KEY WORDS : | Statutory Damage | Copyrighted Photographs | Attorneys’ Fees | Write-Offs | Copyrighted Material | Willful Conduct | Licensing Fee | National Geographic | White Mailers | Travelers Abroad | Stock Photos | PhotoSourceGROUP | Tax Advisor | Evade Taxes | Computer Virus | Bad Customer Service | Phishing Detector |

NEWSWORDS: | Black & White | Branding | Stark Photography | Traditional Prepress | Free Speech | Award | Digital Transition | Photographer Bob Carlos Clarke | 20th Century Masterpieces | Stalking Camouflaged Cars | Cuban Countryside |

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The Court Can Go Beyond
Normal Fees…
License Fees as Element of
Statutory Damages

The owner of a copyrighted photograph is, under certain conditions, eligible for statutory damages and attorneys’ fees in an action for copyright infringement. The plaintiff in such an action may elect statutory damages or actual damages at any time prior to entry of a judgment.
In a recent case, Van Der Zee v. Greenidge, brought in the United States District Court for the Southern District of New York, the Court explained its rationale for awarding enhanced statutory damages.
The plaintiff held exclusive copyrights in the photographs of her late husband, James Van Der Zee. The defendants were a book publisher and its principal who reproduced two photographs in a catalog as part of an advertisement for a book of Van Der Zee's photographs.
The defendants had approached the plaintiff about permission to reproduce the photographs in the book and negotiations pursued. However, no agreement was ever reached and the plaintiff never deposited a check she received from the defendants nor gave permission to reproduce the photographs.
During the negotiations, Van Der Zee discovered that the defendants had already reproduced the two photographs in the catalog. Litigation ensued when settlement negotiations were unsuccessful.

THE FACTORS INVOLVED
Defendants eventually defaulted and the Court was asked to enter judgment for statutory damages. The Court, in its analysis, stated that several factors go into determining statutory damages, including expenses saved and profits reaped by the infringers, revenues lost by plaintiffs, the value of the copyright, and the deterrent effect on others besides the defendants. Additional factors include whether such actions were wilful or innocent.
The Court found that there was no evidence of what profits were derived by the defendants since they defaulted, but that at a minimum defendants avoided payment of $1,500 per photo, or a total of $3,000 in licensing fees, which had been set by plaintiff. The Court concluded that doubling this $3,000 amount to $6,000 and awarding that amount in damages was appropriate for the plaintiff's loss. The Court further stated that such amount bore a reasonable relation to actual damages suffered.
The Court, having determined that the defendants are in the book publishing business and therefore in the position to repeat the unauthorized production of copyrighted material, determined that there was deterrent value in assessing damages against the defendants.

WILFUL CONDUCT
As a result, the Court found defendants' wilful conduct to be a basis for enhanced statutory damages. Such enhanced damages, said the Court, are acceptable in light of the Copyright Act's goal of deterring wilful misconduct. Under the circumstances of the case, the Court awarded an additional $5,000 for a total of $11,000 in statutory damages.
Furthermore, defendants' failure to appear and defend the case and to turn over documentation to assist the Court in assessing damages, constituted wilful conduct sufficient to justify the award of attorneys fees in the sum of $14,965. The final judgment was therefore in the amount of $25,965, against both the publisher and its principal, jointly and severally.
The case is illustrative of a Court's ability to fashion damages to fit the circumstances of the case. In this situation, with little to go on, the Court doubled the normal licensing fee and then tacked on an additional amount to determine appropriate statutory damages. It also clearly demonstrates the benefit of registration of copyrights at the earliest opportunity.

Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq@aol.com.

When The Web Was Just A Youngster

The Web is changing the way we do our shopping. What was once the dominion of the mail-order catalogs is now becoming the realm of the Web.
As recently as six years ago, it was useless to use the Internet as a source for stock photography. Now, just as the Web is fast becoming the medium of choice for consumers who like to "catalog shop," this transition is also occurring in stock photography.
What has contributed to this change in the picture-search process for photo researchers?
The convergence of technological developments, plus hardware and software innovations, have improved the Web to where it is now becoming a workable alternative marketplace for stock photographers and photobuyers.
Here are contributing factors:
Computers: speedier, more powerful, cheaper
Modems: more powerful, swifter, cheaper (DSL, IDSL, cable modems)
Storage: lower cost of digital compression
Scanners: more selection, lower prices, finer quality
Telephone lines: speedy, and becoming user-friendly, e.g. Vonage (with speedier technology, e.g. DSL)
Browsers: easy to use and free
Computer literacy: steadily rising in publishing circles
User software: easy and simple Web authoring tools; photoshop; word processing; spreadsheets;
databases; digital manipulation is faster and easier
CD-ROM, CD-RW, DVD now commonplace
Digital delivery: scan previews already acceptable; hi-res direct download becoming increasingly soon to become wide-spread.
Royalty-free: creating new markets and educating new buyers; has survived the initial uproar to become accepted and a benefit for both buyers and photographers
World Wide Web: For photographers: several marketing and image-display services to choose from; for photobuyers: increasing numbers of photographers on-line to choose from, speedily found by using search engines with text descriptions of images and photo specialties; virtual portfolios available upon request; light boxes now commonplace

TRAVELERS ABROAD

Photobuyers: Watch this column. For the e-mail address, phone or fax number of the traveling photographer, call the PhotoSource International office and ask for Lela Labree (1 800 223-3860). For an expansion of this list: www.photosource.com and press the Travelers Abroad button, to learn of past international destinations of our photographers.

Lee Snider April 6 – May 15, 2006 China
Jim West May 27 – June 8, 2006 Belize
Cedar Bough Saeji March 20 – September 14, 2006 China and Korea

CHANGES

Each month we report to you moves among, within and between: publishing houses, stock agencies, photobuyers, photo researchers, ad agencies, and design firms.

TERRELL CREATIVE, former address: 6100 Connecticut Ave PO Box 34260, Kansas City, MO 64120; current address: 5900 Parretta Drive, Kansas City, MO 64120.

STRANG COMMUNICATION (600 Rinehart Rd, Lake Mary, FL 32746) former contact and e-mail: Mark Poulalion, Design Manager, markp@strang.com; current contact and e-mail: Bill Johnson, Design Manager, billjohnson@strang.com.

WATERSKI MAGAZINE (460 North Orlando Ave, Winter Park, FL 32789) former contact and e-mail: Shawn Jenkins, Associate Editor, shawn.jenkins@worldpub.net; current contact and e-mail: Todd Ristorcelli, Associate Editor, todd.ristorcelli@worldpub.net.

COBBLESTONE PUBLISHING, contact person, Peg Lopata, Associate Editor. Former address and e-mail: 20 Grove St, Peterborough, NH 03458, plopata@caruspub.com; current address and e-mail: 30 Grove St, Peterborough, NH 03458, plopatafacesmag@yahoo.com.

HOW TO FIND A TAX ADVISOR

Looking for a tax professional knowledgeable in the area of intellectual properties? Some people mistakenly think they can turn to a neighbor, or Uncle Jim, or that retired bookkeeper down the block, who is “good at taxes.” The price might be right, but for those who go this route it costs them in the long run. Moreover, they’re opening their checkbook to educate this tax person, since the average tax accountant or CPA deals with intellectual properties seldom, if at all.

The aim is to save on your taxes, not to just pay them. (“To evade taxes is illegal, to avoid is your constitutional right!”)

You want a tax adviser experienced in intellectual properties, who will show you how to apply for and get the write-offs (deductions) that are due you. A tax accountant experienced in intellectual properties may not be easy to locate in your local neighborhood. But here is a simple method to find one. Check around your community and find several successful creative persons who are doing well in their business: musicians, filmmakers, software developers, artists, songwriters, photographers, etc.

Call each one and ask who they use for their accounting and tax work. After awhile, the same name will keep cropping up. He is your man (or woman). –RE

A Milestone (of sorts)
By Bill Hopkins

It's one of those dubious milestones, for sure, but last month marked the 20-year anniversary of the first computer virus. It was named the Brain virus, and it infected the boot sector of 5.25-inch 360k floppy disks (anyone remember those?). First detected in 1986, it spread around the world without help from e-mail or the Internet. Amazing, but true. Who remembers the Stoned virus? Here's a brief history. Lehigh was the first memory-resident virus. Tequila was the first stealth and polymorphic virus. Michelangelo came with a pre-programmed execution date (March 6). Concept was the most common virus in the world up to that time, and the first cross-platform virus, infecting Word documents on PCs and Macs. Then came Melissa, a macro virus with a twist: it would e-mail itself to folks in your Outlook address book, earning it the distinction of being the fastest-spreading virus at that time. Then came the infrastructure viruses, aimed at servers, network shares, Web servers, etc., worms with names like CodeRed, Nimda, and Sober. And not to be left out (as we recently reported) are viruses targeting cell phones. PDAs and MP3 players are at risk as well.
Remember to practice safe computing. Use anti-virus software, keep it up to date, turn on your firewall, install critical and security patches for your operating system, don't open e-mail attachments that are unknown to you or that you are not expecting, and don't spread e-mails about hoax viruses (check them out first).

Voice Prompt Purgatory
"Please listen to all the options before making a selection as our menu has recently changed." So why don't they tell you WHEN their *#($*!@ menu changed so you'd know if you really had to listen to all that.
And on top of that, does it seem to you as it does to me that what you really want to transact is never a menu choice? Well, for some companies that you call often, you probably know the shortcuts to get to where you want to go. For the others, here's some help. It's called the ‘gethuman movement’ (previously known as the IVR Cheat Sheet). Their main home page is at http://gethuman.com, with the "how to get to a human" buttons to press at http://gethuman.com/us/. You can rate a company’s customer service, add ones not listed, etc. There is even a list for the UK. Here's their mantra: "The 'gethuman movement’ is powered by over one million consumers who are fed up with bad customer service. We demand high quality, prompt, human customer support, by friendly, qualified people whom we can understand, and who can handle our call without putting us on hold or transferring us again and again."

Phishing
Just like fishing on the farm, only the fish is trying to hook you. Phishing refers to the attempt by hackers and other Internet low-life to get you to reply to an e-mail with your personal info, such as account numbers, passwords, etc. They come as legitimate-looking solicitations, even down to the company's logo and typical wording, often with a few legitimate hyperlinks thrown in. Over 100 major brand names are targeted, such as Apple, eBay, Citibank, Amazon, etc. Don't be duped. Check out the links independently, contact the company using your normal contact channels (telephone; secure website; postal mail, etc.), consider if what they are asking makes sense (did you really just register at the university, or open an account online?) and then use your regular contact route instead of hyperlinks in the e-mail. Also consider using Thunderbird (http://www.mozilla.com/thunderbird/) as your e-mail client. It has a built-in phishing detector to flag suspicious e-mails.

Bill Hopkins is the Webmaster of PhotoSourceFolio* (www.photosourcefolio.com) and a regular contributor to PhotoStockNotes. Send comments via e-mail to wh@photosourcefolio.com. Fax: 1 818 831-0916. For on-line questions, contact Bill on the Kracker Barrel at www.photosource.com/board.

Lensman's lyrical trip in CUBAN COUNTRYSIDE
http://www.kentucky.com/mld/miamiherald/news/
world/cuba/14101997.htm?source=rss&channel
=miamiherald_cuba

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Next Month: Orphan Works

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