I Haven’t Been Paid, But They’re Using My Images!

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).

If you need assistance getting paid for your work or understanding the contract you’re being asked to sign, please contact our Intellectual Property Team today.

 

What Can I Copyright?

Copyright is a type of intellectual property that protects “original works of authorship.”

Literary works (poetry, novels, newspaper articles), musical works (songs and their lyrics, orchestral compositions, movie scores), dramatic works (films, plays) and visual arts (paintings, prints, comics, sculptures) easily come to mind when thinking of works that probably have copyright protection.

However, copyright can be a lot broader! U.S. law allows you to claim copyright in software, architecture, fictional characters (for example, Superman), pantomimes and even your business’s logo.  Online, the contents of a website or blog, including its text, graphics and videos, can also have copyright protection.

This broad nature of copyright is no accident.  The Copyright Act acknowledges that future technologies may create new kinds of content that can be protected.  When the founding fathers provided for copyright in the U.S. Constitution more than 200 years ago, they surely could not fathom billion-dollar superhero movie franchises or the Internet!

So, instead of providing an exhaustive list of things that can have copyright, the law simply establishes certain elements that must be met for a work to have copyright protection.

Elements of Copyright

To be copyrightable, a work must:

  • Contain a minimal degree of creativity
  • Be created by a human author

The recent case of Naruto v. Slater[1] confirmed animals are not afforded rights under U.S. copyright law.  This ruling meant “Naruto”, a crested macaque monkey who took a charming and commercially-viable selfie, could not sue to own the copyright of the photograph.

  • And be fixed in a tangible medium

The work has to be captured in a way to that it can be perceived, reproduced, or communicated for more than a short time.

Copyright protection in the U.S. exists automatically from the moment the original work of authorship is fixed.  You do not have to register the copyright, print a copyright notice on the item, or publish the work to have copyright protection!

(But read more about why you should register your copyrights in our blog post here.)

Exceptions to Copyright

Copyright does not protect ideas, procedures, systems or methods of operation.

Copyright also does not protect facts and mechanical, clerical content (for example, a phone book).

Copyright does not protect simple, short phrases.  If you wrote a pop song with only one lyric – “Baby, I really love you…” – you probably wouldn’t be able to copyright this phrase and prevent other songwriters from authoring similar sentiments.

Copyright also does not protect content authored by the U.S. Government.  Thus, you can freely quote federal governmental reports, publications, websites and laws.  Be careful though!  This exception is not true for other governments, such as the U.K.

If you have questions about copyright law, how to register your works with the U.S. Copyright Office, or what to do if you think someone is violating your copyrights, contact our Intellectual Property team today.

[1] 15-CV-04324-WHO (N.D. Cal. Jan. 28, 2016).

Photo Credit: Kelli Tungay on Unsplash

Why Should I Bother to Register My Copyright If My Work is Automatically Protected?

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.[1]  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![2]

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)![3]  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.

Or simply:

© 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.

 

[1] 17 U.S.C. § 504(c)(2)

[2] Id.

[3] 17 U.S.C § 1203(d)

Katy Perry’s Left Shark – Copyright

In the last blog post, we discussed Katy Perry’s attempts to secure a trademark in “Left Shark” and a design image of a shark. That discussion focused on trademark, which protects phrases and images that identify and distinguish a source of goods or services.  Copyright, on the other hand, protects works of authorship, such as drawings, songs, musical recordings, or books.

Cease and Desist Letter

Florida-based artist Fernando Sosa markets himself as “Political Sculptor,” [http://politicalsculptor.com/] and creates irreverent 3D-printed figurines inspired by current events and world politics. Immediately after Katy’s halftime show, Fernando began selling Left Shark figurines.  On February 3 (the Super Bowl took place on February 1), Katy’s legal team sent Fernando a Cease and Desist letter asserting that he was violating Katy’s rights under U.S. copyright law.  They also sent a takedown notice to Shapeways, the website selling Fernando’s figurines, and Left Shark was promptly removed from the site. Fernando decided to make the fight public, explaining on his blog: “Usually when it comes to small business owners, when the lawyers come after you the outcome is usually pretty predictable.  I decided to finally take a stand and break the usual cycle of rolling over or giving into legal threats.”   He engaged the services of a prominent intellectual property attorney, NYU Law Professor Christopher Sprigman, to respond to Katy’s lawyers.  Fernando also shared the electronic files online so that anyone with a 3D printer would be able to create their very own Left Shark sculptures.

Cease and Desist Responses

Professor Sprigman’s response letters brought up two points of copyright law.  First, under U.S. copyright law, costumes and clothes are generally not copyrightable.  He asked Katy’s lawyers to explain why the Left Shark costume should be treated any differently. He also questioned whether Katy Perry actually was the author of any Left Shark works of authorship, citing to Katy’s interview in Elle magazine where she explained: In my show, I am boss daddy.  I am boss mommy.  They call me Boss.  Everything goes through my eyes; I call all the shots, 100 percent of it.  With the NFL, I have to be accountable to several levels of red tape.  There are many committees I have to go through for my costumes, the budgets of my show, every interview – everything, I have to report to somebody.  So I am no longer the boss; I have to relinquish that control.” The Copyright Act requires all transfers of copyright ownership to be in writing.  [https://www.law.cornell.edu/uscode/text/17/204]  Thus, Professor Sprigman brought up a cogent point that the Left Shark design may belong to another individual or the NFL. Katy’s lawyers answered Professor Sprigman’s first point by explaining that Katy’s team created multiple shark drawings in the process of designing the costumes, and those were copyrightable.  They also explained that “multiple elements” within the costume itself were copyrightable, though did not explain specifically which elements these were. Katy’s lawyers also quickly asserted that Katy did, “pursuant to the terms of multiple agreements,” own all relevant copyrights to her dancing sharks.

Unfair Competition

After receiving Professor Sprigman’s first letter, Katy’s legal team asserted in addition to copyright infringement claims, they would also bring claims under unfair competition law, because “it is clear that any commercial value that your client’s sculptures have derives solely from the public’s association of them with Ms. Perry.” Unfair competition is a set tort claims that can be brought against a party that causes an economic injury to a business through a deceptive or wrongful business practice.  In the intellectual property context, unfair competition often is an accompanying claim to trademark infringement and the attempt to use an already-established name, logo, or other identifying characteristic to deceive consumers into thinking that they are buying the product of a competitor.  

“Left Shark Belongs to Us All”

In the last exchange between Professor Sprigman and the Katy’s lawyers, the professor made a salient point about the collective capabilities of the Internet: “No one knew that one of the sharks dancing next to Katy Perry during the Super Bowl halftime show was Left Shark until the Internet told us so.  The Internet decided that Left Shark’s flubbed dance moves were hilarious.  [The Internet] gave Left Shark his name, and then made him into a meme.  Left Shark isn’t really about Katy Perry.” In April 2015, Fernando retained a new attorney in Florida to continue work on his instinctual property infringement/unfair competition case with Katy Perry but, as of the date of this writing, any new developments between the two have yet to be publicly shared.

Photo taken by ShoreShot Photography