A Word to the Wise on Copyright Protection
I queried my attorney about copyright infringements some while ago and just came across the email response. It’s worth reading, understanding, and using for suitable action if you hope to protect your work from infringers. The directions are short and to the point:
“You can’t sue anyone for infringement (that means you cant enforce your rights in court) without a copyright registration from the US Copyright Office. That means that they are vitally important. And you cant get statutory damages or attorneys fees unless your registration was done before the commencement of the infringement. Otherwise, you are limited to NET profits of the infringer.”
The clear lesson here is that if it bothers you when companies here or abroad steal your artwork and use it for their own profit-making purposes without paying you anything at all, your real protection is having registered the copyright in your work before the possibility that it might be ripped off.
Of course, not everyone has the funds to register a copyright online each and every time they complete a new work of art. Most artists will cluster images together into collections. These might be called ‘the autumn collection’ or ‘the February collection’ or whatever, and they may include images that don’t look at all like each other. No matter. Any copyright registration, even a late one, is better than no copyright registration.
A word to the wise.
I was told that most of the infringement cases (98%) occurred overseas, mostly in Asia, and that even our registered copyrights don’t stand a chance of holding up.
Curious as to your thoughts.
Many if not most of the infringements occur overseas, especially in China, but there’s a growing trend for the Hong Kong and Shanghai-based buying reps for major American mass merchandisers to purchase ready-made products directly from Chinese factories. In doing so, by and large they insist upon copyrighted art and demand proof of copyright registration as well as clear evidence that the factory has the right to reproduce the art. A major chain like Target, let’s say, is not going to purchase products presented to them by their factories without such evidence, because then they’d run the risk of being sued in an American court and without proof the art is safe to use, they would lose. So as more and more Chinese factories originate art-based products for the American market, proof of copyright has become essential.
Some additional thoughts to Lance’s comments:
“And you cant get statutory damages or attorneys fees unless your registration was done before the commencement of the infringement.”
Statutory damages and the ability to recoup attorney fees (at the court’s discretion!) are available if the work was registered BEFORE the infringement occurred OR within three-months of “first publication.”
“Otherwise, you are limited to NET profits of the infringer.”
Without a “timely” registration, an artist is limited to actual damages (what s/he would have licensed the work had the infringer purchased a license) AND the disgorgement of illegal (“net”) profits, if any (often very difficult/expensive to prove).
“Most artists will cluster images together into collections.”
It’s best NOT to identify groups of works as “collections”, “collectives,” or “compilations.” Instead, use plural words like photographs, paintings, poems, etc. to title your copyright registrations: e.g., “Bob K. Smiths Unpublished Photographs of Jan & Peter Brady’s Hawaiian Wedding May 2014 at 2633 Images.”
E.M. Corsa wrote, “I was told that most of the infringement cases (98%) occurred overseas, mostly in Asia, and that even our registered copyrights don’t stand a chance of holding up. Curious as to your thoughts.”
If a foreign infringer is a business that has an office operating in the US, you can sue the affiliated office.
Hello Sir, thank you very much for these infos.I read sometime that in China, they don’t care about if you copyright your designs or not,they’ll go on reproducing it all the same without taking permission from the person who designed it and that you cannot even take them to court and wine because they don’t count such act to be stealling.Is it true? What do you think is resposible for this? and how can one prevent his or her designs from been stolen? Have a wonderful day.
There are a lot of copyright problems with products coming out of China and the best way to protect your art is to be vigilant, to register your copyrights, and to contact the retailers if you find that your copyrighted artwork appears on products on their shelves. Most major American mass-merchandisers that purchase art-based products from China insist upon proof of copyright, as they don’t want to get stuck in needless lawsuits.
Great info, thanks for sharing Lance!