More great legal insights from Cheryl - thanks & keep them coming!
The answer is: “Not much.” Visual and graphic artists are particularly vulnerable to unauthorized reproduction of copyrighted images on the Internet. It’s literally a simple “right click,” “copy,” and “paste.” Many such infringements go undetected. Those that are discovered are often let go without remedial action. Why? The artist fails to register his or her work with the U.S. Copyright Office prior to the work being stolen. For years, I’ve been asked: “Can’t I just mail it to myself?” In the case of scripts, “Isn’t the Writers Guild enough?” Then I hear, “I never got around to it.” My answer is, “Sorry, there’s not much I can do to help you.”
NO, NO and—NO! There is one place, and one only, to register your works, www.copyright.gov. Instead of sending in your registration by mail and waiting for years, the Copyright Office has come into the digital age so you can digitally upload the files. So why wait?
Exactly why is registration so darn important? While a copyright is valid without registration, the very statement is misleading. Copyright registration is essential to preserve key remedies for infringement. Unless registered prior to infringement, attorney’s fees and statutory damages are not available. It is often difficult, if not impossible, to prove actual damages or profits attributable to theft of a copyrighted work. For example, if the work is used on a product that doesn’t sell millions of copies, how do you prove your damages?
Congress created two types of damages to recover under copyright law. In addition to “actual damages,” one can elect statutory damages without proof of out of pocket losses. This means not only will the infringer have to pay you up to $150,000 per willful act of infringement (the amount is discretionary with the court) they will need to pay your lawyer’s fees. However, your work must have been registered prior to the theft or these remedies are lost. Without the threat of having to pay attorney’s fees to the copyright owner, there is little, if any, chance of finding counsel to bring a costly and drawn out infringement action on a speculative basis.
Legally, you are entitled to obtain an injunction to prevent ongoing or future infringements even if you file the registration after the infringement. A preliminary injunction in a copyright case can cost six figures and above in legal fees. Just ask Perfect 10 who spent a fortune in litigation costs against Google for the past five years. The company was p.o.’d at the search engine for providing thousands of its modeling images as thumbnail versions and for providing links to infringing sites.
If you don’t register, you won’t be getting any statutory damages or lawyer’s fees from the defendant. Unless you can finance the case out of your own pocket, this is one lawyer who can’t afford to help you. Do your selves a big favor—take care of this simple but all important part of your business. Register your works—someday you may be glad you did!
Thank you for allowing me to post this on my blog for the benefit of the artists here!
To learn more about Cheryl, visit her blog, www.BrandAideBlog.com. Maybe you'll consider giving her a call the next time you need help with a contract, infringement or other legal issue... she knows our business which in the words of MasterCard, is PRICELESS!
Here's to your creative success (and figuring out the ever-changing online copyright registration process!) –
This is another guest blog post by attorney Cheryl Hodgson, one of the Art Licensing Info experts and Ask Call participants.
While a copyright is valid without registration, the very statement is misleading. Copyright registration is essential to preserve key remedies for infringement. Unless registered prior to infringement, attorney’s fees and statutory damages are not available. It is often difficult, if not impossible, to prove actual damages or profits attributable to theft of a copyrighted work. Moreover, without the threat of having to pay attorney’s fees to the copyright owner, there is little, if any, chance of finding counsel to bring a costly and drawn out infringement action on a speculative basis. Establishing a strong brand identity for a particular character or product line can serve as an added source of protection and increase the value of the Intellectual Property beyond mere copyright.
An artist’s name, as well as names and logos for particular product lines, can also be protected as trademarks for the goods on which they are licensed. For example, characters from Star Wars have been on bedding, toys, and just about everything else. While the artistic expression of a character remains protectible by copyright, registration of the character and/or its name on the various products as a trademark has been a strategy of film studios for many years. The character becomes part of the “branded entertainment” package that not only brings in additional revenues but helps create wide spread exposure and recognition of the character as a trademark.
Trade Dress protection offers tremendous opportunities to expand IP protection beyond copyright, especially where artists develop a unique use of color combinations and/or designs which become identified with them. Developing protectible trade dress requires advance planning since use must be more than “just another pretty picture.”
Product packaging and designs, including color combinations and artistic images, can function as trade dress, provided they are not used in a merely ornamental manner. To be an inherently distinctive aspect of trade dress, a design should “come out into the spotlight of real trademark significance” and ‘hit the buyer in the eye.” See 1 J.T. McCarthy, McCarthy on Trademarks and Unfair Competition §7:28 (4th ed. 2000). “Use of distinctive design elements must be in a manner so unusual, unique, or unexpected as to be “automatically perceived by customers as an indicator of origin – a trademark.” Id. §8:13. One case example was the use of a rose design as background on a CLARINS product packaging. Registration of the rose background was refused since use was only as decorative background, not as a mark signifying the source of the products.
With proper counsel, visual artists could well do both, namely maintaining the artist aspect of the use, but also creating an additional use consistent across many design groups that come to signify the artist’s work.
Here's to your creative and defendable success!
– Tara Reed
P.S. Subscribe to or read Cheryl's blog to get even more great legal insights - www.BrandAideBlog.com
P.P.S. To register your art with the Library of Congress, start at www.copyright.gov
The following blog post has been re-printed with the permission of the author, attorney Cheryl Hodgson who has done two great "Ask" calls, the most recent on January 20, 2010. Read on to get some interesting food for thought about trademarks.
“Aha moment.” What do you think of when you hear that phrase? Or should I ask who do you think of? Oprah Winfrey would like it to be her! However, after her recent settlement with Mutual of Omaha insurance company, she might not be the only one that can use the popular phrase.
Oprah’s production company, Harpo Productions, had originally claimed that “aha moment” was a trademark from her television show. At oprah.com, you will find numerous videos showing the “aha moments” of various celebrity guests. Some of those moments include, “finding a different kind of happiness, learning to prioritize, and the courage to do something new.”
Harpo learned that Mutual of Omaha was using the slogan “official sponsor of the aha moment,” and sent them a letter asking them to stop use. Omaha responded by filing a lawsuit in the U.S. District Court in Omaha arguing that they had already been granted preliminary approval of a federal trademark for the slogan.
Harpo had previously applied for trademark protection of “aha moments” in entertainment services and in magazines, while Omaha applied to register “Proud sponsor of life’s aha moments,” “Official sponsor of life’s aha moments,” and “Celebrating life’s aha moments” in the insurance industry.
In doing a Google search, I found that Omaha also owns the domain <ahamoment.com> where they describe “A moment of clarity, the aha moment is a defining moment where you gain real wisdom—wisdom you can use to change your life.”
Even though Oprah had made the mark famous, Omaha alleged that she failed to police the mark and there was no opposition to its trademark application. The case was settled out of court. This story can be your “aha moment” in brand protection. I’ve written much about the importance of developing and maintaining a trademark monitoring program. Read our earlier post: http://brandaideblog.com. Enforcement means having a watch program in place to monitor new filings and counsel to give prompt notice of potential conflicts. Failure to police can mean complete loss of rights.
This all might not even matter much longer anyway, now that Oprah has officially announced her talk show will end September 9, 2011. Aha…
For more information on the importance of policing and monitoring your trademarks in the digital age, sign up for our blog and we’ll send you a free chapter from the Guide to Building and Protecting a Valuable Brand on the Internet, based upon the INSURE™ Brand Protect Sequence.
The lesson I learned? If you register a trademark, you better watch and enforce your rights because the "You Snooze, You Lose" rule applies!
Learn more about and from Cheryl Hodgson on her blog at www.BrandAideBlog.com. Watch for new art licensing information products from her in the near future!
– Tara
P.S. Get your free copy of Cheryl's first "Art Licensing Info Monthly Ask Call" July 2009 mp3 replay if you haven't already. The January 20, 2010 audio replay (1 hour long) is available for $15 thru 1/31 and $25 after that.
I don't know about you but the Monthly Ask Calls just energize me! Even if I have had a less than spectacular day, by the time I am done talking art licensing for an hour, I'm smiling and raring to go!
The January 20, 2010 call with attorney Cheryl Hodgson was no exception. I've known Cheryl for a year now and find her to be a source of upbeat energy and sage advice. She can put legal issues into terms anyone can understand and isn't afraid to be practical when sharing her opinions. (Any attorney that says it isn't always the best choice to sue or go to court is ok in my book.)
If you missed the live call, here is what we covered:
Is it ok to use licensee logos for links on my website or should I get permission first?
If I create art as a person (outside of my business), but then want to license it via my business, how do I set that up?
Do I need to move my business license each time I move to a different state?
We have a licensee that hasn't provided reports and after a year claims there is no revenue. Is there a way to handle this properly without exorbitant legal fees, or should we just walk away?
What if anything can I do about a company who has blatantly copied a design of mine and is selling it if I haven't registered it with the Library of Congress?
How do you work with multiple manufacturers in the same category without getting into conflicts of interest?
I've recently been told that because I do different kinds of art - I should use a pseudonym (like a stage name) to differentiate my styles. What are the legal ramifications of this?
Several questions and more details about how to register groups of art in a single submission to the Library of Congress to save time and money.
So whether you were on the live call or not, you just might want to invest in the mp3 replay and make sure you didn't miss anything. The audio is available and a mere $15 through 1/31. The cost goes up to $25 on 2/1. (Still a great deal!) Click the button below and get your copy today!
Here's to your creative and legally savvy success!
– Tara
P.S. Next up... www.AskAboutSEOforArtists.com - learn how to get the right traffic to your website so you can concentrate on your creativity.
P.P.S. Don't forget, the winner of the "Art Licensing Story" video contest will be announced on the 2/17 call, when we explain "link love" in more detail. Have you entered yet? CLICK HERE for all the details!
Tomorrow, Wednesday, January 20, 2010, attorney Cheryl Hodgson will be the expert on the Art Licensing Monthly Ask Call. We could tell you listened to the call she did in July 2009 because quite a few of the questions were follow-ups to her information so we will have more 'how-to' details coming your way!
It is too late to have new questions considered but if you haven't registered for a call in the past and didn't receive the reminder email on Monday with the dial in details - head to www.AskCherylHodgson.com to get registered. Simply put "no question", enter your name and email and you'll be all set. You will also receive the link to download the free mp3 replay of Cheryl's July call if you don't have it already!
It will be another great call and it's free if you listen live! The audio replay will be available after the call for $15 through 1/31 and $25 after that. Still the bargain of the century if you've ever priced legal advice.
Let's talk legal issues of art licensing! Hope you can make it...
– Tara
P.S. Have you checked out Cheryl's blog? Lots of great info flowing there... www.BrandAideBlog.com
I'm excited to announce (or remind you) that Attorney Cheryl Hodgson will be joining me for this month's "Art Licensing Monthly Ask Call". She did her first call in July and over 700 people have downloaded the free mp3 full of valuable information. If you didn't get your copy - you will receive a download link when you register for the January call.
These calls are made great by artists like you who submit their questions... so what do you want to know? Are you confused about copyrights, trademarks or art licensing contracts? What to do to protect your work? Think about it, then head to www.AskCherylHodgson.com and give us your thoughts! We will choose 10-15 to answer in the hour - based on overall results and applicability to the most people. (And if we didn't already answer it on the first call of course!)
Cheryl was kind enough to send me a really cool and artsy Christmas gift - so watch my video thank you and learn a little bit more about her. Hope you can join us on January 20th!
Posted by Tara Reed on Dec 23, 2009 in Art Licensing
I've been struggling with how to keep you posted, quickly & easily, about what is coming up. Of course there is the blog but it changes a few times a week. Ditto Facebook.
The logical choice seemed to be the website, but how?
One day this week when I wasn't artistically inspired I think I came up with a plan. The home page at www.ArtLicensingInfo.com now has a bulletin board! This will have time-sensitive, upcoming or new events and products listed. It will help you keep track of who is doing the monthly Ask Call and where to sign up for details. (I'll also work on a master "Ask Call" email list to cut down on the confusion we had in December.)
So... this doesn't need to be a long drawn out post. It's just an "FYI" - if you want to see if what is coming, go to the main website and check the board. K? Hope this helps!
Posted by Tara Reed on Dec 18, 2009 in Art Licensing
What a year 2009 has been! When I went to make this little video greeting, the amount of exciting things that have happened this year really hit me!
Four new experts came on board - thank you Paul Brent, Cheryl Hodgson, Jill Seale and Suzanne Cruise! The monthly Ask Call Series has been very well received and a lot of fun to share and learn. (How else would I get nationwide weather reports from the people who really know?)
We are working on lots of great new projects for 2010 so stay tuned, but for now... here's to you!
While sitting in the food area of BlogWorld in October, fighting overwhelm and trying to decide what I was going to do next, this nice young man in a well designed t-shirt sat down with me. Being shy as I am (not!) I commented on his t-shirt and asked what he did...
He explained that he worked for this company called "Apture" that has a free plug-in for blogs and did I have a minute to see what it could do? (He also gave me a t-shirt - sweet! My 16 year old son is also a fan and now spreads the word through the halls of his high school.)
Posted by Tara Reed on Nov 26, 2009 in inspiration
Today is Thanksgiving in the United States. What better day than today to reflect on all that we have to be grateful for in our lives?
I found this great quote which has inspired this post:
At times our own light goes out and is rekindled by a spark from another person.
Each of us has cause to think with deep gratitude of those who have lighted the flame within us.
– Albert Schweitzer
Sure, it is easy to let the speed bumps get us upset and out-of-wack, for the little disruptions to consume way more energy than they deserve. At times like that, as well as days like this, I like to sit down with a pen and paper and write (or in this case type and blog) about all the wonderful things I have in my life to be grateful for.
Here is a list of things that come to mind - in no particular order and in no way all-inclusive - but simply what is flowing to the typewriter as I think, reflect and focus on all the good things in my life.
my son & my significant other, Craig (These two men do so much to keep the joy and meaning in my life, without them things would be very different so I am thankful every day for their love, humor and support.)
my family & friends (supportive, fun and tolerant of my sometimes 'quirky artistic temperament')
my health, creativity and thirst for knowledge (without these things my life would be much more boring! Maybe less busy and hectic some days... but I wouldn't trade it for lack of inspiration!)
my business - the art and the teaching/sharing sides (being able to license my art and all that that entails, as well as having an outlet to share what I know and what I am learning, feeds my soul.)
the artists who read this blog, connect, learn and share on so many levels (without you, I'd be writing into the void - it is so good to know that I'm not!)
the artists and industry experts who have become a piece of the ever growing "Art Licensing Info" family. Never would I have guessed that the site would evolve the way it has and for what it is and what it is becoming, I am grateful. We all work with this question at the forefront of our creative process: "What would we have wanted to know at different stages of learning about how to license our art?" Thank you Paul Brent, Jill Seale, Cheryl Hodgson and Suzanne Cruise...
my home and life in Portland, Oregon. (I am here by choice and love all that the Northwest has to offer!)
the internet! 10 years ago all that we are doing and the ways that we are connecting didn't exist. Even a year and a half ago I couldn't see how all these pieces would fit into my life. But today I am thankful for Twitter, Facebook, LinkedIn, YouTube, the forum, blogs, email and more!
I hope you take the time to focus on what is really important to you and all the things you have to be grateful for as well.
