Nov 22, 2006 | Richard Bird | 0 Comments
Rights Managed: Keyword is "Managed"
A buyer licensed the use of an illustration for a specified period of time to promote services on its website and in a brochure. Agreements where rights are limited in time, venue and usage are commonly referred to as “managed rights” licensing.
Three years later: The once, friendly illustrator seems bent on suing her customer for an amount that is 30 times (or more) of the original fee negotiated.
What happened?
This happened: The original agreement expired without action by either party to recognize the timing of expiration or to negotiate a renewal.
The next communication was the threat of a financially catastrophic, copyright infringement lawsuit in U.S. Federal courts. Experience says that such a litigation process could cost as much as 300 times the amount of the original agreement in this case.
The customer communicated freely, immediately and in writing. An offer was immediately made for additional payment to extend the agreement. No offer was accepted. Instead, greater threats of litigation followed.
Does this seem right to anyone?
Why - did the illustrator wait three years before communicating with the buyer?
Why - not simply make a phone call or invoice at the end of the first year?
Why - did this person contact a lawyer, first, rather than simply make a managed and responsible phone call to the buyer to negotiate an extension?
There’s a three-year limitation against which damages can be rewarded in copyright infringement cases. A plaintiff can file anytime, but the limit to damages is 3 years. During that time, the greatest potential for damages is accumulated. Thus, it may be more lucrative for licensors of intellectual properties to manage litigation - and the timing of litigation - rather than extending the original agreement.
It could be no coincidence that the illustrator waited three years.
This scenario is disastrous to both sellers and buyers of managed rights: illustrators, photographers, designers and beyond.
The Keyword is “Managed”
When it comes to licensing of managed rights images, it’s important to recognize the potential for harm should the scope of the original agreement be exceeded by the fault or no-fault of either party. It’s no wonder that $1, royalty-free image stock companies seem to be fluorishing. Even Getty Images recognizes a trend and recently purchased istockphoto.com from its creators.
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