By: Caroline R. Kert, Esq.
I’ve noticed a recent trend with artists calling to get help resolving a contract issue. The scenario usually unfolds something like this:
- The Artist had been contacted by a promotor/client/other artist to help capture photos or video.
- There is no written agreement, other than a few texts back and forth about payment rate and when to show up to the shoot.
- The Artist does the shoot, edits their product, and provides one or several complete products. This can be a series of photos or a few versions of a promotional video.
- The client begins using the completed works or forwards them on to their own client. The Artist usually finds this out by seeing the work on a website or FB feed.
- The Artist never gets paid and receives continued assurances that payment will come once the client receives payment from their own client.
What a horrible position for the Artist to find themselves in, and what an unsustainable reputation for the client to establish within the market!
But, not all hope is lost—copyright law can help the Artist gain some leverage in negotiating a resolution. The main thing the Artist should remember is that copyright in the images remain with the Author until there is an affirmative act to assign or license those rights to another. The Artist is the Author and retains copyright, unless they are 1) the employee of the client or 2) there is a written, signed agreement that defines the work as a Work Made For Hire, assigns the work, or licenses the work.
Without a WRITTEN AGREEMENT, a contract Artist has not given the client any rights to reproduce, display, or otherwise use the work. This can often provide a lot of pressure to get payment when the Artist clarifies this to the client. Without rights in the work, the client is arguably infringing on the Artist’s copyright when reusing the work or selling it to a third-party. In our experience, a well-crafted cease and desist notice to the third party can generate immediate attention and payment.
Even with a written agreement, the doctrine of Work Made for Hire is often misunderstood by artists and their clients. Very few types of projects qualify for treatment as a Work Made for Hire. Even if there is a clause that attempts to identify the client as the copyright owner, it often fails.
Of course, every situation is different and you should contact a lawyer that specializes in artist representation before taking action. Your attorney can help you review communications and written agreements to assess what next steps can help you get paid.
To help minimize the potential for conflict, always get your agreement in writing and clarify when payment is due (payable in stages with various deliverables, and never dependent upon whether the Artist’s client gets paid by a third party).
We get this question a lot. Artists, designers and other creative entrepreneurs are busy people! So, why should you go through the trouble of registering your copyrights and putting copyright notices on your works if, under U.S. Copyright law, you have copyright protection as soon as your work is “fixed” in a tangible medium?
We understand the instinct that you surely have better things to do with your time and money, but notice and registration are what give our copyright law its teeth!
Let’s say you discover that a major fashion retailer has copied your artwork on t-shirts and has been selling it all over the world? You file a lawsuit and the judge finds in your favor. You won!
Or maybe you wrote a catchy melody and uploaded a YouTube video of yourself playing your guitar and singing it. A major brand uses part of your melody in its new commercials for cleaning products. You file a lawsuit and the judge finds in your favor. You won!
Having a valid copyright registration may mean the difference of being awarded $100,000 in statutory damages, plus an order that the other side has to pay your attorneys fees, versus having only a piece of paper from the Court saying you were right and a $15,000 bill from your lawyer you now have to pay.
In other words, to really benefit from copyright law, you need to have a copyright registration certificate from the U.S. Copyright Office, and you have to let others know you claim copyright protection in your content.
Statutory Damages and Attorneys’ Fees
Current copyright statutory damages are set out in 17 U.S.C. § 504. They range from $750 to $30,000 per work, an amount to be determined at the discretion of the Court depending on the facts of the case. However, if a defendant can show that they were “not aware and had no reason to believe” they were infringing copyright, they may ask the Court to have the damages reduced to $200 per work. This is why providing notice is key.
If you can show the defendant was willful when it infringed on your copyright – it was deliberate, voluntary and intentional – a judge is authorized to award you damages of up to $150,000 per work!
Also, if you did properly place some kind of copyright notice information on or in your work, and the defendant intentionally removed it before they copied you, they could be liable for an additional $200 to $25,000 per occurrence under the Digital Millennium Copyright Act (DMCA)! An example of this would be a website owner cropping your photograph in a way that the copyright notice information you’d place in the bottom corner, and then publishing the image online without your permission.
In other words, statutory damages can really add up, and they allow you to avoid having to hire damages experts to prepare costly reports and testify on exactly how much you were financially damaged by your infringer’s activities. Moreover, attorneys’ fees provisions means if you are successful in your lawsuit, the other side pays your lawyer’s bill. Even if a lawsuit is never filed, copyright registration and the mere threat of statutory damages can provide you leverage to protect yourself and your business.
What Is “Notice”?
A good copyright notice lets the public know that (1) the content is protected by copyright; (2) who the author or owner is; and (3) when it was first published.
Beyond this, there is no required form or method for providing this information.
One way is:
Copyright © 2018 Sally Jones. All rights reserved.
© 2018 Sally Jones
You could also provide more detail:
Copyright by Sally Jones. Originally published November 29, 2017. Revised on January 2, 2018.
You may have noticed major movie studios like Roman numerals:
© Time Warner Studio MCMXCVIII
In other words, so long as you provide the required notice, the form and format is up to you.
If you have more questions about registering your copyright, or think your copyright is being infringed upon, give our Intellectual Property team call.
 17 U.S.C. § 504(c)(2)
 17 U.S.C § 1203(d)
A good website for your business can be an invaluable marketing tool. However, if you’re not careful, you could get into trouble for using images, photos, videos and other content in violation of copyright law.
Rights Granted under Copyright
Under the U.S. Copyright Act, the owner of a creative work is granted certain rights, including the right to prevent others from reproducing or copying their work, publicly displaying their work, or distributing their work.
Posting copyrighted material, say, a photograph, on your website arguably violates all these rights! Moreover, your Internet service provider (ISP) can also be found liable for copyright infringement, even if they played no part in designing or maintaining your website.
All small business owners must therefore be extremely careful about what goes on their website!
Even big companies with sophisticated marketing campaigns get into trouble. In May 2017, world-renowned luxury brand Tiffany & Co. was sued by photojournalist Peter Gould for using his photograph in an ad campaign for a line of jewelry designed by Elsa Peretti. The photo at issue was a shot of Ms. Peretti back in the day. The case was quickly settled and dismissed in July 2017, presumably because Tiffany’s agreed to write a nice fat check to Gould.
Tiffany certainly had the deep pockets to quickly deal with the lawsuit and settle, but your small business may not have these kinds of resources.
As a general rule, we tell our clients to assume any content they may want to use for their website, brochure, promotional video or other project is protected by either copyright or trademark law unless they can confirm otherwise. A work is not in the public domain simply because you found it up on the Internet already (a common misconception) or because it lacks a copyright notice (another misconception). Just because you are a local small business with not a lot of revenue and not a great understanding of copyright law does not mean you can claim “fair use” for the content either. There are no safe harbors in the Copyright Act if you just made a mistake or misunderstood.
Finally, be aware: If you do see an image or video is affixed with a copyright notice (or “copyright management information“) and choose to remove the info and use it anyway, this makes you liable for additional statutory damages under copyright laws.
Statutory damages range from a few hundred dollars to $25,000 per violation, meaning a mistaken infringement on your website can cost you a lot.
Investigate Infringement Claims Promptly
If someone complains about an unauthorized use on your website, remove the offending material at once and begin to investigate the claim immediately. If necessary, consult with an attorney on how to handle the investigation and how to respond to the claimant appropriately.
You may find after your research that your use is perfectly legal. However, you should remove the material while you investigate in order to limit your possible damages should the claimant file a lawsuit. Continuing to use the infringing material after receiving notice will increase the chances of you being found liable and increase the amount of damages you may have to pay.
Removal of infringing material is also an element of the Digital Millennium Copyright Act (DMCA), a 1998 law establishing that an ISP can avoid liability by following certain rules, including speedy removal of infringing material. Thus, if you don’t stay on top of copyright infringement complaints about your website, your ISP may get dragged into your mess as well.