How Artists can Protect Their Intellectual Property

Attorney Emily Danchuk

Attorney Emily Danchuk

Guest blogger Emily Danchuk is an intellectual property attorney and founder of Copyright Collaborative, which is designed to educate, empower and unionize artists in the fight against copyright theft.

 

 

Why Artists Hesitate and Why They Absolutely Shouldn’t

I’ve made my fair share of approaches to artists in my capacity as an intellectual property attorney.  Frankly, I don’t like doing it that much, as I’m not a very “hard sell” kind of person. But I’ve done the approaching, and many artists are grateful for any initial advice and information I can give them.

It’s the ones who are dismissive of the idea of protecting their intellectual property that I can’t understand. Because…well, it’s just so important, not only to an artist’s business and livelihood, but also to their ability to have pride in what they do.

I believe that artists have been indoctrinated to devalue their profession and their art. This is crazy, because art is all around us, art keeps us happy and sane, art portrays important messages and art, along with music, is truly what keeps our humanity alive.  So why is the artist put on such a low rung?

An example of devaluation of artistic integrity that springs to mind is a recent matter I’ve been handling.  A potential client got me involved in her infringement matter.  A company had taken her images and made them an integral part of a book that they published,  without her knowledge or permission.  One of her images was the cover of the book.

After this was discovered and brought to their attention, the company, after some deliberation, decided to offer her a 10% licensing fee.  On 30% of the book. They argued that her (stolen) images made up 30% of the book, and thus she was entitled to a licensing fee on that 30%. So, in short, while the company was selling the book, littered with her protected images, for almost $20, she was entitled to a whopping 21 cents per book. Seems fair, right?  She was horrified and distraught.

To solve the problem of the general devaluation and underappreciation of artistic works, we need to start with the artists. Artists are the ones with possession of the artwork itself and, more importantly, the exclusive rights to reproduce and distribute it.  So, while artists hold the power and the artistic direction over these works, why do I see so many of them giving away their art for peanuts and shrugging when their works are stolen?

 

When it becomes known to potential infringers that you do, indeed, enforce your rights and obtain copyright registrations for your works, they will think twice about ripping you off.

 

When artists come to the realization that their works are worthy and important, no matter what the media may be, the art world can begin to change. When they don’t enforce their rights and simply move on to another product line, their apathy to the problem simply allows for the perpetuation of the problem and confirms to infringers that most artists won’t do anything about theft.

From a legal standpoint, and from my admittedly small perspective, I see the first step of this reevaluation as being protection. If you owned a jewelry store, you would take out insurance on the products being sold in your store. When you create artwork, the same type of protection (insurance against theft) comes in the form of registering your copyrights. So, you ask yourself, how does this insure against infringement? Here’s an example:

A client of mine is diligent about registering her artwork with the U.S. Copyright Office as soon as her works are made publicly available, through her website or trade shows. She found an infringing design of her textile design, and contacted me. Because her work was registered, she was immediately entitled to up to $30,000 in statutory damages plus attorneys’ fees. We then sent a cease and desist letter to the infringer, informing them of my client’s rights.

Long story short, they ignored our letter and kept selling the knock-off pillow.  At that point, the infringement became willful (because they were aware of her rights and disregarded them) and statutory damages increased to up to $150,000 plus attorneys’ fees. After a month or so of back and forth with attorneys and the infringer’s insurance company, we settled the matter for over $20,000. This settlement was obtained due to the leverage my client had because of available statutory damages.

 

Logo

 

Copyright counts. And it counts even more when you have a registration, which, if obtained in a timely manner, entitles you to statutory damages. This is a significant way in which artists can stand up for their rights. And the cost to register ($35 per application) is well worth it, as demonstrated above. Additionally, you can register a number of works under one copyright application, which saves money on legal costs.

Ignoring the problem doesn’t make it go away, and moving on to a new product line instead of addressing infringement simply puts more products out there to be copied.  It enforces the old adage, “nothing changes if nothing changes.”

On the other hand, a strong resolve to enforce rights and to address theft of artwork can work to bring awareness to the problem, encourage other artists to enforce their own rights and, simply, to put money in your pocket and bring some justice to the situation. When it becomes known to potential infringers that you do, indeed, enforce your rights and obtain copyright registrations for your works, they will think twice about ripping you off.

Some people think that “imitation is flattery” in these situations, and they’re happy to have their works copied because they think it confirms that they’re onto a good idea. That’s not how I see it.

The best analogy I can come up with to this train of thought is this: if someone walked past your house, really liked the television they saw through your window, and stole it, you wouldn’t say, “I’m so flattered that someone stole my television. I must have really good taste in electronics!” You’d call the police.

 

Comments

  1. Thank you Emily Danchuk for writing this important article. It is mandatory for Artists to copyright their artwork with the copyright office. Thank you Carolyn for all the work you do for artists to keep them informed. I have shared this post on FB and will also share on Twitter.

  2. Thank you for this insightful article. It helped me understand more fully of the potential harm in not copyrighting my work. I have never registered any of my pieces because I am not sure how. I have only put a copyright disclaimer on my listings. Now, I need to figure it out!

  3. Thank you for this important information for artists. Have a happy, day!

  4. Hi Brianna,
    Here’s a link to the Copyright Office: http://www.copyright.gov/circs/circ40.pdf:
    I did a search for “How do I register artwork with the copyright office” and many listings appeared. Some were sites that charged a middle man fee though, so be alert to that. You can do it yourself very easily, just fill out the forms–very straight forward!

    I was doing graffiti of high heel shoes in Washington, DC in the early 80’s and registered it under the title, “The Pump Collection”; studio paintings were included in the collection, as well as dozens of graffiti works. At any rate, I returned to the subject matter this past year and am still covered under that 30 year old copyright! Yay!

    Here’s some images and history of that work in my blog: http://jamesthatcherarts.blogspot.com/

    Best Wishes, and go for it! It’s a very professional feeling to own a copyright!
    James

  5. Renee, thanks for your kind words!

    Brianna, if you need any help with copyrights, or guidance in the right direction, please call me! You can reach me at 917.400.1663.

    Best,
    Emily

  6. I have posted a link to this on another thread on Facebook https://www.facebook.com/bbbullard/posts/529436380448180?comment_id=4846162&notif_t=like.

    So maybe you could weigh in.

  7. Thank you for your article, I agree with getting those images copyrighted quickly. I am currently in the middle of an infringement settlement and having that certificate of copyright registration is making all the difference.

  8. Excellent post–thank you! I’ve never bought the “imitation is flattery” argument. In my opinion I think that perspective speaks to a defeatist attitude and lack of professionalism as an artist/maker/entrepreneur on a number of different levels. To the extent that what we do is about art, it is also very much about business.

    It is really disheartening to see the ongoing blatant disregard for the intellectual property of others–unintended and otherwise. –Everything from images, to trademark, to trade name, etc.

    I registered my first large batch of images this year (that was a fun process given the slightly-less-than-intuitive user interface ;-D), and I remain vigilant about hunting down any instances of unauthorized use. As a creator of things, ideas, and content, I consider it a necessary part of the job.

    This project is long overdue. Kudos to Emily, the Copyright Collaborative, and Artsy Shark for their efforts in keeping this issue top-of-mind. I look forward to following the the Copyright Collaborative’s efforts closely.

    Thank you x100.

    ::bows deeply::

  9. Thank you Emily for the insight of how things can work.
    Keep it up ,
    Nikolas

  10. Thank you for the great article and for all the inputs from readers of this blog. Could you please advise how one can protect of an idea for a performance art piece?

  11. I have a question about registering a group of artworks. There’s conflicting info from artists and lawyers about whether you really can register a group of art work images, (paintings etc, not talking about photos), for one fee. (Which last I looked was $65 for a group.) I’ve been told the artworks to be both unpublished AND related, a series. This seems different for what I’ve been told about registering photos in a group, which may not have to be related. Since a series of paintings may not be completed for months or years, that’s a lot of work to hold back from publication, especially if the artist makes money from selling reprints. Also, I do a lot of miniatures that sell for about $150 each, so $35 to register each one individually is a huge percent of my profit. Like many artists, I produce dozens, even hundreds of new works per year. Damages for most artists are too low for a law firm to be interested, and few seem to take cases on contingency.

    With a small claims copyright court being considered, won’t registration have to be reformed or eliminated, the way Canada and some countries have? We do need to be able to use the courts to pursue infringements even if they’re not for the kinds of damages that are profitable to a law firm. A small claims process that artists could use themselves, (like we use the DMCA takedown process ourselves), might be just the thing. Once a few people had to pay up, word might get around that everything online is NOT free.

  12. Cindy,

    The works in a valid copyright “collection” need to all be: Created in the same YEAR AND first published (ie, put into the public via a website, trade show, catalogue, etc) on the same DATE. The collection should also contain works that are all somewhat related (ie, a theme or “season” of designs). Please feel free to email me if you want to set up a time to discuss this. You can reach me at [email protected].

    Thanks!
    Emily

  13. I am currently reserving the publication of some new works as I get them finished so I can copyright the batch. If I copyright in two batches of the same theme, and send them to my outlet in two batches, even though they are thematic, this is still correct?
    Also, what is the difference between copyright and trademark? I looked up a trademark registration cost ($375). Much more than copyright. Also is that for US only or international? A lawyer told me the trademark would be $3,000 plus his fees!!!!

  14. Michelle,

    Why don’t you call me and I can explain all of this to you? You can reach me at 917.400.1663.

    Thanks,
    Emily

  15. Hi Emily – thanks for sharing this important perspective and information on copyright — I definitely don’t agree with “Imitation is flattery,” and the worst is when you have *other* people tell you that as a way of dismissing any copyright infringement conversations.

    When I lived in Greece I actually had an art shop owner decline to show my work because he would *only* make a 50% profit when he could have his artist contacts in Indonesia “copy this for pennies – they do an amazing job.” Then he had the gall to whip out his camera phone and take a picture of one of my paintings (you can see it on Etsy here: https://www.etsy.com/listing/150366421/dreaming-ii-red-orange-blue-black-print?ref=shop_home_active) and say “Yes, this one is very nice.” !!!
    I was so appalled and got into a discussion with him about copyright infringement, but he could care less – he just wanted to make his 10000% profits.

    Anyway, my question is this: how difficult is it to win an infringement case when you don’t register your works but do add a copyright symbol with your name on each one? And wouldn’t it help that you can digitally show when the photos were originally taken?

    mahalo!
    Donia

  16. Donia,

    You cannot bring a legal claim for copyright infringement unless you have a copyright registration. Feel free to get in touch if you have any further questions, or want to discuss anything.

    Best,
    Emily

  17. Donald Taylor says:

    Emily,

    I am a firm believer in copyright registration but the US Copyright online system can be confusing. From what I understand you can register a claim for as many items (art work) as you want as long as they were created or published in the same year. Is this true? For example, if I have 7 paintings I created in the 2006 , can I list all 7 in one $35 application?

    • Donald,

      As long as the paintings were all first published (ie, the general public had access) on the same date, yes, they can all go under one application as a collection. Please feel free to contact me with any other questions!

      Best,
      Emily

  18. suzanne urban says:

    Hi Emily;
    Do you represent writers as well?

    Thank you.

    Suzanne Urban

  19. Copyright protects works of original authorship such as text, artwork, photographs, sound recordings, screenplays, music, lyrics, etc. You can register more than one work under one copyright registration. Such as a collection of books, songs, photographs, etc.
    If you need to protect your work you will want to register it for copyright. Visit http://copyrightregistry-online-form.com/ and fill out the form on the site. Your work will be registered same day!

    • Re: Anna’s Oct 1st 2014 comment and link, that doesn’t appear to be an official govt registration, which in the US is the only registration that matters. You pretty much can’t sue in federal court for statutory damages for infringement unless your registration with the US Copyright Office, copyright.GOV, is done. I know there are various sites offering ‘registration’ but it’s not the kind that matters legally. I would rather go thru a copyright attorney who is helping me make correct submissions, and/or do it myself on the copyright.gov site. Why pay a private service and the either end up not having real registration or having to pay the govt fee too?

  20. As a professional quilter, copyright issues are a big gray area to many. But, where I have a big problem is when I purchase a pattern to make some ‘widget’, and I get to the copyright statement that indicates the person buying the pattern can make 1 (sometimes 2 or 3) items for personal use, but not allowed to SELL any items made from the pattern.

    The other one is the ‘licensed’ fabric (such as College, NFL, Disney etc.) On the selvedge of the fabric it says it for personal use only, that you can’t sell things made with the fabric. I make T-shirt quilts. Lots of my customers went to Texas A&M, Univ. Texas, LSU and other surrounding schools. Sykel (the company that makes the fabric) tries to tell me that I can not use this fabric in my quilts. I buy the fabric by the bolt from a distributor, it sits on my shelves with other fabrics, and when the customer walks in, they bring their t-shirts and select the fabric they want to use for their custom quilt.

    Am I wrong on this? I think that once you ‘sell’ something, it is the property of the end user. If you did not want something made with it, don’t sell it.

  21. Hello Emily I ran across your article while searching for a way to protect my IP. I am a video game designer and have been working on a personal project for the past 5 yrs, I have recently came into contact with a few of my former class mates that would like to help me build the game, but I wanted to have something in place that protects my work prior to getting involved with them, such as The game title, characters, concept art, and overall concept of the game. I would like to retain ownership of the IP while allowing the group to use the property to create the game, and if the worst were to happen I would like the IP to be protected if the project was terminated. Also would there be a way for me (again worst case) take the IP with me and not allow further use if we were to part ways?? Any help would be appreciated

  22. Sylva Ventiko says:

    I have created a project titled Sylva Dean and Me using wearable sculptures from reclaimed milk cartons in coreographed performance experiences. A woman participated in a perforformance directed by me in 2014 and has now performed a virtually identical performance titled Performance Experience by Anaze Izquierdo. She has distibuted photos and videos of her event that are identical to the performance I created and photoed/videoed and in which she appeared. She did not even give me credit for the ideas and performance, let alone ask permission to use my ideas, wearable sculpture designs and performance. Do I have any way to stop her from doing my performance with copies of my wearable sculptures and any remedy? How do I protect myself against this in the future?
    Thank you in advance for your input.

  23. Debra Sturdevant says:

    I sold a gal an artwork image I created as a logo for her business. My signature appears on it. I sent her my one time use form I have used before to protect us both. It states she can’t resell it or use it in another business venue, that it is my own work, that I will not sell to a competing business and that as my intelectual property I can sell prints if the original in my art shop. She wants to trademark it along with her new biz name-says her atty doesn’t like my contract. So, for the $100 I got for her logo I can’t use it in any way now if she trademarks it? She verbally told me she would want my name on it.
    Thank you
    Debra

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