Photo Attorney - Serving the Photographer's Legal Needs

I researched for weeks, test drove many models, and ordered my new car in September. It finally arrived mid-December. Today, while stopped at a red light during a snow storm, a driver lost control of his car and side-swiped me (damage shown above). My neck and back are stiff and sore. I’ve already spent time with the police and the insurance company, I’ll be without my car while it is repaired, the car’s value will drop, and my physical injuries may persist. The other driver was 100% at fault. What will I get out of all of this? Only the amount that purportedly puts me back in the condition that I was during the seconds before the crash. Specifically, the insurance company will repair my car and pay for my medical treatments. I could sue for pain and suffering. But I’ll never recover for my lost time or the hassle of all of this. Even if the driver had been drunk, I wouldn’t recover any more in damages. Is it fair? Maybe not, but it’s the law.

Such is the case for copyright infringement. If someone infringes your copyright and you haven’t timely registered your photo with the US Copyright Office, then you are eligible only for “actual damages.” Courts usually calculate actual damages based on your normal license fees and/or industry standard licensing fees. In sum, you’re entitled to the amount that the infringer should have paid to you if the infringer had requested a license from you in advance of the infringement.

You also may recover the profits the infringer made from the infringement if they aren’t too speculative because the law is designed to prevent others from profiting from their bad acts (for example, “slayer statutes” prevent a murderer from inheriting from the person murdered). Unfortunately, actual damages usually aren’t worth a lot because licensing fees are relatively low.

Whether you are eligible for statutory damages for an infringement depends on when you registered your image. Specifically:

For Published Images –

Step 1 – if your image is infringed anytime between the time you publish it and the time you register it (as long as you register it within 3 months of first publication), then you are eligible for statutory damages

Step 2 – if you don’t register your published image within three months of first publication, then you get statutory damages only if you register your image before the infringement begins.

For Unpublished Images –

You get statutory damages only if you register your image before the infringement.

See 17 USC 412. The purpose of § 412 and providing statutory damages “was to encourage early registration.” See Andrew Berger’s article, Statutory Damages in Copyright Litigation, 81 N. Y. State Bar Journal at p. 31.

While photographers are frustrated that they are eligible for statutory damages only if they timely register their copyrights, they should be grateful that they are available at all. I certainly wish that I could have done something to get back more than a repaired car that will never be the same as new.

“It has been a generally accepted theory, but a false one, that infringement of copyright only takes place when copies are made for public sale or performance, and not when they are intended merely for personal use.” Musical News, vol. 8, pg. 314 (April 6, 1895).  HT: Terry Hart over at Copyhype.com.

Part of knowing your legal rights and responsibilities as a photographer is reporting your taxes properly.  While you must comply with the law, you also don’t want to overpay.  Do what you can to learn on your own what to do.  Some good resources are available through:

• The IRS Small Business and Self-Employed Tax Center
• Tax Seminars, such as that conducted by the California Lawyers for the Arts
• Books, such as Small Business Taxes Made Easy
• Tax Time for Photographers article, by Heather Forcier
• My previous blog post: Tax Deductions for Your Photography

But nothing can replace a good CPA who understands the nuances of your photography business. You can find someone to join your team by asking your colleagues, the American Institute of Certified Public Accountants, and/or  some Volunteer Lawyers for the Arts groups, such as those in Kansas City and St. Louis that also provide accounting services, for recommendations.

In addition, here are some accountants who specifically help photographers, such as:

Rocco Abbondandolo C.P.A. - serving photographers in the NY tri-state area (mainly NYC and Long Island)

Woloshen & Herman C.P.A. – NY

Harold J. Nelson Accountancy Corporation – CA

Howard Choder – WA

Mark Gaynor, CPA – GA (Mark’s email)

Vitale & Miller, P.A.  - FL (Greg Miller’s email)

Michael Arena –  CA  (Michael’s email)

Note: These referrals are not endorsements. Be sure to check the qualifications of any professionals before hiring them.

With the knowledge you obtain and help you get, you then can concentrate on other things, such as what camera you’re going to purchase with your tax savings!

Happy New Year!  Start the year right!

Register your copyrights:  How to Register Your Copyrights Using the eCO System

Learn about your rights:  Read the “Photographer’s Legal Guide” and this blog

Unsolicited review: “I will definitely tell every photographer I know about your website and blog and recommend that they consider buying these forms from you, and also both of your books.  All of these things are really great and you are providing a huge service to photographers everywhere by making these available, and at such incredibly great prices!”  Stan Brewer of Stan Brewer Photography

Get your contracts and forms in order: Customizable forms created by the Photo Attorney® specifically for photographers

Unsolicited review:  ”Thanks so much for making these available! I especially appreciate that they’re short and to the point — I hate forms that are excessively long and I find that people are very leery about signing them, too.  Yours are clear and yet cover what needs to be covered. And the price is negligible — I would have expected to pay much more.” Scott Hargis of Scott Hargis Photography

Defend your copyrights: Using the Copyright Infringement Cease & Desist/Demand Letter form

Unsolicited review:  ”Just a note to tell you that I’ve used your forms for copyright enforcement. The “Demand” letter has been very useful and has helped collect revenue.”  Leif Skoogfors

PhotoAttorney® also is honored to make PhotoShelter‘s “The Best Photography Blog Posts of 2011,” along with many other great blog entries. Check them all while we take a break from blogging until the new year.  See you then!

PhotoAttorney® is honored to make the “fabulous” list along with 49 other great Twitter feeds. Watch for in depth reporting on the law for photographers on this blog and for quick updates at @PhotoAttorney.

I had the recent pleasure of joining TWiL (This Week in Law) again. Hosts Denise Howell and Evan Brown and guest Marty Schwimmer and I discussed privacy issues, including taking and posting photos of kids, my recent DMCA take-down experience, SOPA, and more in Episode #141. Check my other appearances on TWiL in Episode #56 and Episode #124.

Had a great Help-Portrait™ day. Thanks to the entire SLT team!

This Saturday is the annual Help Portrait day.  Founded by Celebrity Photographer Jeremy Cowart, Help-Portrait is a community of photographers coming together across the world to use their photography skills to give back to their local community. I look forward to another great time shooting with the South Lake Tahoe group!

Another wonderful giving organization is the Jonathan D. Krist Foundation. Jonathan was a talented musician, conscientious about his politics and helping the underserved. He died in a car accident in May 2006 at the age of 19. As a student leader, he worked on two causes: bringing band instruments to underserved schools and building wells in Africa. In this spirit, his family – mother Peggy, father (and well- known photographer) Bob, and his two older brothers, Matthew and Brian, created the foundation to continue his work. Check the above video for one of the Foundation’s programs.

After being served with the Complaint, the defendant is supposed to answer or otherwise respond to the complaint within a certain time, as discussed in my earlier blog entry.  But sometimes the defendant doesn’t timely respond, either because of a mistake or trying to avoid the matter.  So the case goes in a different direction than expected.

The first step is to file a motion to ask the court to enter the defendant’s default pursuant to Fed. R. Civ. P. 55(a). Your motion must include an affidavit stating something such as:

1.     I am the attorney for the Plaintiff in this action.

2.     A Complaint was filed in this matter on April x, 20xx, and service of process was had on Defendant xxxxxx xxxxxx on April x, 20xx.

3.     More than twenty (20) days have elapsed since Defendant xxxxxxx was served in this action, and Defendant xxxxxx has failed to plead or otherwise defend as provided by the Federal Rules of Civil Procedure.

The court clerk then must enter the party’s default. The defaulting party is deemed to have admitted all of the well plead allegations of the complaint.

You next must get the court to award you damages.  If your claim is for a sum certain or a sum that can be made certain by computation (such as when you are suing for breach of contract and the defendant failed to pay you your specified license fee), you may request that the clerk enter judgment for that amount, plus costs for filing the suit and any other court costs that you have incurred.

But for copyright infringement damages, the amount due to you usually is not certain.  So you have to apply to the court for a default judgment. The court usually will conduct hearings or make referrals when, to enter or effectuate judgment, it needs to:

(A) conduct an accounting;

(B) determine the amount of damages;

(C) establish the truth of any allegation by evidence; or

(D) investigate any other matter.

In the end, the court should grant you an award for damages.

That’s what happened in one copyright infringement case by a photographer.  The photographer filed suit but the defendant did not appear.  After the photographer filed the appropriate motion, the court entered default.

The attorneys for the photographer then filed a Motion for Default Judgment, which included a Memorandum in Support of Motion for Default Judgment, a Declaration in Support of Plaintiff’s Motion for Default Judgment, and an Exhibit.  Because the photographer could no longer afford to pay his attorneys, he subsequently represented himself at the court’s hearing on the damages. The photographer made an opening statement and gave his testimony. He submitted three exhibits and gave a closing argument. The court thereafter ordered that the defendants were permanently enjoined from any further use of plaintiff’s four images on defendants’ website and awarded the photographer $9,800, plus his reasonable attorney’s fees and costs incurred in the lawsuit.

But note that during this process the defendant can ask the court to set aside an entry of default for good cause and to set aside a default judgment under Rule 60(b).  If that happens, then the case goes forward as if the defendant timely answered.