Copyright Protection: Part 3 - Taking Action - Resolution

After you discover unauthorized use of your photographs, collect and organize all the evidence, research license fees, and thoroughly document all the uses in your chart, it is time to take action. You may choose to approach the offender directly, or you may choose to turn your information over to your attorney and let them manage the case for you. Working directly with the offender is to your benefit for multiple reasons, but also has potential problems if not done properly.

Some photographers prepare an invoice and send it to the copyright infringer with a cover letter explaining that unauthorized uses have been discovered and that the enclosed invoice represents an offer to settle a claim. These cover letters explain that if the offender pays the invoice the author will consider the case closed, and if the offender chooses to not pay the invoice the author will consult with their attorney and take appropriate action from there. Some photographers choose to call the offender directly and actively negotiate with them first. You have to decide for yourself what approach is best for your specific case. You should consider whether this is a long-time client who possibly misunderstood their license agreement, or an assistant at a publication who wasn't aware of the agreement, or someone who purposely stole your work off your web site and willfully used it knowing they were not authorized to do so. It is not necessary to bring out the jack hammer every time when a chisel may well do the job.

However you choose to engage the offender, engaging first without lawyers has the following benefits:

• Documents your attempt to settle amicably without involving lawyers and the court.
• Documents your goodwill and the offenders lack thereof should it ever go to court.
• Saves you attorney fees if they are willing to settle with you fairly outside of court.
• Preserves a good client relationship by using the right level of response for the offense.

If you choose to engage the offender directly, document every communication exchange. Save every e-mail you send and receive. Document the date, time, length and content of every verbal conversation. Save your phone records to prove who called whom on what date(s). All of your communication with the other party is admissible in a court of law should your case ever go to trial. Be selective in what you share with the infringer in the event things do not go well in the beginning. Negotiating a copyright infringement settlement is much like playing poker. You want the other party to believe you have the necessary evidence to beat them without showing all your cards. If your case ever goes to trial, you will want surprises that they will not be prepared for.

Be aware that engaging directly with the copyright infringer also has these potential risks:

• If you send an invoice, it may become evidence against you by limiting the amount you are awarded by the court.
• You could sued for violating the musician's "right of publicity" depending on how you have used photographs of the artist.
• You may be sued for declaratory judgement, meaning a court defines a relationship but awards no remedies.

Some infringers will be humble and apologetic, and will want to work with you to settle your concerns peacefully. Others will go to great lengths to avoid paying you. For people in the latter category, expect harsh tactics such as threatening your reputation in the industry, accusing you of being unprofessional, threatening to counter-sue you, and more. Don't be intimidated by this. It is a smoke screen to avoid paying you for the use of your work. Stand your ground with confidence knowing that you have all your information organized. Don't be afraid to get your lawyer involved if necessary. Your lawyer is your advocate. They are familiar with all the bullying tactics the other party may throw at you, and they will know how to respond appropriately.

© 2007 Walter Rowe. All rights reserved.

Author: Walter Rowe
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