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
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!
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!
