Why You Should Consider Negotiating With Infringers — THE LEGAL ARTIST

As a creative professional, protecting your intellectual property rights is key to maintaining success. So what do you do when someone infringes on your copyright? Of course, your first reaction may be to fight back. Always have a little self-awareness… after all, someone copied your work! But as I always tell clients, if someone is already using your work, you might as well get paid for it. Negotiation with the infringer may be a more fruitful approach. Here’s why.

1. Faster and cheaper than litigation

Unfortunately, our current justice system in the United States is not really designed for the non-rich. Lawsuits are expensive and time-consuming, and more importantly, they take up a lot of emotional space in your life. Copyright infringement claims often drag on for months (federal courts are notoriously over-scheduled). On the other hand, negotiating directly with the infringer can resolve the issue quickly and privately. At a fraction of the time and cost, you can avoid court fees, discovery fees, and time spent in front of a judge. Recently, a client asked me to represent his business in negotiations between them and a competing business that was infringing on their work. That negotiation took four weeks, much of which was spent drafting and revising the settlement agreement (and was launched over a holiday weekend).

2. You get more than just money

Of course you want to get paid. Financial compensation is often the goal when someone infringes on your work, but negotiating with the infringer can also open the door to other valuable outcomes, such as credit, promotion, and exposure. While I rarely, if ever, advise clients to accept work solely for recognition, there is no denying that it can still be a valuable byproduct of negotiating a deal, especially if your infringer has a large platform or following who. If someone has more influence in the market than you do, there is some value in using that influence to your advantage. Negotiation may be the secret to achieving this goal.

3. It can lead to long-term success

What’s more, you never know when a copyright infringement may turn into a useful business opportunity. Negotiation goes beyond just dealing with this infringement, it provides you with the opportunity to build a partnership that can really pay off in the future. In my nearly 12 years of practicing law, I have only encountered very few cases where clients’ works have been intentionally infringed. Infringement almost always occurs by omission (i.e., due to the vagaries of the Internet, infringers do not always realize that they are infringing on the work of others). Understanding this fact can help you turn your opponents into collaborators. This can pay off in the long term through additional work, licensing and promotional opportunities.

I know it’s a cliché to say you catch more flies with honey than with vinegar, but it’s true and I’ve seen it firsthand time and time again. A kind word and an olive branch will often get you further in business than aggressive behavior, even if the latter is more emotionally satisfying at the moment. That’s not to say there’s no time or place for litigation. Sometimes negotiations fail, or it turns out that your infringer acted in bad faith all along and was happy to defraud you. In this case, you may have no choice but to threaten legal action and let a lawyer handle it. But remember, your ultimate goal is not just to defend your rights, but to build a lasting career in a creative field. This means taking every opportunity to profit from your hard work, even if there are times when you’d rather fight.