I called my friend Jess Hoffman, it's not her last name anymore, that's her old name. Her name is Jessica, gosh. You know what? No. I'm sorry Jess and Max. I've officiated your wedding so I should definitely know your last name as I married you.
I was focused on other things that day like remembering the entire little speech that I wrote. It's like Miller Max Med, something like that. Anyway, doesn't matter. Jess is amazing. She's a fantastic lawyer and specializes a lot in contracts and usage and things like trademarks and things like this. I asked Jess, what do you do? First thing was, you don't necessarily want to start super-aggressive. Yes, that brand is in the wrong.
There is no situation in which a brand should be using your likeness in an advertisement without your permission written in a contract, 100%, there's no excuse for it. You want to first send a cease-and-desist and say, "Hey, you're using my image. This is a problem. I need you to take this down immediately." I think that for me, I would treat digital ads differently than something in print.
I think if it shows up in an Instagram ad, that sucks but it's harder for you to do anything other than say, "Hey, take this down." Look, if you don't start in really hard on the brand and you don't come in being like, "I'm going to sue your ass, like strap in." I do think you can use it to say, "Hey, obvious you guys like this image, would you be interested in buying it from me." We talked a little bit about usage rights and a few shows ago I think a good metric is for 60 days of usage, half of what you would charge for a sponsored post.
Maybe in good faith, they'll tell you how long they were running the ad and maybe they'll back pay you for it. You can use it as a sales opportunity to say, "Hey, obviously you enjoy my likeness, you like my photos, how about we work together? How about you buy this photo? How about we work together in a future sponsored post?" That's why I would say don't go in hard, to begin with, you have the law on your side so you don't have to be really aggressive in the beginning because you will always win the argument if it came to court.
They're going to take the digital ad down and I think it's harder to claim damages on a digital ad just because you'd have to see exactly how much spending they put behind it, how long has it been out in the world, blah, blah, blah. I wouldn't be as concerned, personally. Now, let's talk about print. The problem with print is if they put something in print and it goes out to half a million people, they can't take those magazines back, they can't. That's already out there, and they should have paid you and there's no way for you to get that money back.
In that case, I would again send them a letter and I would absolutely push for money. I had a friend who a magazine, not even a very big magazine, used his image. He's a photographer and he had uploaded one of his images in Google connected to a restaurant, like he was the user photo in a Google search result for a restaurant and a magazine, fairly large food magazine, wrote a little blurb on that restaurant and used his photo without crediting him. I think he got $15,000 from them. This was a national magazine.
If somebody is using your likeness of your photo in print without your permission, there are very clear standard usage rights that say how long they use it, how big the circulation is and it's pretty easy to find what that would cost for them to buy it and I think you're absolutely in the right to push them to pay you for what they would have had to pay you had they used the image in the correct way which was reaching out and buying it from you.
That was Jess' advice and I tend to agree that I think there's this idea sometimes that when you're wronged and you're trying to get what you want, that being really angry is the way to get it done. There are certainly times where passionate disagreement or a little bit of anger can help move your cause along. I generally find again this is a small industry that giving people the benefit of the doubt and going into it assuming it was just a mistake and it was not because they were trying to screw you over is the right way to go about it.
Because again, end of the day, if you want to keep pushing it, you've got the law on your side and there's nothing they can do about it so you at least give them the opportunity to do the right thing before ranting and raving and turning it into a tense situation before it needs to be because the one thing that-- especially a bigger brand has that you don't is that they can exhaust their legal team and they can pay legal fees much bigger than you can.
If it's a bigger amount of money that you're fighting for these companies can throw a bunch of lawyers at it and can outgun you or you could be in a position where you're paying thousands or tens of thousands of dollars in legal fees which is just not a situation you want to be in. I find if you give people the opportunity to do the right thing sometimes they surprise you, sometimes they don't.
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