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my day in court

Back in 1999 I was hired by online sex toy merchant, xandria.com to come up with a picture of their, um, products to put on a free postcard, to be distributed in cafes, clubs, restaurants an such nationwide. The problem was to show "R"-rated products in a "PG" environment. I'm a people photographer - I don't do product photography, but this was a challenge and a chance for a bit of extra exposure. Anyway, here's what I came up with. (right) It became a huge success - half a million were distributed and it became the most popular card ever distributed by GoCard.

But then xandria ripped me off on another job I was doing for them - they still owe me $10,000 - and I took the precaution of copyrighting the photo used in the postcard. Which later turned out to be Good Thing. . .


A few months later I was reading the San Francsico Bay Guardian when I saw an ad for Good Vibrations (left) - another online sex toy merchant - with a shameless ripoff of my picture. They ran it maybe 100 times in a bunch of publications, SF Weekly, East Bay Express, Pacific Sun, SF Bay Times and many more. Friends would call to congratulate me on selling them the image - alerting me to new infringements weekly. When my lawyer showed them the error of their ways they signed a letter recognising my copyright and promising never to use it again without at least my photo credit. Since they are a woman-owned co-operative, I wasn't looking to hit them for the $150,000 statutory damages they owed me, I just wanted a little respect, and a photo credit.

The ad stopped running for a couple of months. But in November, I saw it in the Bay Guardian again without my photo credit. (!!!) I was less than pleased, to say the least. When my lawyer asked them what was going on, they blamed the Bay Guardian and got them to write a letter claiming they had made a mistake in production. Maybe they had, but the ad kept appearing in subsequent weeks in other publications for months, still without my photo credit. Eventually, they started putting my photo credit in their ads, but by this time I was feeling mightily ripped off and filed suit against them (pdf, 376k). Why should a multi-million dollar business profit by trampling the rights of an independent photographer?

Anyway, finally I got my day in Federal Court and settled the suit "to the agreement of the parties."

So what are the lessons of this tale? Well, the first is that you can protect your work, but you must register it at the Copyright Office (it's easy and fairly cheap) before you can get jackpot damages. Also, you should befriend a competent lawyer. I was lucky enough to know Bill Weiss (415-362-1717). My previous lawyer sucked, so shop around. Also, for potential infringers out there, just because you see a picture on a postcard, billboard, magazine or web site, it doesn't mean you can copy it. Photographers have to eat and pay rent too.