This article is by Brian Sherwin, regular contributing writer for FineArtViews. Brian Sherwin is an art critic, blogger, curator, artist and writer based near Chicago, Illinois. He has been published in Hi Fructose Magazine, Illinois Times, and other publications, and linked to by publications such as The Huffington Post, The Boston Globe, Juxtapoz Magazine, Deutsche Bank ArtMag, ARTLURKER, Myartspace, Blabbermouth, Milwaukee Journal Sentinel, Modern Art Obsession, Citizen LA, Shark Forum, Two Coats of Paint, Vandalog and Art Fag City. This author's views are entirely his/her own and may not reflect the views of BoldBrush, Inc. You should submit an article and share your views as a guest author by clicking here.
By now I'm sure that most have came across information about the allegations facing the commercial art site Art4Love, and its assumed owner -- Chad Love-Lieberman. The copyright infringement allegations involve over 300 artists from the social art site deviantART.com. Allegedly, Art4Love 'stole' user images from deviantART, changed the name of authorship of the art, re-titled the art and listed the art for sale. Obviously artists who utilize art websites are concerned that something like this could happen en masse -- but I'm also noticing that many artists are confused about copyright and their rights in general as artists.
As I mentioned in Part 1 of this series, I have written extensively about copyright registration in the past, including an article on FineArtViews about the importance of copyright registration in regard to protecting yourself, as well as, your collectors. The topic is a staple among art marketing writers in general -- but for whatever reason, many artists are confused about copyright registration.
The common myth surrounding copyright registration is that many feel that their artwork is registered upon creation. I've seen many variations of 'my work is automatically registered when I create the work' -- and this myth is popping up during debates that I've had with artists on Facebook and Twitter about Art4Love. Those with this opinion are wrong. True, the artwork is copyrighted upon creation -- however, that does not mean that the work is registered.
Copyright registration involves a formal process with the US. Copyright Office. (Obviously I'm writing this with US artists in mind -- I don't have much knowledge of copyright regulations outside of the United States). The copyright.gov website has an FAQ that makes this aspect of copyright registration very clear. Unfortunately, even when I show some artists word-for-word what the government says about copyright registration, some continue to insist that I'm wrong. I blame that on the copyright myths that have been circulating on the Internet for years.
Those who misunderstand the role of copyright registered serve only to harm themselves and their careers if an individual, or company for that matter, decides to infringe upon images of their artwork at some point. After all, if your artwork is not registered before the copyright infringement occurs, you will find that your strength in court -- and what you can be awarded -- is rather limited compared to what it would be if you had registered before the infringement occurred.
Furthermore, in order to file a claim of copyright infringement, you have to register the work in the first place. In other words, you can't sue an individual or company for copyright infringement until you have registered the work that has been infringed upon. On top of that, most law firms won't take on a copyright infringement lawsuit if the artwork was not registered before the infringement.
This is one thing that concerns me about the artists who have been harmed by Art4Love and its owner. My gut tells me that many of these artists failed to register their work prior to the alleged infringement. Point blank -- these artists do own copyright of their artwork without having registered the images. However, if they did not register the work prior to the alleged infringement, they will find it very difficult to go after those who allegedly infringed upon their copyright.
Why is copyright registration important? I'd hope that the reasons I gave above would suffice as to why it is important. However, I'll go into further details. If the works are registered prior to the copyright infringement, the victim of the infringement may receive up to $150,000 in damages for each misused image. If the images are registered after the infringement, those damages are off the table.
In addition to the penalty mentioned above -- those who had their work registered before the infringement -- and if that infringement is proven in litigation or court -- can force the infringer to pay for all legal fees -- including your attorney fees. If the works were registered after the infringement in order to file a claim that penalty is also off the table. In other words, the victim of infringement will have to pay for his or her legal fees -- which is why most law firms won't take on a copyright infringement case if the images were not registered prior to the infringement.
Why will few law firms take on a copyright infringement case if the artist failed to register copyright prior to the infringement? Simple. I've been told over the years by attorneys that a case of this nature can cost the victim upwards of $10,000 in legal fees. If the ability to force the infringer to pay for legal fees is off the table, the victim will likely be expected to have money in advance to pay for legal fees. Most people, in general, don't have $10,000 on hand in order to pay a retainer upfront. Furthermore, the law firms know that there really is not much that can be done from a financial standpoint if the work was not registered prior to the infringement.
Another setback for artists who fail to register copyright before copyright infringement occurs is that they will have the burden of proving that they are, in fact, the original creator of the work that has been infringed upon. Yes, copyright is established upon creation of a painting, drawing, what have you -- but can you prove when the work was created? Can you prove that you are not a copyright infringer yourself? After all, the copyright infringer may attempt to say that you are the 'real copyright infringer' if he or she knows that you failed to register copyright prior to the infringement. Point blank -- copyright registration establishes a time and certified proof that you are, in fact, the author of the work. If the work is registered prior to infringement, the burden of proof is on the infringer.
If the allegations prove to be true, I truly hope that Art4Love is hammered in court. That said, it all depends on if any of these artists had images of their work registered prior to the alleged infringement. In fact, the owner of the site may simply walk away from this whole issue -- or receive a slap on the hand in court compared to what would have happened otherwise -- if these artists failed to register their work prior to the alleged infringement. I realize that is hard to accept -- but that is just the way copyright law works currently.
In fact, if the artists involved in the Art4Love scandal failed to register their work prior to the alleged infringement they will only receive awards based on their attorney's ability to prove how much the infringer made off of exploiting the images and how much the infringement cost the artists. That can be hard to do -- and very expensive. Furthermore, it may very well be that Art4Love only sold a few prints, if any. In other words, the artists who did not register work prior to the infringement may spend thousands of dollars only to receive a trivial amount in return.
On the other hand, and as mentioned earlier, if the work was registered prior to the alleged infringement by Art4Love the artists could receive upwards of $150,000 per misuse of the copyrighted, and registered, images. In other words, the site owner will likely end up bankrupt if some of these artists registered prior to the alleged infringement -- that is, if the case goes to court and the artists win.
More copyright topics -- and copyright / copyright infringement myths busted -- to come.
Take care, Stay true