He started by pursuing book publishers that had bought the rights to use his photos in one edition. One publisher did give John figures for their print runs including new editions for all his books. John then asked the authors who wrote the texts for some of these books. These said "the figures are about right - but what about the other countries?" It turned out that there had been "editions of several thousands" in other countries, that were not included on the publishers' lists.
Now John has moved on to tracking down further abuses of his copyright, mostly by looking online. He gave the meeting a demonstration of how he has sought out copyright abuses online.
One "nice publisher in Switzerland," on being informed of their breach "said 'Oh my God! How much do we owe you?" but this is rare. John gave them a discount for their honesty when settling. And when he found that another infringer who'd used his portrait of an avant-garde composer on their CD was just "two men and a dog," he accepted just a free copy of the CD in compensation.
Some "95 per cent will be lying through their teeth," however, on such basic questions as how long they've had his photos on their site.
How much work does this all take? "An hour a week," says John, One case opened with an offer of £25 - a common opening gambit. Then came an offer of £600. It ended up in court: the judge looked at all the evidence, and told the infringer that what they had done "in this age of copyright awareness... was just stupid." After two months, John walked away with £1000 plus £300 court costs.
Cases of this kind are now heard at the new Intellectual Property and Enterprise Court, with hearings often taking place in the judge's chambers round a table. While John can "prove my rates, the courts accept this," these are his rates for "editorial photography." One judge said, "No, this is commercial", thereby doubling everything - to £2300 including costs. One copyright-infringing government department has paid John £11,000.
The worst that can happen, should you lose a case, is that you pay the other side's costs, and in the Small Claims track these are limited to £250. "It's down to the judge to work out how much they need to pay you," John notes.
Then there's US copyright. If you have registered your work with the US Register of Copyrights, and someone uses it, you can ask a court to award "statutory damages", up to $150,000, rather than having to prove the loss you have incurred as actual damages. David Hoffman, an NUJ freelance photographer in the audience, regards the US as "the biggest source of infringement recovery": he won $15k in one case there, after sending "a couple of emails."
Freelance Organiser John Toner recommended that NUJ members call the Freelance Office before launching proceedings, to ask for advice on whether they have a case. Assistant Freelance Organiser Pamela Morton said the NUJ has already run a seminar on the Small Claims track, and if there is demand the NUJ can run more. We're following up the issue at the July meeting.
Corrected 03/07/14: the maximum "statutory damages" that US courts can award are currently $150,000
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Last modified: 15 Jun 2014
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