As photographers, we all get annoyed when our images are being used without permission, and taking legal action is, for most of us, simply not a viable option. However, that might be changing as one law firm has discovered a means of making companies pay for even the smallest infringements. With that in mind, when does seeking compensation for copyright violations cross a line, and actually become a money-making exercise for a law firm whose motives are questionable? Meet Richard Liebowitz, the lawyer who has filed hundreds of lawsuits on behalf of photographers in the last two years, and is upsetting the legal industry in the process.
Copyright violations are regular features on the Fstoppers front page, whether it's Instagram freebooting, Tony and Chelsea Northrup suing an Australian company and finding the whole experience incredibly frustrating, or small photographers allegedly seeing their work stolen by huge companies without credit or compensation. While these instances make the headlines, the vast majority of infringements are so small and innocuous that doing anything more than sending a threatening email involves far too much time and expense — not to mention stress. The prospect of a legal battle is prohibitively expensive, and any settlement would often be for a sum that would never be worth the effort.
But what if it were possible that, with the right lawyer on board, even the smallest copyright infringement could be worth a settlement of tens of thousands of dollars? Suddenly, indifferent editors, lazy subeditors, and naive interns could be liable for very expensive lawsuits, potentially bringing a dramatic change to how images are published editorially online. The approach — pioneered by controversial lawyer Richard Liebowitz — is surprisingly simple.
Say an image that could have been licensed for $10 has instead been used by a company without the photographer's permission. This happens thousands of times every day, by small companies oblivious to copyright law, and large online platforms who perhaps are often happy to ignore the need for permission for the sake of expediency and dwindling budgets. On behalf of the photographer, Liebowitz's law firm would contact that company and immediately offer to settle for, say, $30,000. The offending company knows that the cost of going through the courts would quickly exceed that sum and agrees to settle, perhaps not for $30,000 but for a price that is vastly greater than the $10 that could have been spent on a license.
Many photographers would jump at the chance to have Liebowitz represent them, and few would sympathize with the defendants or the legal system that has to deal with what has been described as "frivolous litigation." As discussed in this in-depth piece — entitled Why Every Media Company Fears Richard Liebowitz — by Justin Peters writing for Slate.com, one judge called Liebowitz a "copyright troll" whose ethics are questionable.
Liebowitz argues that he's simply standing up for the rights of countless photographers who, until now, have found it impossible to fight against a legal system that is not suited to those who cannot afford to take on huge fees in order to fight for their own intellectual property. As his website states, his firm is "passionate about helping the artistic community." Others argue that Liebowitz is a ruthless opportunist who is exploiting a system, wasting the time of courts, and deploying questionable tactics that have little respect for accepted legal practices.
I'd urge anyone with an interest in copyright to read Peters' article (and for anyone unfamiliar with legalese, "rules of discovery" are the exchanges between prosecution and defense that allow both sides to be prepared ahead of trial).
Suing for copyright violations may have just become a viable option for those who previously felt shut out by a system that is typically reserved for the rich and powerful, and our industry may now have the opportunity to take revenge against unscrupulous companies that demonstrate scant regard for the artistic integrity of photographers.
(Side note: Unlike some other photography news websites, Fstoppers has rigorous editorial standards that require that all images are sourced legally.)
Lead image via Pexels.
(Side note: Unlike some other photography news websites, Fstoppers has rigorous editorial standards that require that all images are sourced legally.)
I'd like to see FStoppers never use free stock photography and instead, always financially support the community which supports them.
Nah, they try and really push the micro stock BS here.
Always disappointed to see stock photos illustrating an article written by a photographer on a website dedicated to photography. Lazy.
Photographers specialize. If a given article, such as this one, doesn't call for the type of photography the author specializes in it makes sense to source a stock image.
Agreed. But for God's sake, find stock photos which financially support photographers.
How can someone complain about this? If a photographer puts their images on a micro stock site, that's their business plan and you can't blame someone for spending $.50 for an image if that's an option. I have images on micro stock sites and I treat those monthly payments as free money to buy stock images of my own. I also license images for much much more money but they are never also uploaded to micro stock sites. I personally do not see anything wrong with using free or near free images if a photographer has valued his work that low. Some will argue that stock sites have killed the photography market but I would argue that there has never been a greater need for high quality, unique photographs ever. The main problem, in my opinion, is many photographers are failing at creating interesting work that gets picked up by big companies willing to pay $400 - $4000 per license. I know a lot of photographers will hate me saying this but if you are shooting perfectly retouched images of sexy girls or beautiful landscapes, chances are no one is going to buy those photos from you. You gotta create something much more unique and interesting than that.
It's just kind of ironic, I suppose, that your website is dedicated to photography but you're unwilling to financially support the work of photographers. The image used here wasn't $.50. It was free according to the CC0 license on the page that was linked at the end of the article.
Obviously, I get the "they're only hurting themselves" argument. But there are two sides to this currency-less transaction: the photographer, and FStoppers. You had the choice to find another image to use and financially support the very demographic you're trying to target.
Don't worry... I feel the same way about all photography-related companies doing this. For instance, when Canon decided to use that now-famous free-stock image (from Unsplash, I think - which I've seen FStoppers use, as well) that was a composite from a Canon and a Fuji camera. The fact that they could simply decide to pay photographers, especially those that use their gear, for their photography, but choose not to, is utter insanity in my mind.
DPReview recently got their a***s chewed out in the comments section for using an Unsplash image as well.
I just feel like if you're targeting an audience of photographers to come to your site and consume your content and make you money (ads, tutorials, products, etc.), then you should probably feel some obligation to give back a little. That's it. I'm not saying to be financially irresponsible but... free!? C'mon...
To restate and clarify - I think photographers uploading their images to be used for free without a REALLY strong justification for it are morons.
I mean, if a photographer wants to give their work away from free then I can't argue with that. As for the Canon image....we shoot that photo with Elia so of course we are going to use it.
My criticism of the "Canon" photo was that Canon chose not to support those who support them and snagged a picture they thought was taken with a Canon camera for free. Not that y'all featured it.
As for taking advantage of a situation where someone has given away their work for free verses seeking out someone who values their work and paying them, I guess I take the position of "if you're not part of the solution you're part of the problem".
From the web site tentmaker (https://tinyurl.com/yasgrzvy):
"...The Unites States has 278 lawyers per 100.000 people, three times as many lawyers per capita than Britain, a nation swarming with lawyers. The United States also has more of its citizens incarcerated than even heavy-handed dictatorships.
Laws create law-breakers. More laws create more law-breakers.
Most of us don't have too many nice things to say about lawyers. We believe they are a necessary evil. Well, it may be true they are evil, but necessary? Look at Japan with 7 lawyers per 100,000
How many politicians are also lawyers? Neither occupation enjoys a good reputation.
Fewer laws, fewer lawyers and fewer politicians. That would be good for the US of A..."
I will take your stats as you present them.
I believe it is a misrepresentation to say that Lawyers are the problem. They exist as they're needed because they're a product of the legal environment. A lawyer doesn't make the laws they just represent interests on either side of a case. The number of lawyers doesn't indicate much other than there being a need that is filled. A country lacking lawyers might lead to a population forced to represent themselves more often and if that was in the United States, it would lead to more people losing lawsuits or being found guilty when they shouldn't be.
I agree with you that lawyers do make the law...however, they bend it as much as they can to fill up their bank account. A lawyer friend once told me that lawyers do not solve problems, they create more.
As for the legal system, you are right, it has everything to do with the legal environment and thus the root of the problem.
I am all for making sure companies do not abuse their powers and step all over us as they see fit but the abuse of the law by individuals and companies (ENCOURAGED BY GREEDY LAWYERS) is horrendous.
There are enough people abusing the spirit of the law that even if someone is a 'ruthless opportunist' or it's 'a money-making exercise for a law firm' but they happen to work for the honest person I don't see a problem with that. May there be more situations in which fighting for the victim is beneficial to all. (Note, I'm not making a statement about a legal system in any particular country)
Fight vampires with vampires.
Where's Spy White when you need him? ;-)
BTW, the US Copyright Office is about to make it a lot more difficult for small business photographers to protect themselves by registering our copyright.
The US Copyright Office is proposing to double the fee for applying for copyright from $55 to $100. It's been less than a year since they raised the fee from $35 to $55 and limited the number of images that can be copyrighted under on application. A fee of $100 becomes a hindrance to application for small businesses.
(I'd remark that US government enforcement of copyright is a Constitutional mandate--it's in Article 1, Section 8.)
We have until July 23 to give them our opinion of that proposal.
https://www.copyright.gov/rulemaking/feestudy2018/
I am a little puzzled as to the attacks on Liebowitz.
Just what is the argument against making a claim?
It seems the crooks are complaining about the cost of their transgressions.
I work for an apparel company. Our clothing and accessories are used in photos. Where is our cut? We aren’t asked permission. We regularly have stuff bought and then returned expressly for photo shoots and commercials, though the buyers rarely admit it.
This is a dangerous road. Much like musicians are being sued by other musicians for similar sounding music, one day we might see photographers sued for similar split toning, or lighting.
I hope not.
If your clothing and clearly visible logos are being used for photos that are in turn being used for commercial gain, you can absolutely demand royalties. That’s why in many of my video/photo shoots it’s not uncommon for producers to request models wear unbranded clothing or that I clone out a Nike/ Coca Cola logo from an image.
Matthew Range--No, it's not a dangerous road. If the photos show your trademark, you can sue. This is all about very specific infringements--copyright, trademark, or patent--with very specific requirements by regulation.
I'm all for it, and in fact I contacted him after reading this. A hair care company by the name of oVertone color not only stole a photo I took of a model, but used it to sell their hair care products. They've taken it down after I contacted them about licensing, and misuse. I'm still going to go after them as they DID make money from my work!
Thanks Crystal. I've reached out to Mr Liebowitz to ask if he would be interested in giving Fstoppers an interview, but no response as yet. I'd be interested to hear about your experience. If you're keen to share, please get in touch. :)
I will let you know what happens!
We settled before it got any further, and on my own. Aside from that, the situation with the lawyer was good. I still have them on retainer for the next 3 years.
Thanks Crystal. I'm glad this got resolved!
I'm not sure what to comment about this article. This article title is a little misleading. I'm not disputing the reputation and talent of the lawyer to potentially more than what an image would normally be worth commercially, but people need to know that the Professional Photographer of America association have been campaigning on Capitol Hill for copyright law reform. I am colleagues that are on the board of directors for PPA and have heard alot about it. Copyright infringement claims will be able to be taken to small claims court to be fought without the exorbitant fees that there would need to be paid. Case in point, I have a colleague who had an image used in everything to reprints, needlepoint, statues, you name it, and it would have cost him over a million dollars to fight each and everyone of the infringer. And his image was copyrighted.
FStoppers please write an article on bill H.R 3935. This is very important for artists of all kinds.
https://www.congress.gov/bill/115th-congress/house-bill/3945/text
Naive photographers think this law is a godsend, but that's because they have no experience enforcing copyrights. The problem with the law is that every defendant is guaranteed a trial by jury, and the small claims court does not use a jury and thus cannot be forced on the defendant. Many naysayers of the law point out that once the defendant realizes the copyright holder is insisting on the small claims court because he can't afford to file a federal copyright lawsuit, the defendant will insist on a jury trial in federal court. This is certainly a reason, but not the main one.
The main reason why the small claims court won't be that effective when it comes to Internet-based photograph copyright infringement claims is that infringers who ignore a copyright owner's and/or his attorney's demand letter to settle out of court do not call to say they won't pay, they simply throw the letters in the trash and the copyright holder has no communications with them. The infringers have no defense and they do not want their day in court. Most won't even respond to a federal lawsuit, and the copyright holder ends up with a default judgement. Therefore, if a copyright holder requests that an infringer agree to a trial in the small claims court, most likely he won't get a response to that request either.
Of roughly 300 infringers I have personally pursued, only one wrote me a detailed defense using the Fair Use statue (he had a point or two, but ultimately I think he would lose such a case). The rest either paid me or ignored me. If you are going after somebody who posted your photo on their personal Facebook page (i. e. non-commercial uses), then you may run into many infringers who want their day in a small claims court. However, if you only go after blatant commercial uses, only the "know-it-all" types will agree to defend themselves in a small court.
So yes, the small claims court may come in handy sometimes, but not as much as they typical photographer thinks. The new law may be more beneficial to authors and musicians, or in cases where there is a gray area with the infringement (e. g. you song sounds just like mine). But in the cases of "my photo is being used on your website," which account for the majority of photograph infringements these days, there is rarely a gray area.
Regards, The Photo Repo Man
photorepoman.com
Attorneys are certainly an indispensable part of getting paid for copyright infringements, but I prefer to have them deal with infringers who fail to pay me after I personally attempt to settle the copyright dispute, not as a first plan of attack. There is certainly no denying that a copyright holder can reap much higher settlement fees by siccing an Intellectual Property attorney on the culprit right off the bat. However, an attorney will send a demand letter to Sally’s Hair Salon in Timbuktu asking between $5,000 and $20,000, and while he will never get that much, if Sally doesn’t have a heart attack the second she reads the letter, she certainly isn’t going to sleep well at night. Because many business owners, nonprofit companies, and bloggers do not know the law and mean no harm, I prefer to first deal with them directly, giving them a chance to pay a reasonable fee—this way I can sleep at night. If an infringer throws my letter in the trash, then I have no problem turning the case over to an attorney and letting him deal with the repercussions.
I've been enforcing my photograph copyrights for the last three years. In the last year and a half, I've been successful about 75% of the time. I do have an attorney like Liebowitz, and I also have a non-IP attorney friend who helps out. Believe it or not, my friend, who does nothing more than send a demand letter and has no intention of following up or filing a lawsuit, actually has collected on a higher percentage so far: 38% to 23.50%. I've come to the conclusion that there are infringers who will be intimidated by my personal demand letter, infringers who will be intimidated by a demand letter from any type of attorney, and infringers who aren't paying even if the letter came directly from God. In fact, once a lawsuit is filed, at least half the infringers won't even respond to that and you'll get a default judgment that you probably won't ever see any money. Most of the lawsuits are filed against small to medium businesses, as large businesses almost always pay up.
As this article points out, while you might one day find your photos being used on the next Star Wars poster, most Internet-based infringements are done by unknown bloggers, mom-and-pop businesses, and small nonprofit agencies. If you know what you are doing, as I do, you can collect on a very high percentage of these as long as you keep fees reasonable based on the infringer's ability to pay. I typically ask $495 as long as my copyright notice was not intentionally removed, and most pay without even contacting me. If I get a call and a sob story, I may negotiate. For larger companies, I ask more, depending on the circumstances, and I don't really care if they pay or not since my attorney will be eager for the case. But as I said, most pay up to avoid further legal and financial hassles.
Everything I know is in my book Photo Repo, including a demand letter and follow up letter template that gets results. Check out the website at photorepoman.com.