by Amy Everhart

Your Copyright Questions Answered

(homepage image: Reversible Jacket by Lauren Nassef)

Thanks to everyone for sending in your questions. I have sent many of them to copyright lawyer Amy Everhart who has graciously taken time out of her busy schedule to help us out. Thank you so much to Amy for sharing such valuable information to us artists! (Thanks also to Grace of Design Sponge for recommending Amy.) Amy J. Everhart launched her trademark, copyright and entertainment law firm earlier this year after 11 years with a Nashville-area boutique firm. Her website can be found here.

Amy also helped Lauren with her copyright infringement issue and the situation has been corrected. Yay! Samantha agreed to destroy all work that used Lauren’s original drawings plus Texprint has revoked her award.

We all know that copyright infringement is a common issue and a sticky subject. Sometimes it can be very difficult to know where to draw the line between inspiration and copying. And many of us are clueless on what to do if it does happen to us. Hopefully this post will help some of you understand the laws better so you can protect yourselves. Now for the answers you’ve been waiting for:

What are the best ways to protect ourselves from being plagiarized when using the internet?

1. Always include a copyright notice on or near your work in a visible and obvious manner. The notice should read: “© [YEAR OF CREATION OF WORK] [NAME OF COPYRIGHT OWNER].”

2. If you routinely post your works on your website, you should consider adding a Copyright Notice at the bottom of each page stating that all images and artwork included on the website are your proprietary copyrighted works and may not be reproduced without your permission. If you wish to make your works available for license, feature your contact information prominently to make the process as simple as possible.

3. If possible, add a watermark to your works so they’re difficult to reproduce from a mere right click of the mouse. You might also consider special tracking software that allows you to keep track of your images on the Internet. I’ve also read about applications that provide a pop-up “Do not copy!” warning when the user right-clicks on your image.

4. Although you have copyright protection the minute you create a work and embody it in a tangible medium, you should consider registering your works with the U.S. Copyright Office. Registration is required before you can sue for copyright infringement, and it gives you the opportunity to recover attorneys’ fees and special damages when actual damages can be tough to prove. You can register electronically at www.copyright.gov for $35 per work.

What legal protections are given to an artist whose non-copyrighted images (those made by the artist but not applied for copyright) were stolen?

From the minute you create a work and embody it in a tangible medium, it has copyright protection, regardless of whether you register it with the U.S. Copyright Office. Therefore, if someone infringes your unregistered work, you can sue for copyright infringement. You must register the work before you can file the lawsuit, though. If you win the lawsuit, you are entitled to 1) an order that the infringer stop infringing your work and destroy the infringing articles; 2) any actual damages you suffered; and 3) the infringer’s profits from exploiting the infringing article. These types of damages can be tough to prove, which is another reason to register your work with the Copyright Office before infringement: Registering before the work is infringed allows you to elect, in lieu of actual damages and the infringer’s profits, to recover “statutory” (or “penalty”) damages of up to $150,000 per infringed work (the amount depending on the nature of the infringement) and the opportunity to recover attorneys’ fees.

Can an artist legally demand her images be removed from a website, even if it’s not being used for monetary gain by the offending blogger/webmaster?

Yes, if the third party’s use constitutes copyright infringement without a valid defense. A use does not have to be for monetary gain to infringe the artist’s copyright. Whether the use is for monetary gain, however, is a factor in determining whether the use is “fair,” a valid defense to copyright infringement. See below for a discussion of what constitutes “fair use.”

Most web hosts include a Copyright Policy or Terms of Use on their websites with instructions on how to report a copyright claim and request removal of the infringing image. If you believe you have a valid claim (consider consulting an attorney first) and wish to report it to a web host, follow the instructions for that specific website. Be careful, though, as a bad-faith request for removal can lead to a claim against you!

What are the steps you should take to confront someone who has been selling copies of your drawings online in both the circumstance of copyrighted and non-copyrighted drawings?

Again, keep in mind that you have copyright protection in either case but enhanced potential damages if you registered the works with the Copyright Office before the infringement. In either event, at this point it’s a good time to consult a lawyer. The lawyer will probably recommend sending a “cease-and-desist” letter demanding that the infringer stop the infringing conduct and perhaps seeking an accounting of all profits the infringer made from the infringement. You need to be careful with any steps you take at this point, because you may end up filing a lawsuit, and your actions and statements could be “used against you” (as they say on TV) as admissions in the lawsuit.

When using photos for reference to create pieces of art or illustration, is there a percentage that has to be different from the original photo? What are the rules about this?

You may have heard the “30%” rule, but unfortunately there are no hard and fast rules on this issue. In fact, a major case dealing with artist Shepard Fairey’s artistic rendition of a photo of President Obama is pending as I write this. If you’d like to read more about this case and other recent court opinions, please see my recent blog article on the subject right here.

The issue whenever you use a photo to create your artwork is whether your use of the photo is “fair use.” A photo, like your artwork, is protected by copyright. Whether the use of another’s copyrighted work is fair is a tough question because it depends on a balancing of several factors, including 1) the purpose and character of the use, 2) whether the work is fact-based or fiction, 3) the qualitative and quantitative amount of the work used and how much of your work uses the original, and 4) whether your work usurps the market for the original. If your work transforms the original, uses only so much of the original as is necessary to make your point, is for comment, criticism, satire or parody, doesn’t use the original in its entirety, and doesn’t usurp the market for the original, it’s more likely to be fair.

There is one hard and fast rule you should remember: When in doubt, get a license.

How does infringement come into play in the realm of collage: when text/images from magazines, books, etc. are used in conjunction with the collage artist’s own embellishment with paint, etc.?

The fair-use doctrine applies here as well. The more you take of the text and images from magazines and books, etc. (quantitatively and qualitatively), the less likely your use is fair. Again, keep in mind that, if your work “transforms” the original work, your use is more likely to be fair. So scraps of a magazine photo pieced together to form an entirely new image is more likely to be a fair use than a cut-out of an entire copyrighted poem used in your new work.

Two cases involving artist Jeff Koons demonstrate where courts draw the line. In one case, Koons’ collage using a pair of legs and feet from a fashion-magazine photo was found to be fair use because it “transformed” the original. On the other hand, Koons’ sculpture copying a note-card photo of a couple and their puppies was found not to be fair, as it copied the essence of the photo.

What is the line between homage and infringement? Can an artist pay homage to other pieces of art, classic characters, etc., by spoofing or including elements of well known images in his/her work? Could I include a drawing of Charlie Brown in a painting that has my own images in it?

Classic cartoon characters like Charlie Brown are protected by copyright, and using them in your artwork creates the same issues as using anyone else’s copyrighted work. Our friend Mr. Koons teaches us yet another lesson on artists’ legal boundaries. Koons produced four sculptures including the “Odie” character from the Garfield cartoon. The sculptures were based on a collage Koons created by cutting out a color picture of Odie and placing it next to a cut-out image of a stuffed doll. The court rejected Koons’ claim that the sculpture was a parody and thus fair use, because the copied work was not the object of the parody.

Parody can be fair use, depending on consideration of the same “fair use” factors discussed above. Parody is when an artist, for comic effect or social commentary, closely imitates the style of another artist, creating a new art work ridiculing the style and expression of the original. Parodists are given more leeway in how much they can copy, but the parody is fair use only if the user takes no more of the copyrighted work than is necessary for purposes of the parody. An example of permissible parody is a spoof ad for a Naked Gun film featuring star Leslie Nielsen’s face on a look-alike of photographer Annie Leibovitz’s famous photo of a pregnant Demi Moore on the cover of Vanity Fair.

At what point does an image become public domain? And when it is public domain, can you use the image unchanged in your work for sale?

The duration of copyright varies depending when a work was created and, for older works, whether certain statutory formalities were met. In general, you cannot count on a work being in the public domain unless it is more than 120 years old. If you want more specific guidance, you can check out a chart such as the one located here.

Also, be wary of clip-art and similar websites that state a work is in the public domain, because often it is not. And simply because an image is online without a copyright notice does not mean it is in the public domain. Certain works may be available for use pursuant to a “creative commons” license, but you should be sure to use such works only pursuant to the terms of the particular license. For more information on creative-commons licenses, please see my blog entry on the topic right here. Again, when in doubt, get a license. If you are certain a work is in the public domain, you can use it unchanged in your work for sale.

I hope this information is useful! Of course, the usual disclaimer: This information is not intended as legal advice. Each situation is unique, and you should consult an attorney for your specific legal needs. If you’re interested in reading more about trademark and copyright law, please see my blog right here.

Thanks again to Amy!

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