ABOUT PHOTO REPO

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The ethical approach to getting paid for copyright infringements

It is estimated that three billion photographs are uploaded to the Internet each day, and that 2.5 billion of them will eventually be used without permission from their creator. Certainly many of these unauthorized uses are for non-commercial purposes such as posts on social media accounts, or for use in an article on a personal blog page. All of these are violations of copyright law, by the way, but you’d have to be a Scrooge to demand money for their use. But there are billions of dollars in commercial licensing fees lost every year to business owners who would never download a movie for free, yet wouldn’t think twice about using a photograph found through a Google search as the header on their new business website. And that’s on top of money lost to business owners who do know about copyright law and simply don’t give a damn.

While photographers are aware of the problem, most have no idea what to do about it. Those with minimal knowledge of copyright law are often blinded by terms like “DMCA safe harbor” and think all they can do is ask an infringer to remove the photo, or at least such a request is first required in order to pursue further legal action. Well, you wouldn’t simply ask a car thief to give back your car after he put 20,000 miles on it, and you shouldn’t simply ask a company that has been promoting its products and services with the help of your photograph to remove it. You ask to get paid. But do you sic an Intellectual Property (IP) attorney on the culprit right off the bat, someone who will demand a fee so steep that an unwitting business owner is going to have trouble sleeping at night? Or is there a more ethical way to go about this?

With every copyright infringement comes an individual infringer, each operating under a unique set of circumstances. While it is possible that one of your photographs may end up on the next Star Wars poster, this is an exception, not the norm. You are much more likely to find your photos being used by local businesses, small-time bloggers, and nonprofit organizations. Most have no idea they are breaking the law, and some aren’t even aware of the situation because it was their website designer who used your photo (the website owner is still liable). Others know what they are doing and couldn’t care less. While all should be punished to some extent according to the law, it is the copyright owner who should be first in line to dole out the financial punishment, and he should do so only after considering the circumstances of each case.

Photo Repo is designed to teach photographers how to ask for a reasonable fee for unauthorized use of their photographs before handing the matter over to an attorney who is really going to turn up the heat. In fact, if you want the most money possible—four to ten times the amount as the DIY approach—you don’t need this book. Find an IP attorney who will take your cases and let him do the dirty work. I personally cannot live knowing that Sally’s Hair Salon in Timbuktu is being squeezed for a settlement that will cause her financial distress, particularly when I know she meant no harm. But I do want to get paid something because Sally is promoting her business with a photo that cost me time and money to create. If she chooses to ignore my settlement offer, then I can turn the case over to an attorney with a clear conscience.

Photo Repo will teach you the basics of copyright law, how to track down infringers who don’t want to be found, how to separate pursuable cases from time wasters, and how to prepare and mail a demand letter that gets results. (A demand letter is a letter demanding payment to settle a legal issue out of court.) And if the infringer refuses to pay, you’ll learn how to find an IP attorney who is interested in these types of cases. This information is based on my experience of pursuing copyright violations for three years, over which time I have collected on 61% of viable infringements, ranging from 44% the first time out ($5,000) to 80% in my most recent effort ($15,000). Of course, your mileage may vary.