A Business Matter ... What Would You Do?

[John Bailey]

Dear Michael

I tend to agree with the approach of gentle persuasion. However, making lemons into lemonade, you may now be able to feature their use of your work in some of your self-promotional efforts.

You may wish to read an article on the front page of the second section of this week's Wednesday Wall Street Journal. Somewhat similar, it talks about ad creators who create ads on spec. Now, I am not suggesting you do that, but the article was of interest looking at how certain people are trying to garner business. In part and quoting the Wall Street Journal, the article reads:

"Ad Creators Spend Their Own Money To Get Noticed by Working on Spec

By VANESSA O'CONNELL Staff Reporter of THE WALL STREET JOURNAL

Burke Wood, a free-lance director of commercials, recently spent $32,000 to make two ads he hopes will attract new clients. Though he hasn't told his wife yet about the expenditure, he insists the money was well spent.

In a reflection of how deep the advertising recession has struck, Mr. Wood and other free-lance and out-of-work ad executives now are churning out "speculative ads," or sample commercials for brands and products -- often at great personal expense. In his case, Mr. Wood, a 37-year-old father of two, has created a reel that includes commercials for Snickers, the candy bar owned by Mars Inc., and 1-800- Flowers, the national delivery service. Neither company has paid for the work so far. But Mr. Wood contends he has to show his abilities somehow. "Nobody is going to give you a chance unless they see you are capable," he says."

Best of luck in your efforts to win compensation or recognition.

Regards,

John Bailey

[Ellis Vener]

my sense is that most of the people who have responded here are not professionals and have no idea of the amount of money involved in a client creating, and buying ad space in magazines. in general, the cost of having a professional photographer create work for an ad is about ten percent for a national ad campaign and a higher percentage for small ads. For all of you who are advocating a 'gentle approach" let's review the facts that Michael has put forth:

1.) "I made follow up phone calls and e-mails, which were either ignored, or answered with the reply "We are very busy, and haven?t had time to look at them? - but that they would call me shortly, which never occurred."

In other words he tried a gentle approach and was blown off. having an attorney write a demand letter and do the negotiation for you doesn't have to be hostile or ungentle -- in many ways it makes for a cleaner negoiation process because your ego and the ego of the resposnsible person on the other side are removed from the process. the outcome you desire needs to be fair to both sides, even if the people who do not want to pay you get upset by having to pay you. Litigation itself should be the very last thing you or they want.

Further Michael does not currently know how else the image is being used by the client.

And let's not forget, the client is gaining financially by using your work. Not just by not paying you, but also the advertising has real tangible money making value to the client.

In short he needs to be paid. Copyright violation claims are not matters for small claims courts: it is a federal matter. Small claims court judgements still force you to go after the defendent (in the event you win) to get them to pay up. that can stretch out the process and make the whole mess worse, in my experience.

[tim atherton]

to the last message, true,

and I must admit to having read the initial post in a little haste.

However, it should be pointed out that for full blown litigation, you need to have a). deep pockets (you need to hire an specialised intellectual property lawyer) and b). MUST have registered copyright. Most lawyers will be very loath to take the case without the prospect of the substantial damages and protections that registration brings.

You must also decide if you are going after copyright infringement or breach of contract (and did you or didn't you have paperwork).

(PS - my small claims court experience has been in Canada where, in my juridiction anyway, a). Copyright law is vastly different from the US (generally not as much protection, but gotta love scaring abusers with "Criminal Copyright Infringement and possible time in jail...) b.) It has been for editorial misuse and the "fee" I have asked for has been under the small claims court limit and c). here, if they don't pay up, I can send the Sheriff to seize things and sell it, which onj the only occassion I did that, has led to them paying up quick!

I have also persued copyright infringement in the US, but through an Agency.

Tim A

[Kevin Crisp]

I read the original post as relating a problem in getting a response to the original submission, not that an attempt had been made informally to call them on the unauthorized and uncompensated use of the image. As I read the original post, two years passed between the submission and the discovery of the use of the photographer's work. Again, given the turn over at the potential client, it could be a completely innocent error on the part of the potential customer. Attorneys love people who want to threaten or -- better yet -- sue before trying to work something out reasonably. A suit should be the last resort, only undertaken after the failure of everything else reasonable you can think of. A threatening letter which immediately takes the matter from the hands of somebody non-legal who doesn't really want a problem and who doesn't want to hire a lawyer and gives it to someone who likes to litigate often doesn't advance the cause much. Certainly a copyright action can be filed in federal court, but under many many circumstances even a successful plaintiff has to pay their own attorneys' fees. The fees which can result from litigating a federal court case can boggle your mind. (Hence the expression "making a federal case out of it.") I took a class in business litigation and the professor started off the first session by telling us there was no such thing as business litigation because it is always bad business to litigate. Certainly an overstatement, but that observation is true far more than it isn't. If Michael thinks that the fair value of his work is within the jurisdiction of the small claims court ($5000 or so most places, but this varies) than that is a quick and easy way to go that does not involve lawyers. At least in my state, the defendant isn't allowed to hire a lawyer to represent them/it. I didn't mean to imply (and none of the peace-niks did) that Michael hasn't been wronged and that he shouldn't do something about it. If you start off with a suit, you better make sure (in the immortal words of Spinaltap) that your "amp goes to 11."

[Jim Billlups]

And if Michael looses in court, guess who pays the defendant?s attorney fees... Michael does. The odds are that if it ever got to court, both of you would probably be unhappy with the outcome. Try the gentle approach. Look at this as a valuable learning experience. I think we are talking more about principal rather than the money here. Perhaps it times to put it to rest and move on.

[Mike Mahoney]

Thanks for the responses, I really appreciate the information - as a point of clarification, I had contacted them over a period of eight to nine months after the initial samples, thus moving the time period from my last contact with them to the actual use of the image to be about sixteen months. Also, although my contact person is no longer with the firm, at least one other senior person was aware of my initial agreement with them, although not directly involved. My gut tells me they are trying to get something for nothing, and it's not a simple clerical error or not knowing where the image originated.

I've decided to invoice them for the image, with a covering letter outlining copyright, asking for the return of the other samples, and state no further use of any images without prior arrangement. If I don't receive payment in 90 days it's off to the lawyers. Some of you may see me as softhearted, but I'd still like to give them a chance to pay up before going legal.

[Kevin Crisp]

30 days tops, do the math for them; i.e., if I don't receive payment from you by December 29, 2001...

[Walter Glover]

Michael,

I have just read your response to the responses. I would advise caution.

Certainly, you must invoice the offending party but think twice before writing your own interpretation of Copyright Law and a ball-by-ball account of the unfortunate history of this farce. You are too close to the matter and your passions will cloud your judgement. They will determine by your manner and acumen what sort of challenge they face. The more you tell them about yourself the better armed they are!

Exhorbitant financial claims are bound to prompt their inactivity and delay the process while they consider what to do with such capricious demands. Seek a fair remuneration for the use of the photographs within 7 days and never forget the lesson you have learned.

If they do not respond to your satisfaction within the prescribed period THEN contact the Publishers, and all other parties in the chain of production and rattle their cage.

You must first make a written claim for them to ignore before any attempt at legal recourse is effective. The first question a magistrate would want to know is what attempts you made to secure a peaceful settlement.

Had they gained access to your photograph(s) by covert means it would be fair to go in with both guns blazing, but that is not the case. You gave them access to the material yourself and, having established that communication, it would be considered essential that you pursue normal business practice to gain satisfaction. That is: an Invoice.

I've operated as a commercial photographer since 1965 and have seen and experienced two philosophies in action with regard matters like this. The dog-with-a-rag-in-its-mouth approach where folk often limp away having shot themselves in the foot; and the studied, steady approach complying with accepted business procedures and following a course of reason and logic and satisfying the expectations of the judiciary which gets the folk in power (ie: The Court) on your side.

Calculated restraint ... WG