Best Business Practices for Photographers [166]
Rather than try to spell this out as 1) You'll file, 2) They'll respond with a request for dismissal, 3) You'll respond, 4) There will be depositions, 5) There will be pretrial motions, 6) There will be a trial, 7) There will be a verdict, I'll try to explain it somewhat differently.
An infringement suit will take years to resolve. All the while, you will be incurring charges for every e-mail exchange your attorney has on your behalf with you and/or the defendant, as well as all their time reviewing case law and drafting memorandums, and so on. The expenses of an infringement suit can easily grow to $50,000 to $100,000 when all is said and done. In the end, when the images are registered, all these bills are often paid by the infringing party (as is allowable by law for registered images), but they are not a factor when the image was not registered beforehand, save for your inclusion of consideration of the bills when engaging in settlement talks. Thus, the cost and difficulty of registering are grossly outweighed by the successful conclusion of even one case of infringement.
When to Engage an Attorney
The short answer to the question of when to engage an attorney is as soon as possible. You'll be a "newbie" to the process, at least for the first infringement you have to handle, and an attorney will use his or her years of experience to ensure that you (and your rights) are not trampled on or limited. In all candor, an attorney's willingness to take the case will in large part be based upon whether you've registered your images in a timely manner prior to the infringement in question.
An attorney will know to ask about other uses. He will not make statements such as, "We'll be charging three times the original licensing fee," because that will limit your ability to make a larger claim later. He will appropriately press for other infringing uses, and he will be taken seriously when he calls the infringing party's legal counsel. In most cases, a call by you will not be taken seriously or even routed to the proper company officials. You will be at a disadvantage.
Before an infringement occurs, take the time to find a local attorney. Usually, meeting with the attorney the first time is free, when you simply are indicating you'd like to be able to call upon the attorney when you're infringed. This first meeting gives you a chance to decide whether you like this person, and the attorney can decide whether you're someone he'd want to represent. This preliminary meeting should cost you nothing, but it should give you peace of mind, knowing just who you'll actually call when you write to an infringing party, "You'll be hearing from my attorney." Make sure, though, that your attorney is qualified to be handling this type of case!
There are several resources that can assist you in hiring an attorney. My first recommendation would be to seek out word-of-mouth recommendations from colleagues. If you are not satisfied with those recommendations or you are not getting the information that way, I would recommend contacting a professional association you are a member of (such as ASMP, APA, NPPA, PP of A) or reviewing ads in photo-related trade journals, such as Photo District News. Typically, attorneys who have aligned themselves with photo-trade organizations or are actively pursuing that line of business are likely to be more aware of photo-related infringement issues and case history.
Settlement Agreements
A settlement agreement takes a basic form:
We did nothing wrong, and this agreement does not admit wrongdoing.
You've made a claim, and this agreement does not validate that claim. We both agree that a settlement for $XX,XXX is in both parties' best interests to resolve this matter.
You agree not to sue us about this