During my forty years in the photography business, I have learned that few clients have any system for tracking the rights they purchase. Most licenses they receive are usually part of an invoice that ends up in the accounts paid folder of the accounting department.
In the case I mentioned above the publisher reprinted the book that contained the infringed photograph several times without ever contacting or paying the photographer who found out when he saw the third edition of the book in a bookstore more than five years after its first printing. As a person who has been an observer of many copyright infringement claims, I can assure you that collecting infringement damages is a difficult and costly process that can really drag on and on. There is rarely a reward at the end that makes the emotional and financial cost worth the effort. My advice for lessening the probability of negligent infringement is to always make certain that you make each licensor of your photographs aware of when their license is about to expire and how they can renew it.
The system for tracking your license expiration dates and terms is simple. Issue and attach to your invoices separate licenses that have ID numbers. When you issue a license that expires on a certain date record the license number in your calendar on a date one month before the expiration date. When you come to that date on your calendar send out gentle reminder in the form of a license expiration notice. If the license will expire after a certain number of copies are distributed, you can estimate the period of time it will take to distribute those copies and post your calendar accordingly. When you come across a license expiration cue on your calendar you send the licensor a reminder that the license is about to expire and that getting an additional license is as simple as a phone call or email to you. Setting up such a system in a database or spreadsheet to keep track of dates and press runs is easy too. Your word processing software can be used to generate both license agreement and expiration notice .
In the example I provided at the start of this article, the photographer had NOT registered the photograph he licensed with the U.S. Copyright Office. As a result, in a lawsuit he was only be eligible to collect actual damages, i.e., a fair market value licensing fee for the infringing use. If the photograph had been registered, the photographer would have been eligible for statutory damages and for legal fees and costs. When awarding statutory damages a judge is likely to award three to five times a fair market value licensing fee, and often more, when the infringer acted willfully, i.e., when they knew they were infringing. Willful infringement is punishable by up to $150,000 for each photograph infringed. Judges usually punish willful infringers with sizeable awards of damages and by making the infringer pay the infringed party’s legal fees and costs. The court’s rationale is that there is no deterrent to willful infringement unless the damages are much higher than they might have been for simple negligent infringement. So you ought to register your published images, and you can do that easily and with little cost. In fact you can register an entire year of published images for one thirty-dollar fee. There are good reasons to register more frequently, but that topic is beyond the scope of this article.
Here’s how a license expiration reminder notice can benefit you, if you are infringed. First, it is proof that the infringer did not simply forget about the expiration. You reminded them and, if they did not come back for new license, then they WILLFULLY ignored their responsibility to do so, and that would amount to willful infringement. Second, if your infringed photograph was registered with the Copyright Office, you have more power because the infringer knows, if they do not settle and you take them to court, they are liable to end up paying very high damages, their legal costs and fees, and most likely your legal costs and fees also. That is a real good reason to settle the case with you.
So the written license and written license expiration reminder can profit you by reminding and motivating licensors to renew or get new licenses. That sets an infringer into a very weak negotiating position in settlement talks, and since you get a much bigger reward, if you end up suing the infringer in court, it is motivation for the infringer to settle for more than it might otherwise be inclined. It only takes a few minutes to create a license and a reminder in your word processor so there is little excuse for not doing it.
(c) 2006 Richard Weisgrau [contact] [bio]
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