UNLIMITED LICENSE (TO SUE)
IP attorney Christopher Seidman protects artists in the digital age
INTERVIEW BY ERIK LUNDEGAARD
Q: You’ve been doing this for 10 years. Has
copyright infringement worsened, gotten
better, or is it about the same?
A: I think there is an education process
occurring: Just because it’s on the Web
doesn’t mean it’s in the public domain.
We’ve heard many people claim that. That’s
never been true. I think people are starting
to realize it isn’t true.
Q: How often do these cases go to trial?
A: Harmon & Seidman has represented
clients in two jury trials, out of well over
100 filed cases. That represents the typical
kind of rate of settlement-to-trial in a case.
The rest of them do settle … but only after
the publishers have paid hugely in their
defense. They don’t want to admit that
they’ve acted improperly, and they are led
to believe they have successful defenses
that will make their exposure minimal, if
any. But these defenses—standing, statute
of limitations, registration defects, implied
license, etc.—have overwhelmingly been
rejected. It’s so ironic, but these companies
that rely on the robust enforcement of our
copyright laws are themselves egregious
Q: Your partner, Maurice Harmon, was a
professional photographer, as you said, so I
understand his interest. But what attracted
you to this particular area of the law?
A: I was attracted by two things. I liked
aligning with the underdog, and these
photographers are clearly that. The
companies that we bring our cases against
are multibillion-dollar international
companies with thousands of employees,
billions in revenue, and they are represented
by the big corporate defense firms like
Skadden Arps and Morgan Lewis.
The second thing I liked: all of the
clients are incredibly creative and a group
Q: You have a niche practice representing
artists in copyright infringement cases.
How did that develop?
A: Back in 1980, I rented office space from
Maurice Harmon in Grand Junction. He
practiced for eight years and then gave it up to
move to Manhattan and become a professional
photographer. In the process of doing
that, he got to know the A-list professional
photographers, most notably Jay Maisel.
Fast-forward 15 years. He is starting to see
his work in places where he didn’t authorize
it to be. A publisher licensed an image of
his for 10,000 copies for a book cover. This
was when Amazon was just getting off the
ground, and Amazon promoted the book
as a best seller—announcing that 220,000
copies had sold. He happened to see that
and brought his infringement claim and
ended with an outcome that was many
multiples of the licensing fee.
Meanwhile his photographer friends are
looking over his shoulder, saying, “Could you
look at our work?” And he quickly became
overwhelmed and asked me to join him. So 10
years ago, we started a practice representing
photographers, artists, writers in copyright
infringement cases on a contingency basis.
Q: How viable is that?
A: Well, we discovered that publishers like
Houghton Mifflin, McGraw-Hill, Pearson,
John Wiley & Sons, unbeknownst to the
photographers, would gain limited licenses—
limited to keep the cost down—and then go
on to use the image, if it was a photographic
license, in excess of the license permission
by printing unauthorized copies, distributing
in unauthorized countries, and making
unauthorized Internet or e-book uses. [They
assumed] that the photographer would
never find out. Of course, they could have
bought unlimited-use licenses, but those
would be much more expensive.
Q: How much more expensive?
A: The licenses that typically were issued
were $200 to $400. So a pretty small
amount. Unfortunately for the publishers,
the Copyright Act has some teeth in it. The
publishers always say, “OK, you got us. Let’s
just pay you the license fee that we would
have paid if we had been honest from the
beginning.” But the Copyright Act figures
if that’s the rule then there would be no
incentive to respect the copyright law. It
would be like the shoplifter who, when he
gets caught, just has to pay for what they
found in his pockets. So if the image is
registered prior to the infringement and the
infringement is willful, the range of damages
is up to $150,000. Very substantial awards.
For images that aren’t registered prior
to infringement, it’s a little trickier. The
Copyright Act says you get the license fee
that should have been paid, but you also
get disgorgement of the infringer’s profits
from the unauthorized use. That carries with
it significant exposure if the books that the
unauthorized images appear in are profitable.
Our cases mostly involve textbooks, and
textbooks—as people have been complaining
for a long time—are extremely profitable.
Q: Who else do you sue besides publishers?
A: We’ve had cases against companies that
have used our clients’ images for advertising
purposes: a vodka company, a refrigeration
Q: What about ordinary websites?
A: The difficulty people have in recovering
damages [from] mom-and-pop websites is
significant. If the image isn’t registered prior
to the infringement, it’s very difficult to bring
a case in federal court given, No. 1, the likely
recovery, and No. 2, the frequent inability of the
defendant to satisfy judgment. That remains a
continuing problem in the copyright area.