HEY, that’s mine! – When and why to register your copyright.

Enforcing copyrights in individual works can be gratifying, provided you register your copyrights early.

Depending upon the type of art you create and the manner in which you market your work, as a visual artist you may have experienced one of those “Hey, that’s mine!” moments – an occasion where you find a copy of you work being used or displayed by someone else without permission.

Although many works are created in two- or three-dimensional formats (paintings, drawings, sculptures, jewelry, architectural plans), most works can be easily digitized. Digitization can occur at the direction of the artist, as when a digital copy of a print is placed on her website for marketing purposes. However, digitization can also occur at the hand of a third party, whether acting with benign or exploitive motives. A benign scenario would arise where an admirer snaps a picture of your life-size marble sculpture of a tuba with his phone, so he can later show his best friend, a tuba aficionado. This benign act would turn exploitive if the fan turned entrepreneurial and decided to have his photo of your marble tuba printed on tee-shirts, mugs and postcards, which he then offers for sale on his welovetubas.com website. Other works of visual art are inherently digital when created, such as many photographs and graphic designs. 

The point is, once a work is digitized and placed online, it is much easier for sinister forces to exploit the work to the detriment of the artist; infringement is only a few clicks away.

When considering copyright registration, you first need to be aware that copyright exists as soon as your work is created in “any tangible medium of expression,” which can be later viewed or reproduced, without more.  In other words, as soon as the painter’s brush touches the canvas, or the graphic designer saves his creation to a flash drive, the artist owns the copyright in the work. Copyright ownership does not require registration, or even that the artist place a copyright notice on the work. Copyright vests with the artist as a matter of law when the work is created. Copyright is important because it grants the artist a number of “rights” associated with the work, which he can guard and use personally, or license to others for compensation. They include reproduction; distribution; derivative creation; and public display/performance rights.

With that said, the question arises – If I own the copyright in my work at the time of creation, why should I bother to register the copyright with the U.S. Copyright Office in the first place?  The answer is that copyright registration, especially when completed before widespread publication or dissemination of a work, provides the artist with remedies in the event of infringement which would not otherwise be available to assist in enforcing the copyright. These remedies, in the form of statutory damages and the recovery of attorney fees, present an infringer with a real incentive to resolve infringement claims at terms beneficial to the artist. An example will prove illustrative. 

Let’s imagine Laura is an artist who creates pen and ink drawings of local architectural landmarks such as the courthouse, city hall, and century-old residences. Laura sells prints of her works for $30.00 each at a local gallery. She also occasionally licenses her works to the Chamber of Commerce for use in brochures advertising her town’s Fall Fair. These licensing fees have never exceeded $50.00. 

One day, Laura learns that a realty company located several counties away has been using a copy of her drawing of the “Smith Mansion” in ads placed in the local “Gazette” newspaper, without her permission. Laura contacts the realty company and offers it a retroactive license for its use of the drawing, requesting a licensing fee of $300.00. The realty company ignores her.  Not to be deterred, Laura contacts a lawyer. Will Laura’s claim be one which is worth pursuing from an economic standpoint, or will the cost of legal prosecution outweigh any possible recovery? 

It depends.

Assuming Laura failed to register her copyright in the Smith Mansion drawing prior to the realty company’s illegal use, recoverable damages would be limited to her lost licensing fees ($50?  $300?), and any profit the realty company realized from its use of the drawing. Because it would be impossible to prove that the realty company sold any houses, and hence realized any profits, just because they used Laura’s drawings in its ads, Laura’s recoverable damages would most likely be limited to her lost licensing fees. In this circumstance, Laura would also be responsible for paying her own attorney fees in pursuing any claim. Pressing this claim would not be fiscally advisable.

However, if Laura had registered the copyright in the Smith Mansion drawing before the realty company’s use, she would be entitled to recover statutory damages in lieu of her actual damages (lost licensing fees). Statutory damages are recoverable in the range of $750 to $30,000 per work infringed for acts of non-willful infringement, and up to $150,000 per work infringed when willful copyright infringement can be proved. In the case of a lawsuit, the judge or jury would determine the amount of statutory damages recoverable from the infringer, within these ranges. A judge could also order the realty company to reimburse Laura for any attorney fees incurred in pursing the infringement claim. 

Remember, an artist or other copyright owner can only recover statutory damages and attorney fees in a lawsuit if the copyright in the work is registered prior to infringement.

Like most of us, juries and trial court judges don’t like cheats. Dishonest people are usually aware of this phenomenon. As a result, most infringers would rather settle their claims before trial, rather than risk a large award of statutory damages and attorney fees. If an artist elects to take advantage of the protections afforded by the U.S. Copyright Act and registers her copyrights prior to infringement, the threat of a large statutory damages award acts as a cudgel to get the attention of even the most impenitent infringer during settlement discussions. This results in settlements which truly reflect the purpose behind statutory damages – to compensate the artist and deter the infringer and others from infringing in the future. Depending upon the circumstances, it would not be uncommon for a claim such as Laura’s to settle for thousands, or even tens of thousands of dollars. Statutory damages make the pursuit of even modest infringement claims possible, and impress upon an infringer the gravity of his actions – all to the benefit of the artist.

So, register your copyrights early, particularly for digitized copies of works placed online.

REGISTRATION NOTE: Copyright registration can be completed by the artist on the U.S. Copyright Office’s website (www.copyright.gov), without legal assistance. Registration fees range from $35.00- $55.00 per work. Some works, such as photographs, can be registered in groups rather than singly. However, in some circumstances group registrations may limit the statutory damages recoverable when more than one work from the group is infringed.

Copyright 2019 Michael T. Hopkins. Originally published in Wisconsin Visual Artists Magazine, Quarter 2, June 2019, p.5.

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