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What Artists should Learn from the Art4Love Scandal: Busting the myths of copyright infringement Part 2 -- Copyright Registration

by Brian Sherwin on 8/23/2011 6:57:39 PM

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 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 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


Brian Sherwin


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Related Posts:

What Artists should Learn from the Art4Love Scandal: Busting the myths of copyright infringement Part 1 - Profit

When Copyright Infringers Become Victims... Part 1 - The Corporate Angle

Art4Love Copyright Infringement Scandal: Chad Love-Lieberman - Art Scam King?

Copyright Registration: Protecting Yourself as Well as Your Collectors

Topics: art marketing | art websites | Brian Sherwin | copyright | FineArtViews | Think Tank | art law 

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yes, learn the law. Know your rights.
If i may add....
Read the fine print of the sites you post your art on. Some places will claim ownership of whatever you post.
Be very cautious about posting High Quality images anywhere on the internet. Make low quality web versions that will not print out well IF anyone should decide to take your work.
And always put your signature/ watermark on all work posted on online.
It's not guarantee against stealing, but there is no point making it easy for the thieves.

Richard Shook
These are veyr important points. I also document the creation and execution process for each work of art I make, and datestamped.

While what you say is true, I among many artists feel it cannot and should not be a "Oh well, you didn't do this. You're screwed. Have a nice day."

Most of these artists are from which well documents dates and times and provides watermarks for its artists. Hell, the site will tell you what editing program or what kind of camera was used. Many of the pieces WERE watermarked AND had signatures and dates on them but they were removed with photoshop (I know I know, what they get for posting their art on the internet).

I will defend some of those who posted their art NEVER expecting to make a dime off of their pieces, especially from posting it to deviantart.

I can only hope that the lawyers and courts will be able to accept original photoshop documents, higher grade, higher resolution, or original copies that had been scanned as proof. Unlike Chad, if I can even use him as an example, many artists aren't in it for the money and don't stop and think "Oh I better copyright this! Only I can make money on it!", instead these artists are thinking "Better upload this to show my deviantart watchers!" And they don't deserve to have the case completely shut down just because the government doesn't officially say they own the piece.

Brian Sherwin
Katie -- I'm not saying "Oh well, you didn't do this. You're screwed. Have a nice day.". I simply discussing some of the realities of copyright law in the hopes that others will protect themselves before being faced in a similar situation. The law is what it is. I'd rather see people informed than ranting things that are not based in current law.

I hope that Art4Love is nailed for this alleged infringement -- so hopefully at least one of the 300 had their work registered. Honestly, most law firms won't bother taking on a case like this if the works were not registered before the infringement. It sucks, I know.

All the proof in the world won't matter as much in court compared to if the works were registered before the infringement occurred. Again, that is just a reality of copyright law. If the works were not registered before the infringement (and keep in mind the work must be registered, even if after the fact, to file a lawsuit in the first place.) the artist will likely only receive the profit from the sold prints.

In other words, an artist may end up paying $10,000 easily just to receive a few hundred bucks -- and perhaps nothing if no prints were sold. (Keep in mind that if the works were registered before the infringement the infringer is stuck with the burden of ALL legal fees.).

That said, lets say that none of the 300 artists on deviantART had their work registered. Lets say that none of them, because of that, can afford legal help. If that is the case hopefully deviantART, the company, will step up to the plate and pay for their legal fees in order to set an example OR at least sue Art4Love -- one company vs. another company -- if it can be proven that the images were 'ripped' from deviantART.

Katie, I understand that you are frustrated. However, do realize that MANY artists and other creatives fought long and hard to make what copyright is today. Also, don't assume that artists register their works with the Copyright Office just because they intend to make profit from their art. Some do it because situations like this one can happen.

Copyright registration is not as expensive as most people think -- hell, for the cost of a few pizzas, a fast food meal and a bottle of soda one can register a series of his or her work.

I realize that many artists are not aware of this -- which is why I've hit on it for 7 years now. Artists need to be informed.

Karen Rainwater
Brian, I truly appreciate your comments about copyright. I have been an artist my entire life, but haven't progressed a great deal, so I haven't thought a great deal about copyright. I am about to need to, however. I looked at the site very quickly and I am already daunted. Daunted by the cost, and the entire process. I will study it more later. I am wondering about posting images of sculptures online, as I have done on I hadn't given that a second thought until I read your article. I realize now that even those images have some value... I have a lot to learn!

Carol McIntyre
Brian, I wonder if many of us do not register our art because we don't think of our art as being original enough that someone would want to steal it? Are we giving ourselves enough credit for our creations or are we in denial or just naive? It is also a business activity that is too easy to put to the side and say, "I will get to that when I have time." So thank you for continue to push the button. I know I have to do something to remind myself after I have finished a painting to do a number of different things: inventory it, take photos, date it and now register it!! Oh where, oh where is that assistant I dream about?

Donna Robillard
I've registered some of my art as a series and some of it individually. It could be rather costly if you register each piece alone; but I was wondering if the copyright registration, as a series, is just as good if you had a single piece that was violated and you had to prove it.

Sharon Weaver
Thanks for making this all so much clearer. You mentioned in one of your comments that an artist can register a series of paintings for a reasonable amount and I am wondering if you can go into a little more detail on how this would be done. What constitutes a series and how expensive are we talking? Since I produce upwards of a hundred paintings a year, you can see that it would be expensive if I protected each one individually.

Brian Sherwin
Karen -- This is the way I see... most art marketing writers suggest to only upload images of your best art online. With that in mind, perhaps it would be better to register those images before doing so. If you believe enough in your work of art to list it for sale you should believe in it enough to add protection. That is, if you want additional protection to secure the market for said work.

True, the cost could be staggering if you have to register a bunch of work at once -- that said, perhaps it is time for artists to demand reform of the cost? I realize many artists feel the cost is high -- perhaps if it were lower more artists would register?

Brian Sherwin
Carol -- Honestly, I think the biggest problem is that so many artists don't understand the difference between copyright and registration. They assume that since copyright is automatic... well... that registration is as well -- and they are wrong. It spreads like a virus because one artist tells another artist that registration is automatic -- and from their it spreads further.

Another problem I see comes from the 'free culture' crowd of the art world. Artists, mostly those who rely on appropriation, will tell others that copyright/registration is not that important. Obviously they want that message to spread because their own work relies on it. No, I'm not saying that all appropriation artists think that way -- but I've noticed that mentality enough to recognize it between the lines.

Brian Sherwin
Donna -- Most of the legal eagles I've spoken with over the years suggest to go the series route. There are some specific guidelines, as you know, but if you register as a series you get more bang for your buck -- more works covered.

To answer your question... if you register a series all of the images in the series are protected by that registration. In other words, it does not matter if the person only 'steals' one image from the series -- that is still copyright infringement... and in that situation the image is registered to boot as part of the series.

Brian Sherwin
Sharon -- I'll try to post something in the next few days about registering a series. :)

Aline Lotter
I'm a lawyer and I know about registration, and I still haven't registered a single painting. For one thing, until my paintings start to sell, if not like hotcakes at least like cupcakes, why would anyone want to steal them. But I did look into registration, got the forms and some advice from a patent attorney, because I was worried about the ease of copying images from my website. Apparently I can register the entire website. But I was flummoxed by the form, which did not have a box to check for website registration. And what happens when I update the website (which I do every week)? Too many issues, too many other things to do, like paint more pictures and post more blogs. Too little money for legal advice. Too shy to keep bothering patent lawyer colleague.

I'm sorry to jump into this discussion with just a couple of observations. Copyright law as it now stands has become very tangled proportionally to the advance of technology, that is, the internet. The internet, of course, is a world wide web that reaches everywhere. And while violations that occur within our own borders have become the subject (probably one of the most difficult of subjects to explore)of this discussion, the application of laws at present and the potential causes of action, even beyond copyright infringement, haven't been examined very closely, and probably can't be, at least within the object of this discussion which is to help artists act proactively and preemptively to protect their work.

I would suggest that the most difficult, impossible, intolerable and completely unenforceable infringements occur every day in thousands of foreign production facilities. Unfortunately, those items are often shipped back into the United States without consideration of the intellectual property rights involved. I have seen this.

The domestic copyright law compensates victims in part on the basis of the extent of the damage and loss of revenue. The complications of foreign based infringements can be overwhelming.

I agree completely that registration is an important (and as far as domestic infringement is concerned) an essential. Unfortunately, the broad base of damages will continue, as I mentioned, because of the reach of technology. The ultimate protection for your intellectual property is to lock it away in a safe so that no one will ever see it. But that won't do you any good if you're interested in showing it and selling.

I can tell you there are a thousand ways to obtain images, no matter what technological barriers are put in place. So, copyright infringement will continue to grow in importance as a world wide problem.

Presently, respecting intellectual property will not be a priority for sovereign nations who feel they are "behind" in ideas, production, weapons, whatever. That can only change base on trade agreements, of which there are certain prominent countries, who even if they had one, would ignore them.

Anyway, speaking for myself, I think it is important to hold websites who manage artists work accountable for thefts to some reasonable extent. No doubt, the small print waives their obligations in that regard.

While it isn't perfect, a two pronged approach may serve best and that is to register for copyrights, for originals, catalogs, books, and so on. And secondly, to continue to research better technological means of protecting images, such as leach protection, url restrictions, no right click java apps, and who knows what else. The most restrictive technological solutions, however, will likely mean smaller audiences.

Of course, if you are right about marketing, making personal connections will make all the difference.

Oh, one other thing. Depending on your view of things and the nature of your product, if it has substantial meaningful value, provenance is the ultimate confirmation of ownership (and even that has been forged from time to time). Your ability to be able to create a unique object, and document that it is unique, plus, confirming clear title is important. Because a great deal of artwork is sold as prints, perhaps signed, numbered, and recording of print purchasers will help price erosions due to copyright infringments. (Print editions certainly would be a key indicator of a need to obtain copyright registrations.

Sorry to go about this. Good discussion.

It's probably important to remember as well, that when you sell an artwork you still retain the copyright unless you bargain away all or a portion of your rights in some form of contract or enforceable agreement. When pressed, I'll put a dollar value on potential future profits from the sale of reprints even if I don't plan to reproduce the image.

Brian Sherwin
Richard -- thanks for adding your thoughts. I'm actually surprised by the number of artists I've met who think they no longer retain copyright once their art is sold.

I recently talked to a team member of a very popular art website. He told me that in order to implement the kind of image protection I would like to see it would cost them $15 million to do. The technology exists -- but then you get into the world of patents and so on.

There is a company that allows you to search your images for pennies on the dollar -- but I can't think of the name of it off the top of my head. Still... it would be great if art community sites, in general, had that kind of feature in order to safeguard their communities.

So what do you think of copyright reform? What would you like to see changed?

Thank you, Brian. The question of copyright reform is a very interesting and difficult question. I think a step in the right direction would be to reduce the burden on the artist in terms of registration. Twenty years ago it made more sense, but I would question the need for a central registration. Today, for example, we have multiple domain name registrars and domain name servers operate very efficiently. (For the most part.)

I think the value added service of image comparison could be a good way to establish a virtual registration, with part of that cost covered by licensing fees (from software engineering)and a very nominal registration fee to an artist. Participation in that system could allow an artist to have their work certified as original and perhaps insured or bonded using a monthly fee system (like $4 or something in that neighborhood) in order to cover some or all of the potential expense of challenging a copyright in court.

This sort of system could be very helpful to those who work completely in a digital format, without any sort of physical "product". But, I don't know. So much of what we have in copyright has a juris prudence that has evolved over centuries. Changing or reforming the system could be near impossible, while developing a market based and financed solution may in the long run capture the interest and desire of foreign entities who would want to legitimize their products.

So, instead of paying for someone to search for your existing images, pay them to catalog your work to begin with and then watch for potential violations. Kind of like identity protection. Certification by such a system, in certain circumstances, adds value to an artist's work, and would certainly be a very profitable enterprise for providers of such certifications.

Just supposing.

The obvious difficulty, along the lines of what Donna wrote, is that the artist would have to register every creation individually, which seems daunting and cumbersome. Is there a means for an artist to register once and have it cover anything she or he signs her or his name to thereafter? Designate one's entire output as one continuous 'series?' I'm only half joking on that.


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