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.
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.