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Thursday, July 05, 2007

The glass is neither half empty nor half full

My last (substantive) blog posting was about images being stolen. Drudging through the virtual bags of email I received in response, of those that came from photographers, they had one of two kinds of stories to tell. (Or rather, they sent links to websites that had stories told by other photographers.)

One type of story involved photographers with nightmarish experiences dealing with copyright infringers; the other type of story were really just news articles about cases involving copyright infringement.

In both of these cases, photographers are making very classic signature errors of poor business thinking. In almost every case, photographers are classic "glass half empty" people--they're always looking at how [topic-of-the-day] is "bad for photographers." So, for this blog entry, I want to examine both categories of emails I received above, and examine photographers' reactions.

Photographers Representing Themselves
The stories about photographers who've tried in vain to get copyright infringers to "pay up" are touching and incite great emotional empathy, but I would be remiss if I said I shed anything but crocodile tears. I would like to re-emphasize a point I should have more strenuously expressed in my original post:


You certainly can try, but the moment things begin to go even the least bit wrong, I run out of sympathy for you. Here's why: the reality of life is that circumstances are never quite so cut and dry as one would like to believe. The strength of your particular case will run along a spectrum from "slam dunk" to "not a snowball's chance in hell." In either case, it is never, ever one worth pursuing without a lawyer for these reasons:

You will never, ever recover as much money alone as you would with the help of a lawyer.

You will never, ever be as persuasive to an infringer as a lawyer would.

You will spend more time on the matter than spending time building
your business, thereby ending up losing more money over time than anything you may gain in the short term.

You are too emotionally involved.

Heck, even lawyers never, ever represent themselves in cases. They hire other lawyers to represent them. There's a really old and famous quote, "A lawyer who represents himself in court has an idiot for a client."

So if your immediate response is, "I can't afford a lawyer," you're thinking with your heart, not your head. Instead, the rule of thumb is, "if a lawyer won't take the case, then there's no case."

How can you tell whether a case is worthwhile? Not just by whether a lawyer will take it, but by whether they will take it on contingency. Remember, lawyers run businesses too, and yes, they are often paid by the hour. But, given that there are only so many hours in a day, they will top-out on their potential income if that's the only way to make money. "Contingency" cases are opportunities for them to make more money than their hourly rate may yield. But they only want to do that for cases that are so likely to succeed, that their decision to spend their own time pursuing them are likely to pay off.

Which brings us back to your case--the stronger it is, the more likely it is a lawyer make more money on contingency because the awards for copyright infringement are very, very high.

(Indeed, if you could afford it, it's better for you to pay the lawyer by the hour for strong cases, because your income will likely be much higher.)

By contrast, if your case is weaker, a lawyer will certainly be happy to take your money on an hourly rate to write letters, but this is a good sign that you're probably not in the best legal position to win the case (or get a good settlement). And if that's the case, then just how far do you think you're going to get pursuing it yourself without a lawyer?

Also note, it's not just the case itself, but other details, like who the client is. One guy told me a heart-wrenching story of his claim against a copyright infringer in Russia that ultimately got so fed up with him, that they sent a big guy to his house to say, "stop it or bad things will happen to you." Hint: you don't want this, and neither will a lawyer.

If you take any legal matter in your own hands, you're going to get exactly what you paid for: nothing.

...unless you're really lucky.

Oh, and one more thing: just as not all photographers can shoot anything well just because they have a camera and are pros, not all lawyers know how to represent all cases. It is especially the case with copyright law and intellectual property. So, don't just seek any lawyer, seek one that specializes in IP law. Don't know what "IP" is? Then all the more reason you should never handle a case yourself.

Settlements Do Not Establish Precedent
The other kind of stories sent to me were links to news items that involved settlements between photographers and infringers like this one.

This link is a PDN article about how a photographer accepted a settlement from a tobacco company because they used a photo that was very much like his, but shot by a different photographer. They wanted to use the original photographer's image, but he refused for ethical reasons. So, the company hired another photographer to do a similar shot. The first photographer filed a claim, but the company settled out of court for $110,000.

It's a fine story and a newsworthy article, but the problem is that photographers believe that these kinds of cases establish legal precedent, and they do not. In my last email to someone on this subject, I posed this:

Would you consider this to be any more of a valid legal position than if McDonalds settled a claim by paying $110K to someone who claims to be burned by spilling hot coffee on their lap?

Just because a company deems it to be less expensive to settle a case than to fight it in court, does not establish it as legal precedent by courts or (smart) lawyers. Therefore, don't let your head start spinning with ideas about how you're going to sue someone for using an image that happens to look like yours. It's probably not quite that simple in reality, even for those cases that sure appear to be cut and dry.

A case in point is this one, as posted in photo business news & forum. Here, Louis Psihoyos produced an image that Apple Computer was interested in licensing for use in a product promotion for Apple TV. The business negotiations fell through, and Apple ended up using a "similar" image. Psihoyos sued, and we're in limbo to see what happens next. We don't know any details beyond what was reported, but the photo forums have already ruled on their own, as the blogger who posted the link provided above noted: "I am disappointed." Yet, what appears to us photographers to be a clear case is very highly likely to involve much more complicated (and legitimate) matters that are not yet known, nor established.

Photographers may look at this news story and say, "yet another case where a photographer is victimized," whereas a smart business person will look at it and ask, "what are the details? How will it come out? What are the precedents if a ruling is made?"

It all reminds me of this witty quip by comedian Steven Wright:

Some people see a glass that's half empty.
Some people see a glass that's half full.
I see a glass that's twice as big as it needs to be."

As an artist, you should definitely have an attachment to your art and to your brethren in the photo community. But smart business thinking requires the discipline to disassociate those feelings and see things for the objective realities that they are. Even a case that ruled in favor of "your team" should not be paraded around and heralded as a symbol of your success against your adversaries. You should look upon such cases with sober analysis, and see where your future liabilities are and prepare for them accordingly.

Remember, the photographer who won in the case filed against him by the Rock and Roll Hall of Fame had lost many times in court before the final appeal went in his favor. (You can read about the case here.) The presiding judges were split by one vote. Yes, this is legal precedent, but any photographer that stereotypically oversimplifies such a case and banters about how other photographers can do the same in discussion groups are exceedingly likely to find that decisions in future cases may involve subtle differentiations in their circumstances that cause the pendulum to swing in the other direction.

My strong advice to photographers are these:

  1. Do not oversimplify your perception of business and/or legal issues. The real-world requires deeper analysis, and decisions are best made when you conscientiously weigh factors that work for or against you.

  2. See the glass, not the water in it. If you find yourself "rooting for the photographer," then you're more of the cheerleader on the sidelines than you are the quarterback on the field. Disassociate your emotional desire for one kind of outcome or another with your business or legal analysis.

  3. Think smart about how you use your time and resources. Don't let the feeling of being victimized interfere with sound business judgment on involving copyright infringements (or anything else). We all hate it when our photos are stolen, but pursuing violations on your own is a very bad business strategy, and a disastrous legal one. Yes, there is really good money to be made from copyright infringements, but money isn't just there for the taking. The catch-22 is: you can't get that money alone. You have to use outside legal help, or you are surely the lawyer who has an idiot for a client.

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