What legal questions do you have related to your art licensing business?
The next Art Licensing Ask Call is with attorney Kyle-Beth Hilfer on Wednesday, January 25, 2012. It sounds so far away but I promise you – it is going to sneak up on us! I was talking with Kyle-Beth today and we were discussing the types of topics we’d love to cover… but as you know, it is YOUR questions that determine the content.
Here are two broad topics we thought would be relevant and interesting.
Social Media – any questions about best practices, what to do if someone is using your art or info without permission, what is considered “fair use”, etc?
How about contracts? What do you want to know about art licensing contracts – any terms have you confused, things you want to know about including or if it’s safe to exclude?
Of course if you have questions about copyright law, registration procedures, trademarks, etc. send those our way too!
When you have a great topic for the next legal Art Licensing Info Ask Call – head to www.AskAboutArtLicensing.com and send it our way!
Here’s to your creative – and legally protected – success!
– Tara Reed
P.S. Don’t forget we have a new book with LOTS of info about contracts, check out How to Understand Art Licensing Contracts
In this artist’s opinion, copying IS theft
After the post last week about “inspiration” and copyright infringement, a YouTube video called “Copying is not Theft” was brought to my attention.
The video contends that “copying just means there is more to go around, one for you and one for me”. I respectfully DISAGREE!
The comments are equally as upsetting – here are a few:
Copying physical products I think is the only time there is something wrong with it, because it’s stealing profit from the inventor. It’s deliberate misleading of customers who actually pay for physical objects. However copying something in the software world is positive for companies. Why? because if you made a copy of it, I say 99% of you were never going buy it anyways. Never Ever. So the only thing that was gained, was popularity of the company, attracting people who will pay for it.
I disagree. People stealing software doesn’t attract new customers. There is a definite break in logic to help justify this person’s actions.
This person agrees with me and replied to the above comment:
Are you saying that anyone who writes code is essentially a slave to the world, and deserves no compensation for what they make? What you’re talking about is just a way to confuse appropriation and inspiration with excuses for piracy.
This person just confuses the heck out of me and I question the education system in whatever country they live in…
you cant steal code, only copy it – that’s what the video is trying to say
Part of the reason there is so much innovation in the United States is because we DO have intellectual property law.
Why would you want to spend your time and energy creating software, systems or ART if it was considered perfectly fine for people to copy it? Just because it doesn’t fit in a box doesn’t mean it has no value. I make a living with my art and the pixels created with it (all of our art is digital before it lands on a product that fits in a box) – and I’D APPRECIATE IT if my hard work and effort wasn’t demeaned and devalued.
One lesson I’ve re-learned from this is that many people think that just because they see something on YouTube that it’s true. Anyone can post anything on YouTube. Or on a blog. Or anywhere.
The link to this video was actually tweeted by an artist. An artist interested in art licensing. This really leaves me scratching my head because it goes against the whole concept of licensing. Our contracts often include that we register our work with the Library of Congress and that we will enforce the protection or at least assist if the manufacturer wants to go after an infringer. If you really believe that copying is ok, I’m thinking this isn’t the business for you.
SO… I leave it to you to weigh in. What do you think?
– Tara Reed
Cheryl Hodgson once again provided valuable insights into the legal issues surrounding art licensing
Once again, great questions were asked and helpful answers were given by Attorney Cheryl Hodgson. Last night Cheryl was my guest for the third time as part of the Art Licensing Info Monthly Ask Call Series – we had some technical excitement (something about Comcast and the conference call service switches maybe?) but I edited out as much of that as possible.
Here is what we covered:
- Should I make my company an LLC?
- How do business DBA’s work if I already have an LLC?
- How can I protect a product design concept that I might submit to a company with art?
- How to respond to Trademark infringement concerns.
- How do we determine if we can use what seem to be common sayings in our art, without having trademark issues?
- How do you protect your tagline?
- If we register copyrights in groups, does it limit our protection?
- What recourse do I have if I see something created commercially that looks a lot like an image I posted to my website?
- What are the rules about using paintings of private homes for commercial use?
- Should we add copyright watermarks to everything we post to the internet?
- Do I have to re-copyright art if a company slightly modifies previously registered work? Say color or layout changes?
- Can I still copyright my designs if I’ve posted them on my blog or printed them on cards?
- What should you do if you find out your images have been copied?
- Do you recommend artists audit licensee accounting records regularly?
If you want a copy of the audio replay, it is $15 through 8/28 and $25 thereafter. We appreciate your support in purchasing these calls – it helps us continue to attract and create the great content artists have come to love and expect each and every month!
What’s coming up next…
Wednesday, September 15, 2010 – NEW EXPERT Dena Fishbein will be answering your questions. Head to www.AskDenaDesigns.com to learn why I’m so excited to have Dena join the ranks of Ask Call Expert.
Wednesday, October 20, 2010: www.AskPaulBrent.com
In addition to answering questions from artists, Paul Brent will discuss how to plan your art collections for a trade show. Planning your collections, pacing yourself to get the work done and designing for trends for the new year.
Here’s to your creative success!
– Tara Reed
P.S. Learn more about Cheryl Hodgson on her blog at www.BrandAideBlog.com – be sure to sign up for her ezine to continue to build your legal savvy muscle!
The August Ask Call will Answer your Legal Questions about Art Licensing
Just a quick reminder that attorney Cheryl Hodgson will be answering the questions submitted by artists like you tonight. If you’ve signed up for a call before, you should have received the dial-in details by email.
If you’ve never participated, head over to www.AskCherylHodgson.com and sign up. Since we have already organized the questions, you can just put “no question” in the box then fill in your name and email and you will get the dial-in details.
The call is at 5:30 pm Pacific / 8:30 pm Eastern and will last for an hour. It’s free to listen live. The audio replay will be available Thursday and cost $15 through 8/28 and $25 thereafter.
We will be covering copyright registration and enforcement questions, pros and cons of business forms (LLC, Corp, etc), trademark questions, contract questions and more.
I look forward to chatting with you tonight!
– Tara Reed
P.S. Don’t forget! Let’s get social on Twitter (use #ask when tweeting so we can find you!) and Facebook during the call. CLICK HERE to download all the details.
FYI – Online Copyright Registration System Upgrades mean Down Time for Submissions – plan ahead!
Yesterday I got organized and registered a batch of art with the Library of Congress. As I logged in, I saw a big red warning about system upgrades and downtime and thought I’d pass it along to all of you.
The Copyright Office is engaged in a major project to upgrade the software application that drives eService. System testing and implementation of the new software will occur over three upcoming weekends, resulting in periods during which eService will be offline. The testing and upgrade schedule is as follows:
I hope you have some system in place to regularly submit your art to the Library of Congress. Without registering your work, you are limiting your ability to defend your work against theft and unlawful use. Submitting your art to online sites that say they will confirm your deposit if there is a problem isn’t good enough. The only way to protect your work is through the US Library of Congress.
If you register online, the cost is $35 per registration and you will get your paperwork back much faster than mailing in your submissions – which costs $45 – so slower and more expensive. Do you think they want artists to embrace technology?
Attorney Cheryl Hodgson has talked about a variety of copyright related issues in her Ask Calls. If you have never heard her, go download her first call audio replay for free at www.ArtLicensingInfo.com/audio-archives.html#CherylHodgsonJuly09FreeAudio
Cheryl’s January call replay is available for $25 at www.ArtLicensingInfo.com/audio-archives.html#CherylHodgsonJan2010Audio – try getting legal advice of any help for only $25. 
Cheryl will be answering more of your legal questions, copyright or otherwise, on Wednesday, August 18, 2010.
To submit your question for consideration, go to www.AskCherylHodgson.com today.
The call is free if you listen live and the replay will be available for a small fee after the call.
Protect your creative genius – register copyrights and learn the legal aspects of licensing. Here’s to your creative success!
– Tara Reed
Be Heard: to keep copyright protections, it’s time for each of us to take action!
Copyright laws may change – NOW is the time to be heard. Take a minute, read this post and send an email.
Below is a notice from the Copyright Alliance – please read it and send emails by March 24th – this is IMPORTANT and can directly affect each of us personally if changes are made. Since they offer a “forward to a friend” link, I decided I’d forward to all my blog friends in one fell swoop! To see the original letter, go here: http://budurl.com/ynah
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BACKGROUND:
Last year President Obama appointed and the U.S. Senate confirmed Victoria Espinel to be the first U.S. Intellectual Property Enforcement Coordinator. Her job is “to help protect the creativity of the American public” by coordinating with all the federal agencies that fight the infringement of intellectual property, which includes creating and selling counterfeit goods; pirating video games, music, and books; and infringing upon the many other creative works that are produced by artists in this country.
As you know, the unauthorized copying, sale, and distribution of artists’ intellectual property directly impact the ability of artists and creators to control the use of their own creativity, not to mention their ability to receive income they have earned from their labor. This impacts U.S. employment and the economy, and our ability to globally compete.
As required by an Act of Congress (The PRO-IP Act of 2008), Ms. Espinel and her White House team are preparing a Joint Strategic Plan that will include YOUR FEEDBACK on the costs and risks that intellectual property infringement has on the American public.
Here’s how to make yourself heard!
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1. Send an email to Ms. Espinel and the Obama Administration: intellectualproperty@omb.eop.gov and copy the Copyright Alliance on your email: info@copyrightalliance.org
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2. Begin your letter with “The Copyright Alliance has informed me of this welcome invitation from the Obama Administration to share my thoughts on my rights as a creator.”
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3. Include in your email: your story, why intellectual property rights are important to you, how piracy and infringement affect you, and what the U.S. government can do to better protect the rights of creative Americans.
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4. Also include in your email: your name, city, state, and what type of artist you are.
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5. DO NOT include any personal or private information as all comments will be posted publically on the White House website.
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All comments must be submitted by Wednesday, March 24 by 5:00 p.m. EST. To read the entire call for comments, click here.
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Don’t be shy! Take two minutes today to make your voice heard, and don’t forget to spread the word to everyone you know. Forward this notice using this short URL – http://bit.ly/cjDZJt – by email, MySpace, Facebook, Twitter, and more!
Best,
Lucinda Dugger |
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P.S. If you received this email from a friend, and you are interested in receiving more information about how you can speak up for your rights, sign up for our network of Copyright Advocates.
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PLEASE take action… TODAY!
I just did… – Tara Reed
P.S. Here is what I wrote, feel free to use this as a guide for your email if you’d like.
Dear Ms. Espinel -
The Copyright Alliance has informed me of this welcome invitation from the Obama Administration to share my thoughts on my rights as a creator.
My name is Tara Reed and I am a self-employed artist who makes a living licensing my art to manufacturers for use on products. Without the current or even more stringent copyright laws and penalties for piracy, my livelihood will be impacted. I rely on companies respecting my copyrights and paying me for use – without that, I would be another unemployment statistic.
With the internet and digital nature of business today, it is easier than ever for less-than-reputable companies to steal art and design, sometimes selling it as their stock art to reputable companies. I see it at every trade show I attend – art by myself or my colleagues being used without permission. It is disheartening and expensive to combat. Any changes in the law will make the problem that much more dire.
I urge you to take the creative business owners, who pay taxes and fight to make a living, into account when considering any change to the copyright laws and especially the designation of “Orphaned Works”. Tougher penalties and regulations should be put in place if any changes are being made. While it would be great to believe that people work from a place of honesty and integrity, it is unfortunately not always the case. Let’s not encourage people to cut corners who will do so without any threat of legal or financial ramifications.
Sincerely,
Tara Reed
Portland, Oregon
Licensed Artist
What’s your copyright worth if it’s not registered prior to someone stealing your work? | guest post by Cheryl Hodgson
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!) –
Tara Reed
Branding the Artist: Added Protection to Copyright for Art?
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
More great legal insights for artists from attorney Cheryl Hodgson
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?
- My web site artwork was © in 2005 Now that it’s 2010, should my website say ©2005-2010? Do I need to re-register with the copyright office?
- 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!
We also promised you a link to get the PowerPoint tutorial on how to register copyrights online so here it is…
Learn more about Cheryl and keep up with her blog at www.BrandAideBlog.com
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!
P.P.S.S. Did you hear??? Mary Engelbreit will be the Ask Call expert in March! www.MaryEngelbreit.com/AskME/
January "Ask" Call: Attorney Cheryl Hodgson, Wednesday, January 20, 2010
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!
Here’s to your creative success!
– Tara
P.S. Be sure to check out Cheryl’s blog for lots of interesting branding, copyright, trademark and other legal issues… www.BrandAideBlog.com
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