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By Root 4040 0

a portrait to a client for publicity surrounding an event. As a result, the client distributed the image(s) to the news media, who may have legitimately used the image in a story about the client, but then two years later, when that individual leaves the company or is at another company, your photo may reappear outside of the term of the license time-wise or not in conjunction with the original commissioning party. When you point this out to the publication—often a newspaper—they will begin by stating their file photo policy, but that doesn't mean that the policy can be the basis for protection from an infringement, especially if there was a sticker or imprint on the reverse of the print with your name/contact information/rights granted/term of granting or that same information was in the metadata of a file. You will also likely find yourself settling these types of infringements.

Case Study: A Quickly Resolved Infringement

I was photographing the inventor of a device that almost every American uses at least three to four times a week. This device was being inducted into a museum, and I was contracted by a party affiliated with the device to photograph the induction ceremony. I did, and the images were distributed to the news media. Although it was appropriate to use the image of the inventor with the device, repurposing the photograph into an online encyclopedia that one media conglomerate had was not consistent with the rights granted. A brief dialogue with the infringing party resulted in a reasonable settlement agreement.

A Licensor Who Stated One (or a Limited, Smaller) Use and Who Is Using It in a Much More Expansive Way

These folks can sometimes be deceitful. They may decide they only want to pay a few hundred dollars for a quarter-page one-time use in a 5,000 press run brochure, and so they make that statement. Then, they run off tens of thousands of brochures or use the image in more than one brochure or in a larger size. Sometimes with a change of personnel there might be an attempt to suggest the infringement was innocent or accidental, but even in an accident such as between two drivers, someone has to pay the wronged party. I feel that for this type of infringement, especially when it was a lower press run that turns into a larger one, a much more aggressive approach should be taken. Depending upon the extent of the infringement, although a settlement is likely, it might take a formal filing of an infringement claim to force constructive settlement talks.

A Potential Client Who Reviewed/Considered Your Work and Stated They Were Not Using It, but Then Did

This type of infringement is, in my book, worse than outright theft. To me, there's outright malice in this infringement. In short, more often than not they lied to avoid paying you, and you caught them. Sure, I accept that there are circumstances in which an "innocent" mistake or oversight might have occurred, but that doesn't mean there are not consequences for this. I'd be much more inclined to bring a claim early, because I don't take kindly to thieves.

The Outright Thief

These folks often—especially with online uses and blogs—misappropriated your work from your website. Sometimes a cease-and-desist letter is all that is really necessary (discussed in Chapter 22, "Letters, Letters, Letters: Writing Like a Professional Can Solve Many Problems"). However, sometimes an aggressive approach directly to the legal department and a call to your attorney are warranted sooner rather than later.

But there are others, such as the company who contacted you for stock use of an image and who stated that they'd just shoot their own when you quoted your licensing fee—and theirs is really a copy of yours. And, there are a number of other infringers.

From this point, you'll come to a determination that either a settlement or a formal court filing is necessary. A settlement is going to be most likely when the infringing party recognizes their error, and you then go through the motions of coming to an understanding of the scope of the misuse. There is