s a big deal, and the rules are different in federal court. For example, in order to dismiss a federal case, both parties must agree. Let’s say you wrongly accused someone, and they had to put up $40,000 to defend themselves. They are going to want to recover their damages from you. They don’t have to agree to dismiss the case, and they now have leverage.
It’s my opinion that in most circumstances, pre-litigation negotiation offers a greater number of benefits. By sending a demand letter, the defendant is still going to have to hire an attorney, but it could be much less expensive, possibly even an hourly fee. However, the threat of the retainer is hanging over their head, which gives them a clear pre-formal litigation framework for negotiating. Once they do engage in negotiating, they are going to try to demonstrate why their use of the image is not an infringement. This is going to give you a preview of their defenses. It is like a rehearsal before formal litigation is filed. If you have weakness in your case, it’s going to be pointed out, and this gives you an opportunity to withdraw or to strengthen and clarify.
If you’ve gone through the pre-litigation negotiations and it’s been determined that litigation is required, you'll have a clearer framework for drafting the actual claim of infringement for the federal court. I have had pre-litigation negotiations last from three months to a year. If the defendant is using delaying tactics just to drag things out while continuing to use the images, this paints a really nasty picture by contrast and compare for the judge to draw conclusions about the merit of the case. I will point out that most of my pre-litigation negotiations end with a settlement. Only a few advance to filing formal litigation.
Federal Court Judges
In my opinion, the merit of the case that is presented to the court is critically important because in general, judges really do not want to hear copyright cases. Federal judges are dealing with human trafficking, drug trafficking, terrorism, murder, gross abuses of consumer fraud that are creating damages to hundreds of people, etc. Compared to those offenses, the claim, “This guy used my image!” seems less important. Even if your case is a “smoking gun” perfect demonstration of copyright infringement, if there is any legal reason why it can be thrown out of court, the judge will most likely throw it out of court. But by the same reasoning, if it’s absolutely clear you’ve done everything in your power to keep it out of court and that the defendant is the one forcing you to bring it before the court system, that pendulum swings to the other side. I’ve heard of judges pulling the defense lawyer aside and making statements like, “Settle this. Don’t bring it into my court–you won’t like the results.”
Of formal litigation copyright cases, only 2% ever see the inside of a court room; 98% are settled prior to going in front of a judge and calling witnesses. On a personal note, less than 20% of my pre-litigation claims required filing formal litigation.
Once formal litigation has been filed, the defendant must write an answer to the complaint which is filed with the court system. They typically have approximately 30 days to file their answer to your complaint. Soon after that answer, the discovery process starts, which initially lasts for four months in copyright cases. Each side gets to ask a preset number of questions in writing to the other side and ask that they provide documents relevant to the matter. Then, each side has 30 days to answer the questions and provide the documents and often, there are multiple rounds of these requests. While this process is set for four months, in some cases an extension can be granted. These extensions are often for an additional 30 days, so the discovery period can potentially last for almost half-a-year, and possibly longer.
The discovery process can be invasive, as both sides start requesting documents like every email you’ve ever sent concerning copyright ownership and every email you’ve ever sent the defendant. The purpose of asking for all these documents is to gather all the relevant information about the case, and to comb through and find anywhere in those documents that support or contradict the claims or defenses.
Near the end of the discovery period, the parties will take depositions. Just scheduling these can take anywhere from 30-to-60 days depending on the schedules of all the attorneys, defendants, and the plaintiff. Depending on how many depositions there are, this can go on for a couple of months or longer. Once the depositions are done, both sides need to consider whether to ask for another round of discovery and another round of written questions and answers.
Finally, we get to the point of being able to petition the court for "summary judgment", which means the judge can rule on the claims or defenses of the matter, or only on parts of them without the need for a jury to hear anything. This only happens when facts are not disputed, and elements of the claim or defenses are complete.
I probably should interject at this point, that in a copyright case, there are really only three questions that the entire case is there to answer:
In the summary judgment stage, the answer to the first two questions is often answered. Then if it goes to trial, the only thing that’s being decided by the jury is the amount of damages.
When a motion for summary judgment is filed, both sides get to write a response and then the other side gets to write a reply to the response. There is no requirement for a judge to rule on this kind of motion right away, but the case is paused until the judgment comes. I’ve personally been to this point a few times, and had the court take over a year to rule on the summary judgment. At that point, we were about two and a half years from the original filing of the litigation.
By this point, with answering questions and depositions, it is easy to see that you have likely invested more than a hundred hours of your time. Your attorney, on the other hand, by this point has already invested 400, 500, 600 or more hours researching the other side’s defense arguments for legal precedents that will ultimately defeat their argument.
A hundred hours of your time is roughly two and half work weeks spread over a couple years. What they don’t tell you and what you need to be mentally prepared for, is that your first case can turn into an obsession and you’re thinking about it the majority of the time. This makes it feel like you’ve invested a lot more time than you really have. Consciously deciding that it’s just part of your business plan gives you the ability to compartmentalize and not be emotionally consumed. Your attorney will frequently tell you that they are not emotionally invested in the case and that makes them more objective. If you’re going to pursue copyright enforcement, you must adopt the same attitude.
You must set aside the fact that someone stole your property–your creation–and used it for financial gain, while you’re struggling to run your business. I sometimes like to think about it from the point of view of a shoplifter. If it becomes common knowledge that it’s okay to walk into the store and take anything off the shelf and walk out, how long is that store going to stay in business? On the other hand, if it becomes common knowledge that you can’t go into this type of store and help yourself without consequences, then the business survives.
If it is impossible to disassociate themselves, the emotional toll is one of the primary reasons that photographers might decide not to enforce copyrights, or they need to create workarounds to isolate themselves.
The Cost of Litigation
I’ve spoken about the emotional cost; now let’s talk about actual dollars and cents.
I strongly recommend that if an attorney will not take the case on contingency, look for another attorney. If one cannot be found, don’t pursue the case.
With the attorneys I’ve worked with in the past, their fees are contingent on recovery. They are waiving their hourly fee for a percentage of any settlement or reward given to you by the court. This percentage is 100% negotiable between you and the attorney. Typically, it’s 33.3% for any settlements prior to formal filing of litigation. Some attorneys will give you an engagement contract that only goes up to the filing of formal litigation. But there must always be an engagement contract between you and the attorney that spells out your relationship and responsibilities.
If formal litigation has to be filed, typically a new engagement letter (or clause in the old one) may trigger a different fee structure. In some cases, it can go as high as 45-50% of anything recovered. In many cases, in fact I would say with all the attorneys I’ve worked with in firms, the contingency fee does not cover hard expenses. I am obligated to pay all hard expenses.
Note: Typically, hard expenses only kick in once you’ve filed formal litigation. At least 80% of my pre-formal litigation cases settle before I incur expenses.
What are hard expenses? They include:
The average copyright attorney may ask for a deposit to cover these hard expenses as part of their engagement contract. This can range from $10,000 to $15,000 if formal litigation is to be filed. If the law firm is large enough and the case warrants it, some attorneys will cover the hard costs and then deduct it out of your portion of the settlement or judgment. However, most of the time, attorney fees and costs are awarded to the winning side, meaning if the defendant is found guilty, they have to pay all of your costs, including your attorney fees (provided that your work was registered in a timely manner with the US copyright office).
As you can see, copyright enforcement is not a get rich quick scheme. This brings me to the question: “Is it worth it?” For me, the answer is, “YES.” If our profession becomes an open storefront where anybody can take anything they want, we are not going to have a profession for long.
Although it can be a long process, in some years it has jumped my IRS self-employment tax to over $50,000. To date, (and keep in mind I’m very meticulous about who I will go after) I’ve never lost a copyright case. My primary business model is photography. That’s what I do. That’s who I am. In 2010, I felt compelled to add copyright enforcement to my business model. Each time an image is taken, that’s a usage fee I’m not being paid. Because all my work is done for clients, I’m an assignment photographer and my clients are also being robbed. If I’m going to have my business model based on managing usage rights, I have a basic and moral responsibility to defend those usage rights that my clients have leased.
I anticipate that someday, a client is going to argue that a photographer who didn’t properly protect usage rights that were leased exclusively to them was negligent in their protections by not registering the work with the copyright office. However, your client can’t file copyright litigation unless they own the image. The only one that can file is you, the owner, the photographer.
As an FYI, the management of my copyrights represents less than 10% of my photography work responsibilities.
Again, being brutally blunt, the only thing that makes enforcement of copyright a viable addition to my business model is copyright registration. The reason it’s a valuable addition is because I’m being compensated for lost usage fees of my images that have been stolen. These usage fees are based on how the infringer used it, regardless of how the client used it. For example, I shot for a local advertisement and the infringer stole it and used it for an international advertisement. Which advertisement generates more revenue for the user? Which advertisement should have the higher usage fee because of the increased value? These are questions that must be considered.
In my opinion, collectively enforcing copyrights in the real estate community is definitely worth it financially, if you have a clear case of rights-managed images; if that’s how your business is set up. Infringers know that they cannot use images without authorization of the photographer. Numerous educational pamphlets from the national real estate association prove this. It is common knowledge that photographers lease usage rights and don’t transfer ownership. In a meeting with lawyers representing photographers together with lawyers representing the MLS, the Southern California MLS president clearly stated that they sold images to third parties for profit. Recently, I had a conversation with a photographer in Illinois who said the broker authorized numerous agents to use his images when the listings were transferred to them. When it was brought to his attention that the agreement was with a specific agent and nontransferable, the broker stated, “Real estate rules say I can do this.”
The sheer volume of images is what makes this worth it. The minimum fine for willful infringement is $750 per image. The minimum fine for innocent infringement is $200 per image. Depending on how the images were used, multiple parties may be held liable for separate infringements. I think it’s up to a lawyer to determine if the willful infringer is the MLS or the national organization of realtors. Intentionally turning a blind eye is negligence and is considered willful infringement.
Dave Ward commented that this could be a half-billion-dollar case, and I do not disagree. In fact, I think his estimate may be conservative. Think about when all the recording artists got together and screamed about their songs being shared and they weren’t getting any compensation. Make no mistake about it: Your images are a cash cow for the infringers because of the enhancement to their marketing.
The strategy I would employ is to research and establish several attorneys to start having photographers make a commitment and gathering evidence. Then, the attorneys would file cases simultaneously. There are questions a lawyer would have to answer; for example, as to whether such a class action suit is even feasible for copyright, because the rights are uniquely individual per image. But a judge does have the ability to consolidate numerous cases where the facts are all similar. It would probably be helpful for there to be a manager to help keep the photographer side organized with gathering of evidence and uniformity of claims.
I don't think it's complicated for the real estate industry to fix this problem--simply add a box for the real estate agent to check, when uploading the images that declares those images are rights-managed. This would ensure that once the house sells, the images can’t continue to be displayed, or to be re-displayed.
It’s my opinion that the real estate national association, MLS, and downstream aggregators want access to the images, and they don’t care about the law or the rights of photographers. As one photographer put it to me, “It’s unbelievable this attitude of entitlement to my images.” Unfortunately, for real estate infringers, their sense of entitlement is contrary to law.