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
great post, thanks Cheryl and Tara !
I wonder about this though… as a photographer, do you need to send EACH and every picture to be copyrighted at the special office ?
I wonder about other countries too.. would like to look into that info.. and how does it work if somebody from the US infringes on Copyrighted art from somebody in the UK ? or Vice Versa ( of which neither country do I live.. )
Thanks again !
Peace and light
EJ
All good questions! I’ll pass them on to Cheryl and see if she wants to write on the topic – always looking to learn what people want to know. Thank you for your feedback!
EJ, yes, you need to send in each photograph if you want a registered copyright for them. You can do so in a batch, though: http://www.copyright.gov/fls/fl124.html
Of course, since you aren’t in the USA, you’ll need to look into the instructions for the relevant country.
The UK and the USA respect each other’s copyrights, unless I’m mistaken. I’m sure there are slight differences in what each country considers a violation and whatnot, especially as the USA gets more draconian about copyright.
Thanks Adam! Not only do you offer lots of great advice and insights on Twitter – but here too! I appreciate it!
It’s tough keeping up with filing copyrights when you have many (hundreds) of images to protect. I keep a spreadsheet of each piece of art, it’s name, size, medium, where it is (who owns it), and the date copyright was filed. That way I know what’s been filed and what hasn’t been.
I have to admit, I’m about a year-1/2 behind on filings! What I’m going to start doing now, to keep it simple, is file one application for all paintings/images created by year. (i.e. all new art for 2009 will be on one application as a collection.) That should cut out a lot of paperwork – I’m just not 100% sure it’s a legal way to do it. Any thoughts on that, Tara?
According to attorney Cheryl Hodgson it is fine to file in groups of art as long as you know what you filed when. Your spreadsheet will be perfect. It gets tricky (I’m discovering) if you then need to file an addition. For example, my fabric company regularly creates new patterns that I need to register later, and if the original art was in a group of things (I started registering quarterly) it gets confusing to describe what is new and what it is from. But that might be more related to how I work and not an issue for many.
You can hear lots of copyright info in the free mp3 from my first Ask Call with Cheryl if you’d like – here’s the link:
http://www.artlicensinginfo.com/audio-archives.html
Just scroll down till you see “FREE” over her face (July 2009 call)
A few years ago I had the good fortune to meet and, for a brief time, work with Raiko Hartman, an award-winning photographer who has an amazing portfolio and a roster of clients that is top notch. His M.S. Photography thesis was on ‘Controlling Legal Ownership of Intellectual Property,’ which he has since self-published. It is my understanding, after attending a lecture and answer session with him, that one can either copyright a piece individually or copyright a body of work. A body of work might be what you have done over a period of time, of a specific topic, or for a particular client. Whatever the type of work — photography, artwork, printed matter, etc. — it can be put on a CD (DVD?) and submitted along with the application to the Copyright Office. Keeping a copy of the disk along with the application should help you stay on track with what has been filed, and when.
Thanks for this information. My IP professor talked about needing registration to bring suit. So I asked what protections does one have if they don’t register then, because she had belabored the fact that post-Berne it was not needed. She answered, “the protections of copyright” which had left me perplexed.