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Author Topic: Intellectual Properties Violation  (Read 539 times)

tcphoto1

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Intellectual Properties Violation
« on: December 13, 2022, 03:23:06 pm »

I've been shooting professionally for twenty-eight years and have only had a couple small violations of my licensing agreement. Six months ago, I shot for a medium sized business and it has been a nightmare. We agreed upon a defined number of images to be delivered and after the shoot, they "demanded" three times the agreed amount without further compensation. Then they said, "we don't need editing, send us the RAW files". After an unpleasant exchange where they threatened with their Attorney, they calmed down and went back to our original agreement.

I sent low resolution digital proof sheets the day after the shoot and a week later I see that they copied images and made two short videos plus a single image post. The images were not included in their selects, I'm thankful to have registered the images with the US LOC and I received the Certificate last week in the mail. I contacted my Attorney as soon as I saw the posts but he's been rather uninformative as to what the case is worth. I'm looking at nine images, most used multiple times in the two videos plus the single image that was posted.

I'm curious what those that have gone through this process have settled for or a little more insight to the process. TIA
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JoeKitchen

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Re: Intellectual Properties Violation
« Reply #1 on: December 15, 2022, 07:52:10 am »

I've been shooting professionally for twenty-eight years and have only had a couple small violations of my licensing agreement. Six months ago, I shot for a medium sized business and it has been a nightmare. We agreed upon a defined number of images to be delivered and after the shoot, they "demanded" three times the agreed amount without further compensation. Then they said, "we don't need editing, send us the RAW files". After an unpleasant exchange where they threatened with their Attorney, they calmed down and went back to our original agreement.

I sent low resolution digital proof sheets the day after the shoot and a week later I see that they copied images and made two short videos plus a single image post. The images were not included in their selects, I'm thankful to have registered the images with the US LOC and I received the Certificate last week in the mail. I contacted my Attorney as soon as I saw the posts but he's been rather uninformative as to what the case is worth. I'm looking at nine images, most used multiple times in the two videos plus the single image that was posted.

I'm curious what those that have gone through this process have settled for or a little more insight to the process. TIA

First question, has it been more than 90 days since you created the images?  The reason I ask is because without resgitering your image with the USA Library of Congress, you have little to no recourse.  If they are registered, you have full protection and the ability to sue for punitive damages of $125K per violation plus attorney fees, so long as the images were registered before the violation has occurred.  However, congress does allow for a 90 day grace period from the moment of creation to be able to register your images as "unpublished."  Images registered as unpublished have full protection regardless if the violation occurred before registration.

Second, do you have a signed contract with all of the specifics? 

Third, does your contract have a term that states licensing/rights/usage in only transferred to the client once photographer is paid in full?  And another, full payment is due regardless if images are used or not? 

If yes to all of these, I would register your images asap and before you do anything else.  Then notify the client that you register your images for full protection under the law and if they do not abide by the contract terms you will be forced to look into what your next steps are for their copyright violation.  It will take a couple of weeks to get the hard copy of the certificate of registration, however tell them that you would be happy to send them a copy when it comes in the mail. 

In most cases, any decent lawyer will know a copyright case over images that were registered is a loosing battle, and more then likely will go back to the contract terms.  If not, it is now up to you if you want to hire a intellectual property rights attorney and move forward with a federal lawsuit.  If they have used a dozen images already before paying you in full (and you have that clause in your contract), then that is a 12 x $125K case plus your attorney fees. 

Now, if it has been past 90 days, you can still register your images, however you will need to do so as "published," and you will need to group all of the images captured for that project together.  You could still used this as a bargaining device and threat, but it has much littler teeth for any violations that occurred before the registration.  Essentially you will need to hope they do not call your bluff. 

Now with all of this being said, if this is the only time in your career that you have registered images, the opposing legal team will make the arguement that you only did so in this case due to prejudice you have against this client.  Not a great argument, but one reason to always ...



Register your images!  Do it once a quarter for all images created that quarter.  You can group all images from all projects when registering them as "unpublished."  A "published" registration can only be of the images captured from the same project.  FYI, the difference between published and unpublished is very nuanced; the only clear delineation of the two is prior to 90 days from creation, it is automatically "unpublished," otherwise best to register them as "published."  So, get in the habit of doing it once a quarter!
« Last Edit: December 15, 2022, 08:02:33 am by JoeKitchen »
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tcphoto1

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Re: Intellectual Properties Violation
« Reply #2 on: December 15, 2022, 10:19:34 am »

Joe, I appreciate your response and yes I have my signed contract from the shoot which covers deliverables, licensing and payment terms. The images were registered the day that I sent the client digital proof sheets. They were registered as Published, I just received the Registration Certificate and my Attorney specializes in Intellectual Property Law. I made the post to see what others have experienced with settlements, my Attorney hasn't talked specifically about money just about the process, the clients response to our letter and he then asked me what my number is to settle. The clients Attorney acknowledged the violation and the desire to settle but I haven't heard a word since. It has been six months since they violated our Licensing Agreement and I know I've got to have patience and I was curious about others experience.
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bdkphoto

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Re: Intellectual Properties Violation
« Reply #3 on: December 15, 2022, 11:52:16 am »

There's a few ways of approaching this - first keep in mind there is now a Copyright Claims Board (small claims court / arbitration ) that does not require attorneys which could be an alternate venue and keep costs reasonable as you seek a settlement. It sounds like you are on the right path already - just figure out what you need to cover the additional use from the client and decide whether you want to be magnanimous and offer a retroactive additional license for the non-contracted usage or whether you want to be punitive with your fees. It sounds like you are already in the negotiating phase - so figure out what you want and settle. I will always opt to stay out of filing an infringement suit if I can - keep in mind that burning bridges with clients is never a good thing as our business mostly referrals and word of mouth, a reasonable settlement allows you to move on and keep the vitriol to a minimum.

tcphoto1

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Re: Intellectual Properties Violation
« Reply #4 on: December 15, 2022, 01:29:31 pm »

The Representative of the client, Marketing Director/AD/Food Stylist tried to bully me every step of the way. After the shoot, she demanded 96 RAW files instead of the agreed 30 edited JPEG's and she threatened me with their Attorney. She told me that she's worked with over 100 photographers and I was the only one to refuse delivering RAW files. She then wrote me emails saying that she'd never recommend me, the email thread is quite interesting and I'll use it against her if needed. This is my first "Client from hell" in my twenty-eight year career and I'm going to hold out to cause her as much pain as possible. Their Attorney wrote that they still want to work with me and she had been disciplined by the actual client but that doesn't carry any weight in my mind, a little sit-down by her boss has nothing to do with me. Why would I continue working with someone that has disrespected me so badly?
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JoeKitchen

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Re: Intellectual Properties Violation
« Reply #5 on: December 16, 2022, 11:47:33 am »

Joe, I appreciate your response and yes I have my signed contract from the shoot which covers deliverables, licensing and payment terms. The images were registered the day that I sent the client digital proof sheets. They were registered as Published, I just received the Registration Certificate and my Attorney specializes in Intellectual Property Law. I made the post to see what others have experienced with settlements, my Attorney hasn't talked specifically about money just about the process, the clients response to our letter and he then asked me what my number is to settle. The clients Attorney acknowledged the violation and the desire to settle but I haven't heard a word since. It has been six months since they violated our Licensing Agreement and I know I've got to have patience and I was curious about others experience.

Great to hear to registered your images prior to sending them over. 

I have never made it to the "hire a lawyer" step, at least not for copyright violation. 
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