Even the best demand letter will not convince all infringers to pay. I started out collecting on only 44% of my cases, which isn’t bad considering all were pre-registration violations that no attorney would touch. After refining my process, I collect on roughly 70% of my cases. But even with such a high success rate, that still leaves plenty of unsettled cases. Your best course of action is to turn such cases over to an Intellectual Property (IP) attorney, but there is a catch. Since most Internet-based photograph copyright infringement cases are not that lucrative, finding an attorney who handles such cases is not easy. When you toss in the caveat that the attorney must work on contingency—you don’t pay unless he collects—the list gets even smaller. This chapter of Photo Repo provides suggestions for finding an attorney and what to expect when you find one. Topics include:
- How to Find an IP Attorney Who Works on Contingency
- What Attorneys Require to Take Your Case
- Typical Settlement Splits
- Attorney Location
- Typical Settlement Amounts
CHAPTER EXCERPT | ON REQUIREMENTS FOR AN ATTORNEY TO TAKE YOUR COPYRIGHT INFRINGEMENT CASE…
There are four things an IP attorney who works on contingency requires in order to take your copyright infringement cases:
- Your photos must be registered with the U. S. Copyright Office, and you must have received a copy of the Certificate of Registration.
- Violations must be post-registration violations unless you can justify substantial actual damages.
- Violations must be commercial in nature.
- Either you must have collected the proper evidence or the photo must still be on the infringer’s website.
CHAPTER EXCERPT | ON THE TYPICAL SETTLEMENT FEE SPLIT…
Attorneys who work on contingency usually split the settlement fee 60-40, with the client getting 60%. However, all expenses come out of the client’s percentage. If a case is settled with nothing more than a demand letter, the only expense should be a courier service. In the two cases my IP attorney settled with only a letter, expenses were $9 and $20. If a lawsuit is filed in federal court, the filing and service fees will be around $500. You are not responsible for the attorney’s billable hours or time spent on the case by office staff.
CHAPTER EXCERPT | ON EXPECTED RESULTS…
Because the cases you turn over to an attorney involve infringers who already refused to pay, don’t expect miracles. To date, the attorney collection rate on my cases is just 20%. I’ve come to realize that there are infringers who pay because they are intimidated by my demand letter, infringers who pay because they are intimidated by a letter from an attorney, and infringers who aren’t paying even if the demand letter came directly from God.
As for a typical out-of-court settlement fee, an attorney friend of mine (he is not an IP attorney) averaged $1,750. In two recent cases involving my IP attorney, I got a $2,000 settlement for a case I originally asked $95, $2,500 for a case I originally asked $125, and $8,000 for a case I asked $2,000 (this was against a major corporation). Based on this limited data, if an attorney collects without filing a lawsuit, it’s usually somewhere between $2,000 and $4,000, with most settlements being closer to the lower figure.
Filing a lawsuit doesn’t increase the chances of success either. A patent attorney friend of mine told me that the infringers involved in these types of cases rarely respond to lawsuits. As a result, you end up with a default judgment: a piece of paper stating that someone owes you money. It’s up to you to collect, just like it’s up to Fred Goldman to collect from O. J. Simpson; he’s gotten only a fraction of his multi-million dollar judgment against Simpson. My IP attorney has filed two lawsuits in my name. What happened? One infringer never responded and I got a default judgment, and the other case was recently filed, but the infringer did respond. Hopefully this will lead to a settlement.
The way I look at, regardless of how long it takes my attorney to get around to my case; regardless of the split; regardless of the expenses; and regardless of the success rate; these cases all involve infringers who did not pay me. If my attorney gets me a buck, that’s a buck more than I got on my own. I like to think of him as Santa Claus. One day I might wake up with a settlement check under the tree. Ultimately, my best chance for money is to keep pursuing infringements on my own.