Skechers Sketchy Defense For Ignoring License Terms

- - copyright

A case in which photographer Richard Reinsdorf files a federal lawsuit against Skechers to the tune of 250 millon dollars seems to be flying under radar as it crawls through the courts. A reader alerted me to it months ago and I recently went back to see whats developed.

The suit started when Reinsdorf discovered that images he took for Skechers from 2006-2009 and licensed to them for very specific terms–six months use in North America for point of sale, magazines and certain outdoor advertisements–were being used for several years and included in ads overseas and on packaging and other unauthorized media. The suit states that Skechers “completely and utterly ignored the terms of the license.” (source)

First reported by TMZ back in September of 2009 it took an unusual turn in 2010 when Skechers filed a motion to dismiss claiming ownership of copyright because of “alterations they performed on the images from slight modifications in models’ skin tone to the substitution of models’ body parts and the addition of substantial graphic effects.” They asked the judge to dismiss because they couldn’t possibly have infringed on their own copyright.

If you want to read the motion to dismiss you can download it (here). It certainly would set a disturbing precedent in the photography world if something like this were to be allowed. In the discussion the judge states that “Skechers is correct that a co-author in a joint work cannot be liable to another co-owner for infringement of the copyright” but that’s not what’s at issue here because “Contrary to Skechers’ assertions, the evidence in the record does not indisputably establish that Reinsdorf intended that his photographsbe incorporated into a joint work.” He simply gave them a limited license to their use. The motion to dismiss was denied.

The latest I could find was an order granting Reinsdorf an extended discovery cutoff of May 15, 2012 (here). This will certainly be a case worth watching. I’ll be interested to see what the judge thinks of the $250,000,000 price tag, the limited license terms and Skechers sketchy defense that advertisements are a joint work and can be used where ever and how ever they want.

There Are 68 Comments On This Article.

  1. I am certainly no lawyer, but whatever the merits of the case, when someone makes a claim of 250 millon dollars, I feel it makes a negative impression. Why do people have to be so ridiculously greedy? Why not claim for a realistic and reasonable amount?

    • Listed on NYSE under the symbol SKX. Annual revenues over $1,4Billion last several years with Gross Income over $600million each year.

      http://www.marketwatch.com/investing/stock/SKX/financials

      The number $250million might seem high, though perhaps they started high in hopes of a settlement. I think a judge would look at what the photographer would have charged for long term global licensing, and possibly what percentage of global ads continued to use his images.

      What bothers me is that they are generating sales and revenues off those images. Why not acknowledge the person/people who enhanced your brand, and negotiate a reasonable licensing agreement with them?

    • Martin Allen

      Lets go easy on big companies systematically stealing photographers work and profiting from it. In fact lets just say its not a crime to do it at all. We have laws and penalties when those laws are broken. Skechers should and probably will pay. How much? I’d venture to say Skechers won’t be so liked by a jury when it comes out that they knew what they were doing and kept on doing it. $250,000,000 is probably not going to happen but $100,000,000 could. This ain’t no $250,000 case. If it were do you think Skechers would be spending millions defending it? I’m guessing it settles for $15,000,000. Any bets????

      • Art buyer

        I take settlement….. For how much – need more info.
        Clients will often request other market/media costs. This could have been provided upfront and if so, I’m sure will set precedent . If Richard has documents totalling $250m then good luck sketchers. I have no doubt they knew what they were doing and took the risk.

        The best outcome for all will be a hefty settlement made public.

    • Greedy? It’s called big penalty for big infringement.

      If the photographer goes for a slap on the wrist, or even what it would actually have cost to license the photographs it would only encourage corporations to infringe. Why not? If you get caught and have to pay only what it would cost to have bought the appropriate rights to begin with, you might as well try stealing the work. You might get away with it, and if not, you only make a deferred payment.

      The amount has to cause the perp enough pain to insure they don’t infringe again, and send the message to other companies considering the same tactics that it’s a really bad idea. Using several years worth of work, globally in a range of media adds up quickly.

  2. CB, wasn’t Sketchers being the greedy party here? The claim may likely be based on Sketchers world wide sales and corporate profits over the period involved and it is pretty clear that unless Sketchers can successfully make and prove a claim that all of those sales and growth had nothing to do with their advertising and
    marketing (good luck with that) that the advertising and marketing was dependent on the image of the company projected by the work the photographer did.

    If that is the case and the photographer owns the copyright to his share of the work, given all of the usage, $250,000,000 might be a perfectly reasonable amount to start the negotiations (and lawsuits are just a particularly hostile form of negotiation) from.

    • I agree with CB. Even if they had licensed everything for all those years, you think they would have come anywhere close to 250M? More like 250K.

      Lawsuit damages have always seemed so distorted to me, whatever the suit may be, and its true that the stakes go up if the disagreement goes that far but 250M is a major stretch.

      • Art buyer

        Kyle

        Richard may have given them a cost for each market, each media that comes close when totalled to $250m.
        He may have also given them a total buyout or part combined costs for somewhat less.
        But he may have a history of media purchase percentages. And that could be what he is basing his $250m on.

        Sketchers is playing the big fish in the pond card. Hopefully they are a big fish with a big wallet. It’s theft!

  3. With every post of outlandish acts that compromise the integrity of the photographers work, there should be a follow up as to what can we do about it. Without this we are left as readers frustrated and feeling as if our hands are tied. In part it is our duty to provide beneficial ways to “act” so that we not only provide ourselves with a space to be “safe” but also to educate our community and our client.

    One resolution to the situation presented is a line in the contract say something to the tune of :

    1.1 User may not reverse engineer, de-compile, disassemble to create additional derivative works from the Image(s),

    1.2 User may not sell, license, sub-license, assign, post or distribute Image(s) or derivative works thereof in a manner in which others may extract Image(s) or download such as stand-alone file(s),

      • So why is it then that the story written about, has a discrepancy to the rights of ownership? Stating clear terms to what is obvious and apparent (for one party) in contractual agreements is necessary because it defines what is agreed upon by both!

      • “You shouldn’t need…” – umm, I think you just described the entirety of the current state of business & contract law.
        ALWAYS DELINEATE THE TERMS, there is NO excuse for lack of specificity. (Unless you just don’t care, in which case, why even draw a contract?)

        There will always be some who decry the flood of “legalese” in our lives, but seriously (and clear to anyone who has formally studied law) – terms and provisions exist to prevent things like this; this case would be occuring on a daily basis and create utter chaos if not for clear contracts and the laws that pertain.

  4. I like the $250m amount–a loud statement like that about copyright infringement is needed right about now. I also read that the models are suing, so it’s great to see they’re protecting their rights, too (just $10m though for them).

  5. Would it have been better for the Sketcher’s account team/art buyers to just negotiate at the time of the shoot that they wanted a complete buyout of the art for any use at all? It would have cost them much more on the front end but hey, no problems down the road. It just seems so brazen and entitled to use the work in direct and obvious contradiction to the terms of the original contract. How would they like it if the photographer bought one pair of skechers and decided that meant he would get free skechers for life?
    I think the $250,000,000 is a good indicator of just how PO’d this made the photographer.

    • Better yet. Why aren’t they settling this now instead of trying to fight it.

      • Art buyer

        Nice

        Buy a pair of Sketchers and help yourself to as many pairs as you like for life.
        Including family and friends.

    • Yes it would have been better for Skechers to negotiate expanded rights at the time of the initial agreement. But, what do you bet

    • that they were just too cheap. They didn’t want to pay at the time of the shoot and they didn’t want to pay as they continued to use the photos. Being cheap in the short run isn’t always a good thing in the long run.

  6. “I agree with CB. Even if they had licensed everything for all those years, you think they would have come anywhere close to 250M? More like 250K.”

    I wonder how close $250,000 is to the original fees for the licenses they paid for. My bet is fairly close.

    I know a photographer who ended up settling for $250,000 for unauthorized usage by a textbook publisher for a single image that was originally licensed for aroud $3-5000 for a one time , smaller than a half page use in a single printing. The publisher went on to use it in multiple editions and in other textbooks and electronic uses and thought they’d they’d never be found out. Like Sketchers the unauthorized uses were discovered after the fact.

    Comments like yours reveal a couple of common misconceptions on the part of many creative
    people.

    1) We often have no idea of the value of our work to an enormous business.

    2) The truly mind blowing sizes of these national and global businesses.

    I have no doubt there have been on going negotiations between the two sides. That the legal side of those negotiations has gotten this far is a pretty good indication that the Sketchers side has decided to try a very risky strategy and that so far it has failed. They probably believe that they have resources to simply wear out the photographers through attrition. That or they are either getting really bad legal advice or in the executive suite are ignoring good and sane legal advice. I suspect the latter.

    • You are right 250K would be too low. I was making a point.

      I think the mis-conception is that any commercial photo(s) will ever be worth 250M even if they had it printed on the surface of the moon without your permission.

      I guess I just associate 250M with something like a chemical company giving me cancer after dumping waste into my drinking water. Maybe I am just lacking the proper sense of entitlement.

      • You need to also consider that the 250Mil may represent the maximum potential as told by the law. Obviously if you’re a lawyer making a case to get their attention, this number is it. It also makes a settlement for a far lower number that much more likely.

  7. I think Ellis is right on when he talks about the value of these photographs to the clients. Clearly, they were valuable enough for them to use them in subsequent campaigns worldwide… You combine that to accounting of profits and likely wilful infringement and the numbers start to make sense quite quickly.

    • Martin Allen

      I agree $250 million is a hell of a lot of money. We must also agree that stealing copy written material is a serious offense and those found guilty should pay heavy fines. In this case, were not talking about 2 or 3 images in a magazine. The infringement allegations are for over 230 images in over 30 countries over a period of up to 3 years. When you add up the number of alleged offenses were talking thousands not a few. That can not be glossed over and merely dismissed as outlandish. After doing research, a copyright owner is entitled to a portion of profits if his/her copyright has been infringed. The issue is not what would he have been paid if Skechers paid for rights justly. That ship sailed when Skechers CHOSE to systematically infringe this authors work. Lastly, take their current stance. Skechers is claiming co-authorship of advertisements and other media that the pictures were used in. That is laughable. To the point, if they are allowed to make this argument, all photos even with usage agreements would be null and void if a company adds a graphic or background. He is not seeking damages based on ads. He is seeking compensation for Skechers unlawfully using his PICTURES in those ads that were not part of their usage agreement. This could be a watershed case. Photography would no longer be a protected art form. This is a very slippery slope and must not go unnoticed.

  8. The 250m vs 250k issue issue boils down to anticipating a trial in which the jury will grant the award or affect the award. If the award is limited to damages, then it will be provable damages. But if a punitive award is granted, then that award is not given for damages but rather is given as a punishment for reprehensible behavior. There are limits on punitive damages. Not likely 250 million, but substantially higher than the actual damages. In a jury trial, punitive awards are very hard to predict. Might as well swing for the fences. Everyone does. So you sue for everything under the sun, hoping that you will get actual damages plus a punitive award. If the case goes to trial, then the threat of punitive damages increases the chances of settlement.

    That settlement calculation can look something like this… what is likely to be the award if we lose? and what are the chances that we are going to lose?

    If we think we have a 10% chance of losing and thereby will be forced to pay $100,000 in actual damages and no punitive award, then we offer up to $10,000 to settle. However, if we feel that we have a 50% chance of losing with actual and punitive damages of $10 million on the table, now we start looking at offering up to $5 million to settle.

    This is an interesting test of authorship.

  9. If the mandatory copyright infringement statutory penalty is $15,000 per infringement (off the top of my head I don’t know what the current dollar amount is. If you do please chime in) than it would appear that there were 16,666.66667 infringing uses. Worldwide over a period of years for a popular consumer brand I can easily see that happening: print ads, billboards, web ads, posters, etc.

  10. Just look at all the trouble that artist got into over his use of the Obama photo for his HOPE poster …

    Why shouldn’t a commercial enterprise get in big trouble, too?

  11. If by some chance Sketchers is able to win or make some headway with it’s ridiculous co author defense, I assume we would see more of these infringements. Scary.

  12. I kind of hope the photographer gets $500 million. Something has to stop this kind of thing from happening. So far, so bad.

  13. How many images are we talking about here? Was this 1 photo over 4 years or 250? Are they still using them? If it’s 250 images over 4 years worldwide on billboards, bus benches, magazines, newspapers, and point of sale displays- divided by how much money Sketchers made… 250 million by be LIGHT.

  14. its kind of funny – why companies all over the world think they can screw photographers ?
    i just dont get it – nobody walks into a bakery, buys two rolls, then comes back the next day and asks for two more wihout payment, as he alreads payed for two yesterday.

  15. I certainly hope that Richard has a signed Estimate containing defined license, term of use, territory and certificate from LOC. I do not think that it’s a $250 Million case? No, but when you multiply the actual fee by unauthorized usage plus punitive damages I think that it will cause a little pain to the leadership at Skechers.

  16. Martin Allen is absolutely on point! Sketchers stole Reinsdorf’s work and they were caught! They converted his property which in this case is his artistic talent, Sketchers has a battalion of lawyers and experienced personnel and they know they were caught with their hand in the cookie jar. This case will probably settle but it seems that unless Sketchers is punished for these intentional acts, such theft will continue by others!

  17. If i were Reinsdorf’s lawyers, as soon as the ink is drying on the settlement I would be filing infringement charges using the motion as a confession. Ask for max allowed and wait for the check to arrive.

    • Martin Allen

      I think thats what they are doing minus a settlement that would include a complete buyout without the ability to sue further.

  18. When I consider the $250 million sought for damages and compensation it seems appropriate. The traffic for Skechers dot com site is is estimated at 72,349 Daily Views. It doesn’t include other sites used to advertise. When you gather up all of the numbers related to the misappropriated photographs and the amount of time, it could pencil out.

    The bigger point is; infringement, licensing violations by any sized company needs to come to an end. This could be the case that brings it all home, maybe not….

  19. Sketchers are really, really ugly shoes.
    If he puts them out of business with this, he’d be doing the whole world a favor.

  20. Also of note: Sketchers is also involved in a class-action suit for misleading consumers on the benefits of the Shapeup shoes with “Deceptive and unlawful advertising”.

    (SFW) http://bit.ly/xupdRT

    Top to bottom mess in the marketing dept of this company.

  21. I am curious about the models in the photograph. Where their likeness being used beyond any agreement they or their agency made when they booked the job? It should not just be about the infringement of the photographer’s copyright.

  22. The case clearly has merit, and based on the judge disallowing Skechers request to dismiss, the photographer’s paperwork IS in order.

    The $250M number is gonna be hard for a jury to get their heads around in terms of it being appropriate compensation for ‘just using a bunch of pictures’. Witness what happened to Chris Usher v. Corbis.

    The potential for establishing precedent is clearly VERY valuable, for both sides. I’d be willing to bet that there are LOTS of amicus briefs that will be filed on Skechers behalf by LOTS of companies if it gets to trial. Basically every corporation out there would like to see this issue go in their favor, especially Google, Facebook, Microsoft, Pinterest, et al.

    We should all be following VERY closely, and filing Amicus briefs of our own. In addition, I’d be interested to see/hear what the APA/ASMP/etc groups are doing to help.

    While it’ll never happen, especially in this era of Citizens United and all the other recent rulings, personally I think it’d be a superlative lesson (!!!) IF the case moves to jury, and that an ancillary criminal case is filed against the corporate officers. Seems to me that SOMEONE (or more) had to okay this kind/scale of theft, it didn’t happen on its own. And that (should be?) a criminal act.

    While a big fine will be a deterrent, in the end it just comes out of the shareholder’s pockets. There’s ‘no scare there’. Look at the result of the bank bailouts. No one did time. However, the SEC has gone after a lot of traders lately, and oddly enough (?) insider trading is down.

    Personally, I’d like to see the people in charge do some time. Like . . . 5 years.

    Be interesting to see how much it’s worth to Skechers to fight, who knows, might go all the way to the SCOTUS.

  23. Southern Photographer

    I work in a mid-size market in the south. Larger companies and agencies, pressured by their clients (national clients in healthcare, music industry, footwear), in our market will manage to find (competent and even talented) photographers willing to sell all rights, including copyright, to their images, so they never have to deal with a photographer coming back, wanting more money for additional usage of an image.

    It’s a common practice. If you want to survive here, you have to be willing to do a bit of this. I’ve said no to (a lot of work) from one creative agency, after they implemented this policy on behalf of their clients. They found someone else who would give away rights, do a “buyout” if you will. And he’s a decent photographer. Funny thing is, I still have out with the art directors and know they love my work…

    I’ve worked out an agreement with one client, a quite profitable “non-profit” Christian company with several magazine titles, to sell either one image or up to five from a shoot, with shared copyright. It’s been a regular client for me, so I saw the value in doing this.

    I picked up another magazine title/art director client there, who fired her previous photographer for selling some of his images as stock (which had shared copyright as well, and he had every right to do so). These people (and many companies here) are under the impression that once it’s paid for, it’s all theirs.

    How do you educate your clients and prospective clients? In many cases, it’s not about talent, perceived value, or the client experience you deliver, but about the bottom line, and how “easy” someone is to work with (e.g. give away their rights)…

  24. Edward C. Greenberg

    Always a topic at lectures Jack Reznicki and I give is the seemingly crazy sums requested in lawsuits. As attorneys well know but the public does not, the initial papers typically request the maximum amount of money or damages which can be awarded if the plaintiff prevails on all counts. So since each willful copyright infringement can be punished by an award of $150,000 under the Copyright Act and other laws provide for the possibility of big recoveries, a lawyer traditionally and usually puts all the numbers in.

    The public is frequently mislead into thinking that the amount asked for has any relevance in “real life” because reporters are as uninformed about such things as their readers. So take it from a lawyer, read whatever reports of a case you may see with a jaundiced eye and a big grain of salt. Concentrate on the merits of the case not necessarily the oft times misleading amounts of money the press puts in your face solely to get your attention.

    I was consulted by an infringer on a case where he/she/it could easily be held liable for over twenty five million dollars. Could there be an award of that size ? Sure. It might also settle for a fraction of that amount. The author’s attorneys are asking for over 100 million dollars – it was a possible but not likely result fully supported by the math but not the facts.

  25. Souther Photographer

    Disney contacted me for a multi-day shoot…

    Some tidbits from the agreement:
    Deliverables
    – 100 images minimum

    Rights
    – WDIG to own rights to all images. This is work for hire, not licensing deal.

    Misc
    – Vendor will cover all model releases and location permits

    Timing
    – Project must be completed before TBD

    Pricing
    – Total Cost: $5,000 USD
    – 100% payment upon completion and acceptance of work

    Delivery of assets to Disney
    – Must deliver RAW

    And the icing:
    –contract did not expressly allow usage by photographer under any circumstances, e.g. not even self-promotion or portfolio.

  26. I agree that the additional usage has value as well as penalties for using the images beyond the license agreement, but $250million is ludicrous and will only damage photographers ability to collect reasonable sums for their work. I get full royalties for some of my work that is actually a joint effort by the client. The images are licensed as such that they may be manipulated by the client as much as required, but as long as any part of the image is recognizable as mine, I collect the royalties on the images. In the past I have had work that was used beyond the license agreement which originally gave the client a better deal, but they purposely used the images beyond what was contractually agreed upon. Although I should have called them and negotiated a deal, I just billed them for the additional usage which was a fair but substantial amount…basically a full price sale. They were upset, but in the end they paid without it going to court. It was a smart move on their part because it was substantially less than a law suit.
    However, had I called them, I may not have got as much, but I would have maintained the client and in the end everyone would have gone away with more money with more work down the road. The point is communication between all parties. If a work has been infringed upon, then it is the responsibility of the photographer to contact the infringer and negotiate a reasonable fee. If negotiation doesn’t work, then just bill them for the use. If that doesn’t work, then an amount has been established that is reasonable and fair. A judge would then have far more consideration for the photographer in this case if communication had been made and a fair price established for the use. It is likely that a lawsuit would then win the photographer far more than the fair use rather than having him establish that the value of this “crime” is worth $250million. The likelyhood that the photographer will make $250million in several lifetimes if extremely unlikely asking for that amount is nothing but greed and lack of consideration for proper business procedure and the procedure of law.

    • Brent Daniels

      Simon your reasoning is exactly why these large very professional, and legally well advised companies infringe as a general business practice. If the only downside to getting caught is paying the full fee as if properly negotiated prior to use why not try it on. They only get caught 1 in 3 times. They are also
      very aware that most photographers will follow your reasoning and ask for the normal usage fee, or even allow themselves to be negotiated down.
      To the corporate accounts and lawyers it makes copyright infringement sound economic business practice.

  27. @Brent! Potentially, but I don’t think that infringement as a rule is a general business practice, but rather a unfortunate but common ignorance of copyright.
    The above posts demonstrative of photographers giving up their rights is more common and provides an atmosphere where many involved don’t realize usage limitations when they are imposed with the result ending in some kind of infringement much to the photographers angst. I agree that lawyers love this kind of case, but all it does is question photographers judgement. A more reasonable suit for $250,000 would be better received and I would believe be a more likely and reasonable outcome. I can assure you that corporations would be none too happy if they had to pony up $250K with or without their lawyers. It’s not like the photographer is in a wheelchair for life. $250 million is the kind of award for medical negligence, not an artist being shortchanged for use of an image. There is no long term damage to his body, soul, or psych…he’s just pissed off. He might have lost some income from the image use, but it certainly hasn’t prevented him from being a photographer. Was he blinded by their thoughtlessness?… did he have a leg removed accidentally? No. The argument that the amount asked has no bearing in real life is what’s wrong here. That and too many photographers giving all their rights away. Full disclosure…I have done it in the past for very large sums of money, but clients don’t need to pay those sums anymore. Too many are willing to give the work away. Because of that trend, respect of photographers business acumen is not very good…and putting a sum of $250Mil to an infringement doesn’t help matters. IMHO. Those who swing for the fences usually strike out….Base hitters win games.

    • The models also have a lawsuit against Skecher’s for $10million.

      http://latimesblogs.latimes.com/money_co/2011/08/skechers-sued-by-group-of-models.html

      Amounts are weird instruments in the US in lawsuits. There was a little known photographer who photographed Barbies in compromising positions, as a form of satire and social commentary. Mattel, who own the Barbie brand, sued him for $10million. After a very long and drawn out court process, the photographer was awarded $1,8million. I think originally he made less than $4000 from art and postcard sales.

      http://www.out-law.com/page-4681

      When companies go after someone, they will not hold back on the amounts. So if the companies do not start off lawsuits with figures that some people might find more “reasonable”, then why should photographers?

      • Amounts ARE crazy. Models have every right to sue as well. As for companies that don’t hold back on lawsuits…I think the example of Mattel suing a photographer for $10million makes my point…they LOST. They were trying to protect a major brand however and the loss of potential revenue due to someone defacing that brand has far more right to a potential lawsuit than a photographer whose brand hasn’t been touched. There are two sides to every story.

    • Simon

      The late Jim Marshall kept an attorney on retainer, solely to go after those firms who chose to infringe his copyright. This happened fairly often, at least 5-6x each year, over the period of 1991-2000 when I use to see Jim on a bi-weekly basis @ a bar in SF.

      The companies that infringed his image were not ‘small concerns’, nor were their infringements ‘accidental’ in nature. They were calculated risks. Companies like Ford Motors, the Gap, Calvin Klein and others took these risks. And their media buys were not subtle either – Rolling Stone, Esquire, GQ, etc. Basically they were counting on Jim being ‘happy for the exposure’ or perhaps that ‘he wouldn’t see it’. Wrong on both cases, and they didn’t (clearly) know Jim.

      Jim would come into the bar, with the ‘infringement du jour’, order a drink, and then sit down and call his attorney. After a 10-15 minute expletive filled tirade he’d finish his drink, and then ask ‘so, how you doing?’ Always entertaining.

      Jim made a LOT of money via infringement suits, and 99.9% of the time they were settled out of court, because the firms KNEW if they went to jury they’d lose.

      The belief that we as photographers, should not watch out for and protect our assets (our work) is naive and asinine. As is the belief that if some firm steals from us (because that IS what they’re doing) that we should just ‘settle for what we would earned if they’ve licensed it properly in the first place’ . . . would you feel the same way if someone broke into your home/studio/car and took a camera case. And then used those assets to shoot a job, and licensed the resulting work to someone? Of course not! You’d want a) your property back b) the thief to be punished – both financially and via jail time and c) a clear and obvious signal sent to other potential thieves.

      It baffles me to no end why (????) photographers assume that stuff like this is an ‘honest mistake’ and to just ‘settle/make nice/not make waves’.

      If and until there are LARGE and consistent findings against these kinds of actions, it’ll continue. It’s factored in as a ‘cost of doing business’ by corporations.

      As for your comment about – “The above posts demonstrative of photographers giving up their rights is more common and provides an atmosphere where many involved don’t realize usage limitations when they are imposed with the result ending in some kind of infringement much to the photographers angst.” Am I to presume that just because you jump off a bridge I should follow you?

      Recently I photographed a trial attorney, one of the top 10 in the US. He wins HUGE awards for his clients because he’s able to clearly and concisely demonstrate that his clients have been harmed by the defendant in his cases. And he deals only in IP, NOT ‘loss of limb/ambulance chasing’ cases.

      BTW – asking for $250k, and assuming the company in question would be ‘none too happy’ – you’d be wrong. They probably spent at least that much (if not more) just to produce the infringed images. To pay that amount, after using them globally , for six years – that’s pennies on the dollar.
      Given that the models are suing for $10m, $250m sounds fair and reasonable.

      PLENTY of clients are STILL paying LARGE amounts of money for images, despite your assertion to the contrary. You’re correct though about the assumption of lack of business acumen on the part of photographers.

      Your counsel to ‘just settle for what’s offered, i.e. go for a base hit’, confirms that apparently you’re in that group as well.

      • Just wanted to add that there are many ethical companies out there not actively working with photographers, and interested in seeing us continue in our creative professions. It still seems to me this is more common than companies trying to screw creatives.

    • Martin Allen

      you just either don’t get the issue or you own skechers stock. either way, there are copyright laws and you should familiarize yourself with them before you defecate your uneducated opinions on us. i’m sure your a great bar mitzvah photographer…

      • First I will not respond to insulting comments via Martin. It’s that kind of behavior that isn’t constructive to anyone. I do not believe one shouldn’t go after infringements…quite the contrary. My only point is that $250Million is ludicrous. The very fact that almost every photographer I know seems to spend a good deal of their time educating clients as to copyright law makes me understand that many clients are not educated to the law. I also believe there are clients out there that take advantage of photographers for their poor business sense… and perhaps are willing to risk infringement. One can go through life believing that everyone is out to get them and “screw them”…or one can go through life with a positive attitude backed up with good contracts that if are broken have consequences which are reasonable but painful to the offending party(ies)
        Yes…statutory amounts of $150K per infringement is the current maximum allowed amount, but if he can get $250million here…then more power to him…. I just don’t think personally it’s a smart move, but I respect all opinions here except those that are inflammatory and juvenile. I have only had a few cases of infringement by a commercial client(s) and only one did I lose the client. All paid for infringed usage of the images…one client decided not to continue their relationship, but another used us for a further 6 years generating close to $60K/year just from that one client. I have 30 years of experience in this business as a commercial, editorial, and advertising photographer. Copyright registration is essential to demonstrate the seriousness of your work.
        However, my biggest lesson that I forgot recently involved my participating in forums and expecting reasonable and respectful discussions from some participants. To all those that are however…I applaud you.

  28. i hope that the copyright for images is on file with the library of congress, this gives teeth to the monetary claim for damages!
    asmp has been expending great effort to get their members to file copyright over the last couple of years, this is exactly why it is so important to do the proper filing.

  29. The current maximum dollar amount for Statutory Damages is $150,000 per infringement. For those not familiar with Statutory Damages, they are specific damages allowed under the copyright act for images that have been registered with the Copyright Office prior to the infringement. Basically, for each and every time that Skechers used an image outside of their license, the photographer can make a claim of $150k.

    According to my math, a $250 million claim translates to 1,667 cases of infringement. When you consider that the photographer probably shot thousands of images for the company over a three year period and that this company makes heavy use of imagery in advertising, point of purchase, web etc, I don’t think that 1,600 plus instances of infringement is out of line.

    Assuming that the photographer registered his images prior to the infringements, he’s entitled to claim whatever Statutory damages the law allows. Doesn’t make sense for him to claim anything less. Doesn’t mean he’ll get it.

    Now if he didn’t register his images, that $250 million is pretty much just pie in the sky dreaming. With unregistered images, the photographer is only allowed actual damages – the amount that he might have originally licensed the images for – which sure as heck isn’t $250 million.

    • Martin Allen

      you as well are uninformed. an unwilling partner in copyright infringement, even if not registered prior, is entitled to a share of profits.