Why You Should Consider Negotiating With Infringers

As a creative professional, protecting your intellectual property is key to staying successful. So when someone infringes your copyright, what do you do? Sure, your immediate instinct may be to fight back. There’s always a little bit of ego involved… after all, someone just ripped off your work! But as I often tell clients, if someone is already using your work, you might as well get paid for it. Negotiating with your infringer could be a more fruitful avenue. Here’s why.

1. It’s Quicker and Less Expensive Than Litigation

It’s unfortunate to say that our current judicial system in the U.S. is not really designed for the non-rich. Lawsuits are expensive and time consuming, and more than that, they can take up an awful lot of emotional real estate in your life. Copyright infringement claims can often drag on for months (federal courts are notoriously over-scheduled). On the other hand, negotiating directly with your infringer can resolve the situation quickly and privately. You can circumvent court fees, discovery costs, and time spent in front of a judge in a fraction of the time and cost. Recently, a client asked me to represent his business in a negotiation between them and a competing business that infringed his work. That negotiation took four weeks, with the bulk of that time spent drafting and revising a settlement agreement (and it was over a holiday weekend to boot).

2. You Can Get More Than Just Money

Of course you want to get paid. Financial redress is usually the goal when someone infringes your work, but negotiating with your infringer can also open the door to other valuable outcomes such as credit, promotion, and exposure. While I rarely - if ever - counsel clients to take work just for the recognition, there’s no denying that it can still be a valuable by-product of a negotiated deal, especially if your infringer has a large platform or following. If someone has more leverage in the marketplace than you, there’s some value to using that leverage to your advantage. Negotiating could be the trick to get you there.

3. It Could Lead to Long Term Success

More than that, you never know when a copyright infringement might turn into a useful business opportunity. Far from just dealing with this one instance of infringement, negotiating gives you a chance to foster a collaborative relationship that can actually pay off down the road. In almost 12 years of practicing law, I’ve only come across a handful of instances where a client’s work was infringed purposefully. It’s almost always the case that infringement happens negligently (that is, because of the vagaries of the internet, the infringer doesn’t always realize they’re infringing someone else’s work). Understanding this fact can help you turn an adversary into a collaborator. And that can pay off long term with additional work, licensing, and promotional opportunities.

I know, it’s a cliche to say that you catch more flies with honey than with vinegar, but it’s true, and I’ve seen it first-hand again and again. A kind word and an olive branch often takes you farther in business than aggression, even if the latter is more emotionally satisfying in the moment. That isn’t to say there’s no time or place for litigation. Sometimes negotiations fail, or it turns out your infringer was acting in bad faith all along and is happy to screw you over. In those situations, you may have no recourse but to threaten legal action and let the lawyers handle it. But remember, your ultimate goal here isn’t to just defend your rights, it’s to build a lasting career in a creative space. And that means seizing every opportunity to profit from your own hard work, even if sometimes you’d rather just fight.