Dear Appy: When to Drop the Lawyer Hammer, Pretending to Be Tony Soprano

Dear Appy: When to Drop the Lawyer Hammer, Pretending to Be Tony Soprano

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KH Asks: Can you explain how you handle copyright infringement across multiple platforms including social media? It seems incredibly easy for a business to steal work and use it for their gain. I noticed on your personal website there are no watermarks. On IG and anything I’ve seen on FB, no watermarks or copyright symbol within the post. Now, I’m guessing you register your work with the Copyright Office but that’s help after the fact and hey, maybe that’s all you do. Maybe you don’t care much about it. I just had to ask. Thank you for your time!

Yes, it is incredibly easy for a business to steal images and it happens to me quite often. I use ImageRights to register my images and search for them on the web. Every week I get an email that shows me where every image of mine on the internet is being used, who is using it, and the likelihood of recovering money from the infringer. Of course I can’t go after a bored teenager in Malaysia but sometimes it turns up some pretty staggering infringements. I don’t litigate through ImageRights but use my own lawyer depending on the jurisdiction of infringement.

When I discover an infringement, my first move is to send a polite email explaining what I have found and asking for payment. I am generally pretty forgiving, unless there are other, more brazen factors at play (willful infringement, intentional deceit, etc).

If they want to pay (it’s usually my normal license fee + a small amount for the inconvenience) then all is well. If they don’t want to pay, well, I go to a lawyer and let them take over.

Every year I register all of my finished images with the copyright office via ImageRights in a batch. Sometimes it takes 2-3 batches to get everything as the limit on batch registration is 750 images per batch. I could do better and do it every 3 months or something but I’m not perfect, so every year it is.

As far as watermarks go, they are a waste of time on a portfolio. I still watermark low-res images if I am sending proofs to a client who may want to license images. I do this in an effort to stop them from taking the images and using them for internal presentations, etc, without paying for them. It is very easy for them to download a 1500px proof and load it into slideshows, presentations, etc, and never pay.

Other than that – yeah, no watermarks ever – they kinda look trashy in public. Just don’t.

IB asks: You recently mentioned using a $100 bill to get access to rooftops to make photos of highrises. Please describe how you bribe the guards. It’s a serious question! What do you say? its the scariest moment of my career usually…

Man, you guys and girls are obsessed with access! Answered a similar one last week. I don’t know, would I call this a bribe? Maybe? Maybe not. Who knows. Anyway, sometimes you need access and the only thing standing between you and the shot is a security guard who really doesn’t give a fark about you or your stupid pictures. So I use every technique possible.

Goes without saying that you should be super nice and always grateful. If the guard can’t get you up, ask for a business card of the building manager at the front desk. Call the building manager. Talk to the security guards in a very friendly, disarming, non-confrontational manner. I will even mention to them that I have $X cash in hand if they can make it happen. Have a COI ready immediately.  Have PPE in the car that you can grab at a moment’s notice. Do it with a smile. Explain your plan in 10 seconds or less.

It’s not like I LITERALLY slip the guy a crisp hundo in a secret handshake a-la Tony Soprano or Saul Goodman. You gotta act like you do this all the time, you’re a total pro, you are dressed the part, you can do it NOW or come back another time, etc. I honestly don’t think there has ever been a project that I needed to photograph where I couldn’t get on the roof or into an adjacent building to make it happen. Yes, even in NYC. Even in San Francisco – for cryin’ out loud I got on the roof of a Google building a few years ago to make pictures in San Francisco.  I got on the private rooftop deck of DocuSign – yes, there was paperwork involved 😉 There is no place with tighter security than SF tech companies, but it can be done.

Sometimes things happen immediately, and sometimes you need to massage for weeks. Client, if they want the shot from that spot, should also pitch in and help out – as they may have connections through their building owner/manager, who can call neighboring building managers, owners, etc. All it takes is knowing ONE right person to get you in – and that’s how I stay positive about it. There are still plenty of good people out there willing to help.

M asks: I keep getting requests for discounts whenever I send out my rates to potential clients and was wondering how you handle such requests considering the rates are well calculated and have no room for allowing discounts.

My discount policy is this:

No discounts. It’s not because there’s no margin for discounts (there is plenty of margin, come on) but it’s about respect. I’ve spent years (a decade now) working damn near every day to get as good as I can at this craft, and yes, I do feel slightly disrespected when I’m asked to give a discount. I try not to take it personally but it’s hard some days – so I’ve created some rules for myself. These rules are designed to:

– Make my life easier
– Ensure I only work for people who respect what I bring to the table enough to pay full price for it

And those rules are:
1) Full price, or entirely free. And if I’m shooting it for free…
2) I want full control, and the “client” can then license the images after the fact if they like them. 

Yes, there are some things that are cool enough or would help my career enough for me to do it for free. But if that’s the case – I want to be in charge. I don’t want someone breathing down my neck for a low rate, because that’s just going to make me bitter that they are controlling how I create something that I’m not getting paid the full rate for. I’ve done this for long enough that working for cheap just doesn’t excite me anymore.

This isn’t to say I don’t negotiate – there are plenty of times I negotiate. I can negotiate by adding/removing days, delivering less/more pictures, being more/less restrictive on licensing, etc. I’m just not going to say “sure, I’ll do that for 40% off just because I’m a nice guy who needs money”

Not happening!

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About Mike Kelley
Mike Kelley is an architecture and interiors photographer who has photographed projects all over the world. He is a self proclaimed airplane food enthusiast and the founder of the Architectural Photography Almanac.