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.
Ethics aside, another reason to deal directly with copyright infringers is the time you will save putting settlement fees into your bank account. Let me preface this by saying that there are infringers who are going to pay, and there are infringers who are not going to pay. Some of them won’t pay when an attorney goes after them. Some of them won’t even pay when a lawsuit is filed against them. But of those who do pay, if you first deal with them yourself, you’ll have the money in your bank account within two to four weeks. The first time I tried to collect, I got payments from 45% of the infringers, and I didn’t even know what I was doing. Now that I have perfected my technique—and everything I know is in my book, PHOTO REPO—I have collected on 73% of my cases over the last year and a half. That’s a lot of settlement checks deposited into my bank account.
Let’s now compare the 2-4 week DIY payment window to the time it takes an attorney to settle a case, or even one of the many Copyright Enforcement Services (CES) such as Image Rights and Pixsy. Let me start out by saying two things. First, the cases I give to my attorney are the ones where the infringer ignored my demand letter. The way I look at it, these are infringers who didn’t pay me, so if my attorney gets me a buck sometime in the future, that’s a buck more than I got on my own. Therefore, I’m in no big hurry to get paid, and I don’t even expect to. I like to think of my attorney as Santa Claus: one day I might wake up with a settlement check under the tree.
Second, the extended time it takes for an attorney or a CES to collect in no way reflects on how much they value your case. These guys are simply swamped. They have hundreds, if not thousands of photographer clients just like you, while their staff consists of a couple dozen employees. As my attorney says, “We have three years to file a lawsuit, so be patient.”
But what about the photographer who turns all of his infringement cases over to an attorney from the start. If he is relying on settlement money to pay bills, he may be waiting a long time. But what sort of timeframe is he looking at? Well, here is the payment timeline of three recent attorney-handled infringement cases of mine—hard facts, not speculation.
CASE ONE: FORTUNE 500-TYPE COMPANY
The first case I want to discuss involves a major hotel company. I sent my personal demand letter on January 11, 2018. A few weeks later I received a call from the company’s in-house attorney who admitted he did not know much about copyright law, and therefore he could not authorize payment without proof of actual damages. I didn’t argue with him, but did suggest he look further into the law before making a decision. He said he might, but I never heard back and never received a payment. By the way, this is the only attorney I ever dealt with who refused to pay. Usually, if an infringer threatens to “get his attorney involved,” this is exactly what you want because attorneys understand the costs involved in litigation and will recognize that your settlement demand is as good as it will get for the infringer.
Anyway, I turned the case over to my attorney on February 14, 2018. I was a new client, so he got on it right away, though I don’t recall the exact date he sent his own demand letter. (Regardless of you having sent a demand letter, when you give a case to an attorney, the entire demand letter process starts again, and the infringer usually has 30 days to respond.) All I know for sure is that the company’s attorney called my attorney to negotiate on March 11th and a settlement was finally reached on April 23rd. It is not uncommon for an attorney to take a week or more to reply to an infringer’s counteroffer, and if the infringer has an attorney, his attorney may take weeks to counter that offer—and back and forth it goes. If the company attorney could have called me to negotiate, we would have had an agreement by the end of the phone call.
Per the agreement, the hotel had ten days to pay, which doesn’t mean I get my money in ten days, but that my attorney will have the money within this timeframe. On May 13th, I got my notice detailing the payment amount. I get 60% minus expenses, which were $30 for delivery services. The money was in my bank account on May 21, 2019, roughly three months from the time I turned the case over to my attorney. Three months is a typical best-case scenario.
After the attorney’s cut (he works on contingency), I ended up with 2.4 times my original demand amount. If the hotel had paid me directly, I would have gotten my money, albeit much less, in early February.
CASE TWO: FRANCHISEE OF A FORTUNE 500-TYPE COMPANY
Knowing that I was leaving money on the table when it came to dealing with large companies, and not really having any compassion for them since they all have intellectual property of their own and should know basic copyright law, I vowed to send all major-company infringement cases directly to my attorney. I turned this case over to him on July 15, 2019.
At the time, I was pretty much broke and needed money to pay my mortgage, so on August 2nd I emailed my attorney to see if anything had been done on this case—nothing. I therefore told him to forget about it, and I sent my own letter on August 12th.
I got a call from the infringer on August 15th, and he was ready to negotiate. I had asked for $2,000, and within ten minutes we settled on $1,500. I had money in my bank account on August 25th. That’s less time than my case sat idle at my attorney’s office.
CASE THREE: NONPROFIT COMPANY
First off, nonprofit companies do not get free Internet service. They can’t go to the office supply store and get free furniture. These are business expenses, just as photographs needed for promotional purposes are business expenses. And because nonprofits are not exempt from copyright law, if they are using your photos without permission to promote their company, you should not only get paid, you shouldn’t feel guilty for wanting to get paid.
With that said, I sent my personal demand letter to a small nonprofit asking for only $125 on January 10, 2019. The organization turned the letter over to the design company that made its website. The designer emailed me with a story about how she did the site for a small fee and that she would be happy to accept my photo as a donation and give me a credit. Since she was actually part of a website design firm and not somebody making websites as a side job, I replied that I found it hard to believe that she didn’t know basic copyright law and that she couldn’t just pluck photos from the Internet for use on her for-profit projects. Her firm could pay the $125 or stick its client with the bill. I got no response.
When my 30-day offer to settle had expired, I sent my follow-up letter to the nonprofit. The follow-up letter never fails to convince at least 25% of those who blew off my initial demand letter to pay my settlement fee. (The follow-up letter template, as well as my demand letter template, is included in my book, PHOTO REPO.) However, in this case it got no response from the nonprofit, so I turned the case over to my attorney on March 3rd, and he sent a demand letter on March 22nd.
The nonprofit hired an IP attorney—all over $125—and this attorney contacted my attorney by email on April 18th asking for additional information, most of which was designed to waste time. Anyway, this email ended up with an associate attorney who got fired, and it wasn’t until July 8th that somebody realized that no reply to the email was ever sent. My attorney contacted me about it, and I immediately provided him with the required information, and that’s the last I heard about it. I assumed it was a dead deal.
On November 14th I got an email from my attorney that the case was settled, and I signed the settlement agreement that same day. The nonprofit had ten days to pay. As of today, December 4th, I have not received payment, so hopefully this will happen soon. Anyway, it took roughly nine months to get paid on this infringement. Even if the accidental lapse in response to the infringing attorney’s letter is ignored, it still took six months to settle the case and for me to get paid (assuming I get paid shortly after writing this article).
COPYRIGHT ENFORCEMENT SERVICES
In regards to Copyright Enforcement Services, I can’t report much on the timeframe it takes for them to collect since the service I’ve dealt with has only collected on one case out of seventeen. I have nine cases currently on file with a CES, with the oldest dating back to November 2018, and the earliest from August 2019. It took three months for me to get my money in the one case the CES did settle.
I don’t want to make CES collection rates seem low. Remember, I am giving them cases I could not collect on. If I gave them my cases directly, I would expect them to have the same collection rate as I do, maybe a little less since infringers are more likely to pay the actual humble photographer than a collection company.
Keep in mind that CESs are not attorneys. They are bill collectors, and they are staffed by people just like you and I. In fact, there is nothing a CES can do that you can’t do on your own after reading my book, PHOTO REPO. Unless you just want to give away half of your settlement fees, or don’t have the time or the desire to deal copyright infringers, handling copyright enforcement on your own with an attorney as a backup is your best course of action.