Unlimited License (to Sue)

IP attorney Christopher Seidman protects artists in the digital age

Published in 2016 Colorado Super Lawyers — April 2016

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 gasket company.

 

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.

 

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 repeat offenders.

 

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 of people I would otherwise not have occasion to rub shoulders with. So, I enjoy that portal into a different world.

 

Q: Are there other firms that do this type of work?

A: One other firm in New York is really the only other one we know of. Small, two-lawyer firm: Nelson & McCulloch.

 

Q: You work two different practice areas with two different firms. Copyright law with Harmon & Seidman and workers’ comp with Withers Seidman Rice & Mueller. How much time is devoted to each?

A: My time is primarily devoted to [copyright infringement].

 

Q: You mentioned an appreciation for the underdog earlier. Is that how you got into workers’ comp, too?

A: Yep. The same mentality applied back in 1981. An interesting contrast: the workers’ comp practice is, by its very nature, a local practice; our clients are all within 100 miles. The copyright practice is just the opposite. We have no clients that are local. Our clients are mostly in New York, California, Arizona, Philadelphia and Chicago.

[For my copyright practice at Harmon & Seidman] we have five other attorneys working for us in different places: California, Wyoming, Colorado and Pennsylvania. We have a virtual practice. We communicate every day by video and messaging, and we share our files through the cloud and that sort of thing. The bricks-and-mortar office is located here in Grand Junction, but the attorneys are scattered.

 

Q: You also mentioned Jay Maisel. Your website includes a glowing quote from him.

A: He’s kind of the dean of commercial color photography. Actually, one of the interesting things about him is for many years he was the owner of the largest residence in New York City. In the mid-’60s he bought a graffiti-covered bank building in the Bowery when things were quite different [economically]; and so he personally owned this six-story, marble-columned, granite former bank. He had his studio on one floor, a basketball gym on one floor, his apartment on one floor, a gallery on one floor. He just sold it last year. Paid $102,000 for it and then sold it for $55 million.

 

Q: Where did you grow up?

A: Central Illinois. Went to the University of Illinois, then to Harvard Law School.

 

Q: What got you interested in law?

A: I thought I could stay in school and defer what I wanted to do as an occupation for three more years. Everybody said that you could do lots of different things if you went to law school—you didn’t even have to be a lawyer. I went, “Oh, OK.” I preferred being in school, and I had no real specific concept of what being a lawyer would entail. No one in my family was a lawyer. I didn’t know any lawyers, and I certainly didn’t learn about what being a lawyer would be like from going to law school.

 

Q: Because … ?

A: They don’t teach you what practicing law is like. They teach you theoretical legal principles.

 

Q: So when did the law click for you?

A: When I started looking around for a job, I thought the right thing to do—we’re talking about the mid-’70s—would be to represent the downtrodden and the helpless, and being a public defender was a good way to do that. And where better to do that good work than in Colorado, which had, in the mid-’70s, the cachet that California had in the mid-’60s. Not in Denver but instead in some town in the Rockies. So I found there was an opening for the job with the public defender in Montrose, and on the map I looked at, the Rand McNally map, it said that Montrose was at 5,800 feet. I had never been west of the Mississippi, so I figured that had to be in the high Rocky Mountains. I thought Montrose was actually going to be like Telluride or Crested Butte or Aspen. It wasn’t. It turned out to be semi-arid and flat.

But that’s how I got out to Colorado. Then the public defender ran for DA, won, and I went with him from the public defender to the DA’s office. That’s how I got started and got out to Montrose.

 

Q: So you came out to Western Colorado on a counterculture impulse, and soon you were a prosecutor. Big change.

A: That was actually really satisfying. I could be the decision-maker and apply mercy when I thought it was warranted, and not when it wasn’t. It was a tremendous opportunity to feel like you were doing good work. The public defender is always reacting and often not in control of what can happen, but the DA is proactive and mostly in control of what is going to happen.

 

Q: If young people today have a similar counterculture impulse, would you recommend they become prosecutors, so they too can decide who does and doesn’t get prosecuted?

A: Absolutely. I’d also recommend it because one of the things lawyers lack is time in the courtroom, time in front of the jury. And if you do not get that experience early on, you tend never to get it.

 

This interview was edited and condensed.

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