Negotiation letters - how to be firm yet polite to get what you want.
July 14, 2011 7:21 AM   Subscribe

How to word a letter (email) negotiating compensation I want from an author who sold my copyrighted work? Details inside.

I am a blogger, and now an aspiring small business owner, who has maintained a website featuring original photography in my blog posts for the past few years. Photos that I took (with my camera, and edited, etc.) and posted a few years ago on my website have since been published in a book, which the author self-published and sold through amazon.com for a year until I found out about the theft. A kind stranger on the 'net emailed me about seeing the photos she recognized from my blog in a book she'd ordered. The bad reviews starting pouring in at the amazon.com page for the book, and so the author ceased selling it and took down the amazon listing. She sent me an apologetic email after all the bad reviews were posted about how it was somehow an accident that the photos from my site ended up in her book with no credit given to me. (I know she found the photos at my blog, due to a trail of evidence on Google, and is still claiming all of the content as her own, trying to keep the situation quiet.) She also said in the email that she stopped selling the book, and then offered to compensate me for the photos. This same author has another book out that I suspect contains some of the more recent content and photos published at my website.

Questions:
1. How do I find out how many books she has sold through this self publishing avenue? Could I email amazon, or do I just ask her nicely?

2. How do I figure out how much I should ask for in compensation?

3. How do you, in general, sound polite yet firm in a negotiation letter in which you have the upper hand and are making demands of the of the other party?

Tips for writing such a negotiation letter (the tone, the vocabulary I should use, the details I should include) would be very helpful. Sounding firm, yet nice enough that she'll comply, is proving to be challenging for me. Legal recourse would be a last resort. This has been a heartbreaking and distressing situation for me, so any advice would be appreciated!
posted by anonymous to Work & Money (16 answers total)
 
lawyer lawyer lawyer.

You don't necessarily need to take legal action to require a lawyer. Someone who's familiar with copyright law in your neck of the woods can answer your questions and help you write that letter.
posted by royalsong at 7:26 AM on July 14, 2011 [5 favorites]


Legal recourse would be a last resort.

Please re-consider. If you are seeking compensation and to preserve your ownership rights, please talk to a lawyer. Using the wrong language in a letter could set you back unnecessarily.
posted by ambrosia at 7:27 AM on July 14, 2011 [8 favorites]


Have a lawyer write the letter. It'll show up on law-office stationery ("Dewey, Cheatham & Howe") and often has a larger effect than an email from some guy whose name doesn't end with "Esq."

Copyright infringement is serious business, and although there are likely to be problems with your case (IANYL, TINLA) there are also expensive problems she faces, and if you bring them to her attention in a way that causes her to consult her own lawyer, she is likely to take them more seriously.
posted by spacewrench at 7:29 AM on July 14, 2011 [1 favorite]


This person stole your content and published it, apologized when she got caught, and then most likely did it again? Stop talking to this person and get a lawyer already.
posted by futureisunwritten at 7:30 AM on July 14, 2011 [4 favorites]


Lawyer and watermark your photos today.
posted by Ideefixe at 7:33 AM on July 14, 2011


You guys, let's be real - a small blogger having its copyright infringed by another blogger with a self-published book would probably not have the funds for all the legal fees involved with a copyright infringement lawsuit. It wouldn't be worth it.

Say the author sold a copy hundred copies and you're talking about $5,000 here. Litigation fees wouldn't be worth the amount you'd receive in damages. I don't know how to word such a letter myself, but I'd proceed with what you're doing and search for a template letter of some sort. She sounds like she doesn't want to go the legal route either since she already offered compensation. Good luck.
posted by sunnychef88 at 7:49 AM on July 14, 2011 [1 favorite]


OP might not be able to afford the fees associated with extended copyright litigation, but the cost to hire a lawyer to write this letter is an investment, because it may prevent all that litigation! It's definitely going to be worth the money. Contact your state (?) bar association for a directory. Call small law offices and ask about sliding scales. There are a lot of lawyers who'd be happy to do this small piece of work cheap to establish a good relationship with a budding entrepreneur. (In fact, my business law prof. gave precisely this advice to our class!) If you still don't have luck, contact local law schools and ask about clinics or small offices that farm the students out for legal experience.
posted by motsque at 7:56 AM on July 14, 2011 [1 favorite]


She also said in the email that she stopped selling the book, and then offered to compensate me for the photos.

You may have more success treating this as an attempt to get someone to legally license your photos than an attempt to stop someone from illegally using your photos. Come up with licensing terms that she can agree to which will retroactively apply to the first book (which she could start selling again) and make it clear that you are open to extending the license to any further books. That way you are trying to create a win-win situation, rather than threatening a lawsuit that you can't actually afford and wouldn't result in much money for you anyway. The result of most copyright infringement lawsuits is some sort of licensing agreement, so you can try to skip the whole lawsuit part and try to come to an agreement.
posted by burnmp3s at 7:58 AM on July 14, 2011 [5 favorites]


a small blogger having its copyright infringed by another blogger with a self-published book would probably not have the funds for all the legal fees involved with a copyright infringement lawsuit.

Who said anything about a copyright infringement lawsuit? The very first "get a lawyer" comment in this thread expressly notes "You don't necessarily need to take legal action to require a lawyer."
posted by DevilsAdvocate at 8:26 AM on July 14, 2011 [4 favorites]


Hopefully the OP knows a lawyer personally (try networking with alumni from your university if you're college student or grad, OP!). It's $250 to even talk to one on the phone for a "consultation" in my town, unfortunately.
posted by sunnychef88 at 8:44 AM on July 14, 2011


From the OP:
I discussed the matter with a lawyer already, and he told me to write the email responding to her, with my demands wording in a polite, firm way. He said that using legal means to extract a settlement from her wouldn't be worth the trouble or cost, since she probably didn't sell that many copies and sounds willing to negotiate. I don't want to be associated with the author in any way via a licensing agreement since her work is poorly edited and cut and pasted, and she competes for the same niche market that I work in.
posted by restless_nomad (staff) at 8:53 AM on July 14, 2011


I don't want to be associated with the author in any way via a licensing agreement since her work is poorly edited and cut and pasted, and she competes for the same niche market that I work in.

In that case I would say forget about finding out how many books she sold and focus on getting her to agree to give you an exact dollar amount in compensation and actually send you the money. My guess is that she will either completely ignore you or start backpedaling on her offer to pay you. From her perspective there is really no reason for her to pay you other than to resolve this issue, so focus on the fact that once she pays you will drop it as long as she doesn't use any more of your photos.
posted by burnmp3s at 9:17 AM on July 14, 2011


INYL, TINLA.

Don't do this via email. Use a real paper letter, sent certified mail and request your return receipt so you can prove it was received. If you are going to do this yourself, a good basic format for a demand letter is, in paragraphs:

1. Brief purpose of letter (e.g., offer to settle a legal dispute).
2. Brief summary of facts (e.g., you downloaded copyrighted materials from my blog and, without a license, you published them in a book you sold for profit.)
3. Brief summary of how this entitles you to compensation and the compensation you would seek if you are forced to pursue this.
4. Your more generous offer to settle if she pays n dollars, in full, within some reasonable time period (e.g., 30 days).

These letters are usually 2 or 3 pages, max. (Mine are, anyway.)
posted by Hylas at 9:45 AM on July 14, 2011 [2 favorites]


A similar thing happened to Suzanne McMinn at ChickensInTheRoad.com. If you search back through her archives, you can find the info about one of her goat photos (!) was used in a magazine about goats (!!). She details how she dealt with it, including how she worked out the amount of money she wanted to ask for, which was quite a lot more than the magazine initially offered. In her reasoning she included the fact that issues of the magazine were already out in the world, which would be similar to the books that "author" has already sold.

If you visit that website, you'll also see that this theft of intellectual property has just happened again to Ms. McMinn, and she is currently dealing with a commercial website that lifted her text and photos and used it to sell their items.

So, check it out. And good luck.
posted by BlahLaLa at 9:48 AM on July 14, 2011


I am not yet a lawyer and I don't know enough about your specific situation to give any reliable advice, so I won't give any legal advice -- but I do want to make a general observation. Your position here may be stronger than you realize. In some circumstances, copyright violations are redressable by statutory damages. That means that {the amount she's on the hook for} may be very large, even though both {the value of your photographs} and {her profits from the book} are small.

One approach might be to Google "cease and desist letter copyright", choose a result that mentions statutory damages (they're scary-looking in print -- they can be up to $250,000!) and plug in relevant details. Were I in your shoes, my goal would be to terrify her into sending a relatively small settlement check (and into knocking off future plagiarism).
posted by foursentences at 10:19 AM on July 14, 2011


I would recommend talking to her over the phone or in person. With apologies for the self-promotion, I coach people through negotiations. More info available here. If you'd prefer to research the topic yourself, I'd recommend Getting to Yes.
posted by equipoise at 12:54 PM on July 14, 2011


« Older How far back does my résumé need to go?   |   Help with San Francisco lodging Newer »
This thread is closed to new comments.