Diary of a Copyright Infringement Lawsuit – 1a (Costs)

One of the first questions photographers ask when deciding whether to file a copyright lawsuit is “what will it cost?”  While each case and circumstances differ, there are some general guidelines. As previously identified in my May 17, 2011 blog entry, the initial filing fee paid to the court for federal lawsuits is $400.  As discussed in this blog entry,  the cost to serve the summons and complaint is about $100 but you can avoid that cost by asking the defendant to waive service. Your attorney will have to make several court appearances for things such as scheduling conferences, hearings on motions, pretrial conferences, and the trial. If your attorney is not in the same city as the courthouse, then your attorney usually will charge you for travel costs. And while federal courts now require that all court filings be made online with electronic documents, many judges require that you also deliver a physical “Courtesy Copy” to the judge’s chambers (office).  So your attorney may charge you for the delivery and/or the photocopies. Additionally, most federal courts require that you mediate your case early in the process to encourage settlement. While the court may provide a mediator for you at no or low cost, those mediators often do not understand copyright law and may not be the best facilitator. Instead, the court will allow you to pay for a “private” mediator, so that you may select someone who has experience with copyright infringement matters. While you split the costs of mediation with the defendant, private mediators usually cost $500 or so per hour.  Since a mediation can last all day, the total cost to you may be as much as $2,000. The most expensive part of a lawsuit can be the cost of depositions.  Depositions are when the lawyers ask a witness questions under oath for later use in court.  A court reporter transcribes the testimony to writing and usually charges by the word/page, and perhaps also for an appearance fee and exhibit copies.  The standard charges for most depositions range from a few hundred dollars (for a short deposition or the defendant takes the deposition so that you need only a copy of the transcript) to $1,500 – $2,000 per deposition (if you take the deposition and/or it lasts several hours). Depositions also may be video recorded, which is an additional cost of about $500. Usually, the defendant takes your deposition, you take the defendant’s deposition, and either side may take one or two witness depositions. Ask your lawyer how many depositions are expected for your case. Another potential significant cost is to pay for an expert witness to testify on your behalf (the purposes for which will be addressed in a future blog entry). You and your attorney will decide whether an expert is needed. Expert witnesses charge usually in the range of $250-350/hr. plus expenses, such as travel, with minimum charges to make an appearance at the expert’s deposition or at the trial. Of course, you have to pay your lawyer either by the hour or on contingency (unless your attorney is working pro bono).  We’ll assume that your attorney is worth every penny you pay. You may have additional costs, depending on the facts of your case. Talk with your attorney about what those may be. Another important question is who will pay these costs. Discuss with your attorney about how, when, and what you will pay. If you win your case, you can ask the court to make the infringer pay your “court costs,” such as the filing fee, and your attorney’s fees.  But even when you expect to win big, first determine how much it may cost you.

Check Photo Attorney on Lynda.com, in the Lynda.com Article Center, and on Twitter!