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!) –