“They used my picture a SECOND time and haven’t paid me for it,” the subscriber wrote. “What do I do?”
Get your money. Creative people sometimes forget that the bottom line of any business is the profit line.
No matter what your talent, you’ll miss the opportunity to see your photo credit line in national circulation if you don’t have the funds to produce the pictures.
Here are five progressive phases to put into motion if a photobuyer makes an unauthorized use of one of your pictures. If Step One doesn’t succeed, proceed to the next step, and so on:
1. Send the Stroke / Slap / Stroke / Slap / Stroke letter.
2. Follow up with a phone call.
3. Send the Slap / Stroke / Slap / Slap / Slap / Stroke letter.
4. Have your attorney write the “Kiss ‘n’ Make Up” Letter.
5. Take legal action.
Step 1. If a photobuyer at a major publishing house uses a picture a second time and does not pay for it, it’s usually out of ignorance or oversight. Be charitable. You can avoid the time-consuming educating tasks of the next four steps if you get your initial letter “right”. Stroke: “I have long admired your publication and have enjoyed doing business with you.” Slap: “Thus my surprise to discover your second use of one of my photographs, with no payment.” Stroke: “Perhaps this has just been an oversight.” Slap: “Perhaps you were unaware that industry guidelines predicate that 75% of the original fee is paid for second use.” Enclose a statement (invoice). End with a stroke: “Thanks in advance for resolving this matter.” Note: An e-mail is okay, but it might be better in this case to contact the editor on first-class, professional stationery.
Step 2. If you don’t hear within three weeks, follow up with a phone call. (Not an e-mail) Use a script and practice it with a partner on an extension phone. Your tone and posture on the phone should be courteous but decisive and firm. (“All the world’s a stage.”) Keep a telephone log of the call (and any subsequent calls). If still no results:
Step 3. Send a stronger letter to show them you mean business. Again, be courteous but firm. Be nice, avoid threats or any comments that will destroy the photobuyer’s self-esteem. Remind them they may be in technical violation of the U. S. Copyright Law. For more emphasis, send the letter via certified mail0
. If you belong to a national photography organization, send a cc: copy to its legal arm.
Step 4. It’s now crossing over to where you’ll have to ask yourself if the politics involved will damage a future working relationship with this photobuyer. You may need to decide whether you want to compromise for the sake of ensuring future sales opportunities, or to risk jeopardizing this market on your list. If the latter, then go full steam ahead. Now it gets expensive. Review the details with your attorney who will write a standard, “C’mon, folks -pay my client what he/she asks.”
Step 5. If big money is involved, initiate a suit. Ask your attorney to take it only on a “contingency basis”. (If you win, the attorney gets paid.) Alternative: Take the photobuyer to Small Claims Court (an education in itself). You’ll have to travel to the state and city of the photobuyer. However, a Summons has a good chance to snap the photobuyer awake and to send payment before things escalate to a hearing.
Your situation has escalated beyond your original request for 75%. Now it’s time to ask for a higher fee.
Hint: In your advisement for payment, ask for a fee one and a half times higher than the amount you feel you deserve. (You can justify the higher fee by naming costs of phone calls, administrative time, office correspondence, etc.). At the day of reckoning, the photobuyer will want to save face by offering a fee lower than what you asked for. You can allow it, and your relationship might survive intact.
A few additional tips:
Take charge. Suggest solutions. Initiate a plan of action. Follow through at each stage. Be persistent.
Avoid dealing with photobuyers or publishers who have been in business less than three years. Let others be the guinea pigs with such markets.
To avoid re-use problems altogether, place a label or notice on your invoice at the time of original sale that spells out re-use requirements, e.g. foreign rights, electronic use, etc. State your terms, succinctly and diplomatically, for what would be an acceptable re-use transaction. This not only makes your business operation more professional but it avoids later misunderstanding.