Best Business Practices for Photographers [164]
When you've gotten yourself together and given the situation some thought, begin to gather all the facts you can. These facts range from contracts signed by the client, to e-mail dialogues between you and the client, to proof of the infringement when it's ongoing (for example, a PDF printout of the website), to photographs of a billboard that has your image, and so on. Collect whatever proof you have that your work was infringed.
The most important thing will be to obtain your Copyright Registration Certificate for the registration that contains that image. You didn't have it registered? Well, register it right away. I mean today. That registration is your ticket into federal court. Without it, you may not file a copyright infringement suit, and the first thing that will happen when your attorney contacts the client's attorney is that the client's attorney will ask, "Was the alleged infringing image registered?" Once the Copyright Office has received the paperwork, as of that date the work is registered, so the truthful answer will be, as of the day after it was sent via overnight express, "Why yes, that image was registered." Of course, the next question will be "When?" And your attorney will have to then defer this answer, if possible.
This brings me to the "should I get an attorney" question, and the short answer is an emphatic yes! The long answer is also yes, but more on how/why/when later in this chapter. If you go it alone, you'll be at a disadvantage because you will be dealing with an attorney on their side who knows all too well how to distract, evade, diminish the value of your work, and collect statements from you that could come back and have a negative impact on your case.
Timeline of an Infringement
First things first: You'll become aware of the infringement. Whether you stumble across it or search for it because you thought it might exist or a colleague tells you about it, the genesis of your circumstances is your awareness of it. This, however, should not be confused with when the infringement began or the extent of it. The infringement could have been going on for some time, in many areas and in numerous media. Do not assume that the first time you became aware of it is when the infringement started.
Types of Infringers
Because there are numerous types of infringers, I would first reach out to the infringing party. The following sections discuss the most likely ones, but the list is by no means complete. These simply are the ones you are most likely to encounter and my approach to them.
The Preexisting Client
For preexisting clients, the infringement may be an oversight. I tend to take a lighter approach to dealing with these types of infringements. Usually, an amicable resolution can be achieved, especially when it's fairly easy to see what the original terms were, and a reasonable person will conclude that the infringement is outside of that scope. However, the settlement is not typically the same fee you'd have charged had they negotiated this use in advance. The settlement is for a retroactive license and is much more costly than if things had been handled correctly in the beginning.
The Third Party Who Legitimately Obtained Your Image(s) but Is Using Them Outside of the Scope of the License
In some instances, you might have licensed