Best Business Practices for Photographers [169]
(6) It is understood and agreed by the parties that this Agreement is in compromise of a disputed claim and that consideration paid is not to be construed as an admission of liability on the part of infringer.
(7) This Agreement contains the entire agreement of the parties with respect to the matters covered by this Agreement. No other agreement, statement or promise made by any party, or any employees, officer or agent of any party, which is not contained in this Agreement shall be binding or valid.
(8) If any term, provision, covenant, or condition of this Agreement is held by a court or regulatory body of competent jurisdiction to be invalid, void, or unenforceable, the rest of the Agreement will remain in full force and effect and shall in no way be affected, impaired, or invalidated. Furthermore, in lieu of such illegal, invalid, or unenforceable provision, there will be added automatically as a part of this Agreement a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and legal, valid and enforceable.
(9) The parties agree that this Agreement may only be modified by an instrument in writing duly executed by an authorized representative of each of the parties hereto.
(10) The parties hereto state that they have carefully read this Agreement, that they fully understand its final and binding effect, that the only promises made to them in signing this Agreement are those stated above, and that this Agreement is executed freely and voluntarily after consideration of all relevant information and data.
(11) This Agreement shall be construed and interpreted in accordance with the laws of the State of [your state, or theirs, depending upon how you negotiate].
(12) This Agreement may executed in multiple counterparts, each of which shall be an original as against the parties who signed it and all of which shall constitute one and the same document. Any facsimile signature of any party hereto shall constitute a legal, valid and binding execution by such party.
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the dates specified below.
[They sign, you sign.]
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One final note about settlements. Corporations typically have insurance or a sizeable bank balance that will cover them in the event of a loss that results from an infringement claim. Do not let your settlement negotiations become personal. The company can outspend and out-lawyer you tenfold. Be fair and be reasonable when considering settlement offers and making responses to them. I'll paraphrase from the movie Top Gun, where the lead character, Maverick, was dangerously showing off during a flight school demonstration and was admonished, "Don't let your ego write checks that your body can't cash." So, too, don't let your ego write checks that your bank account can't cash.
Case Study: A DMCA Violation
More and more, you will find infringers on the Internet—from the mindset of "If I found the photo on the Internet, it must be okay to copy" to "What harm was done? I put the photo up on the Internet. It's not like I am selling copies or it or making money from it." These and countless other examples will be the response when you tell someone that they have infringed your copyright by placing images of yours on the Internet without your permission.
Fortunately, the Internet service providers that own the computers that make up the Internet did not want to be held legally liable for any copyright infringements committed by their customers. Enter the Digital Millennium Copyright Act. In short, the DMCA stipulated that the Internet service providers couldn't possibly police what their customers were uploading to the Internet and that, they should not be liable for the acts of their customers. The DMCA provides that these corporations provide clear contact information and are responsive to the requests of copyright owners to remove the infringing images, these corporations were absolved of liability in these instances.
The good thing