Even if you handle copyright correctly, getting compensated once there is an infringement can be difficult.
In March 2005, Hans Halberstadt got a call from a potential client in Sweden asking for a price for one his images. The client wanted it for a banner in a trade show. The image was found on Hans' Web site: www.militaryphoto.com. The client sent Hans a PDF of the design as an aid to establish a price, and Hans discovered that instead of a single image, the design contained three of his photos.
Since he has never authorized anyone else to license rights to his images, he immediately asked where the client got the other two. The client had bought them from Copshots.com.
After checking further, Hans discovered that several hundred of his model-released images were being offered for sale on Copshots. All had been bulk-registered and most had his copyright information in the IPTC header.
The first step was to determine how Copshots got the images.
Hans had worked with a production manager when these images were produced and had given the production manager copies of the files for his own portfolio. The production manager had been contacted by Copshots for images they could use in their new stock photo business. He sent them a disk with his images. On the same disk were the Halberstadt images. He told Copshots that the disk included only some usable images; others were off-limits. Still, all the images ended up on Copshots.com.
Soon after his discovery, Hans contacted Copshots and spoke to CEO Jonathan Grace. Grace was initially very courteous and helpful. He acknowledged that he had over 300 of Hans' images on the site, insisted there had only been "a dozen or so" sales and immediately pulled the images off. At that point, Hans would have been willing to settle for a few thousand dollars but wanted to review sales records and download logs. Grace refused to supply records relative to what had been licensed or downloaded.
Then the attorney duel began. Grace hired an attorney. After months of fruitless negotiation, in May 2005, Hans filed a suit at the U.S. District Court for the Northern District of California. The judge forcefully encouraged the parties to settle the case and assigned them to a magistrate who scheduled a settlement conference.
After much wrangling before the magistrate, it was finally agreed that Grace would pay Hans $20,000 in $500-a-month installments. If he failed to make a payment in any month, the total owed would rise to $50,000 minus anything already paid and be due immediately. Grace made three payments and then notified Hans that he was broke and didn't intend to pay any more.
At this point, it became necessary for Hans to hire a different attorney who specialized in
collections in an effort to recover the balance owed. It is important to note here that Hans lives in San Jose, near San Francisco, while Grace (despite his claim of poverty) lives in a gated community on a golf course in Orange County, Â south of Los Angeles.
To collect, it was necessary to bring Grace into court again and to accomplish that, the law requires that the defendant be personally served with a subpoena. Grace ignored the first debtor examination hearing date, resulting in a second subpoena being issued and a new hearing date.
Grace showed the second time, but didn't bring the records the judge had required. A new trial date was set, which Grace ignored. Finally, after a fourth subpoena and examination of his wife, Grace agreed to pay Hans $20,000, which has been paid.
In addition to attorney's fees and the costs in preparing for the settlement conference, Hans was required to make four trips to Orange County for the four hearings there.
Total costs for him are estimated at well over $10,000.
Lessons Learned
1. Register the copyrights to your work before it is shown to anyone and in advance of infringement.
2. Â Be sure to put all your copyright information in the IPTC header of the digital file including your contact information.
3. Â Before contacting an infringer, make every effort to document the infringement. (The fact that the infringer pulled everything down immediately, made it more difficult to prove the infringement later.)
4. Â Make every effort not to go to court. Try to find some reasonable compromise.
5. If you use an attorney, find one who understands copyright law.