PhotoCrazy Patent Letters: What You Need To Know
A number of photographers and event organizers have received letters from Peter H. Wolf and PhotoCrazy.com informing them that “any photographers performing event photography services in a manner covered by the patent need to be licensed” and that “in some circumstances, those working in association with the photographer, such as an event organizer, may also be found to infringe the patent.” The letters end with an offer to license Mr. Wolf’s patented technology in return for payment of a licensing fee. The letters have confused both photographers and event planners regarding what, if any, action they should take in response to the letter.
The question for every recipient of the letter is: Does the patent cover my photography practices?
Unfortunately, the complexity of patent law and the wide variation in how photographers do business makes it impossible to issue a blanket statement regarding the practices that might constitute an infringement of Mr. Wolf’s patent.
From the language in the patent’s claims (which are the portions of the patent that matter when determining if an activity is an infringement), it would appear that claimed invention applies only to sporting events which feature movement along a course or field and involve numbered participants. It also covers the methods for taking the photographs and associating them with participants and for methods for searching and ordering the photographs.
Clearly if you are in the business of taking photographs of race participants and providing the resulting photos online, you will want to seriously evaluate your exposure. If, however, your activities differ considerably from those described in the Wolf patent, you are likely operating outside of its scope and are therefore probably not liable for infringement.
What Does this Mean to Me?
Like many other business dilemmas, the letter from Mr. Wolf requires every photographer to choose between the certainty of making an immediate payment against the risk of much higher costs in the future. At one extreme, a photographer that has been targeted for enforcement can simply pay Mr. Wolf. This guarantees an immediate expense, but should prevent future litigation as long as you abide by the license terms. At the other extreme, some photographers may elect to simply ignore the letter. While this is an appropriate reaction if there is no question that your business does not infringe on the patent, for others it raises the possibility of incredibly expensive litigation and significant damage awards.
Can I Make This Go Away?
There is nothing illegal in advising photographers of the existence of a patent and offering up a license for the use of the patented process. However, unfounded allegations of patent infringement can be unlawful. Should any unjustified enforcement actions persist and result in damage to a photographer’s business, such activities may amount to an antitrust violation as well as a violation of the Federal Trade Commission Act and its various state equivalents.
If you have additional questions about this issue or any other issue, please contact IAPEP staff. While we cannot provide legal advice or representation, we are happy to share any helpful information that we happen to possess.