For creative freelancers, the Internet–specifically social networking–is an invaluable promotional tool. On a shoestring budget, you can connect directly with prospective clients.
But what if, say, you post your signed artwork to Instagram–perhaps a photograph or an illustration–and it is then taken by a company that removes your signature and slaps its own logo on it? The company doesn’t even ask you for permission, let alone actually pay you! What a bunch of outlaws!
It might sound unlikely, but it’s not. Unfortunately, this happens all too often on the Internet—you post your work on Instagram, Tumblr, or Pinterest, only to later find it on another user’s site, profile or account, uncredited or altered in some manner that compromises the integrity of the original work. As a freelance artist who makes a living off commissioned work, this can be detrimental to both your brand and to your bank account.
It happened once to a client of mine. She called me, rightfully frantic and upset about her artwork being used without her permission. Because the work was not registered with the U.S. Copyright Office, I explained, it would be difficult to litigate if the infringers wanted to put up a fight. We were eventually able to contact the website to have it taken down, and luckily, they immediately complied. The ordeal was a wake-up call, however, and now my client ensures that I register her work regularly.
This kind of behavior is a violation of copyright law, and fortunately, you have legal recourse. If you find unauthorized use of your work online, you may file what is called a “DMCA takedown notice.” You’ve probably seen one on YouTube when trying to watch that latest Beyoncé video. A DMCA (Digital Millennium Copyright Act) takedown allows the owner of copyrighted material to contact a website owner or Internet service provider to request that infringing content be removed from their site. Specific information is required for the notice, but several social networking sites have their own forms that allow you to enter the necessary information. Once the notice is received, the material must be removed within a reasonable period of time. A takedown notice is particularly helpful because prior registration with the U.S. Copyright Office is not necessary.
In the event that the takedown notice proves fruitless, which might happen if the alleged infringer decides to file a counter-notice challenging your claim, then your only other option is to file a lawsuit. Every artist posting work online should ensure that they register their work with the U.S. Copyright Office before, or as soon as possible after, it is put on the Internet, since the value of fighting an infringement lawsuit depends on registration.
Every artist posting work online should ensure that they register their work with the U.S. Copyright Office before, or as soon as possible after, it is put on the Internet, since the value of fighting an infringement lawsuit depends on registration.
Copyright attaches to an original work once it is captured in a “tangible medium.” Basically, once you take a photo, draw a sketch, or put paint to paper, that work is copyrighted, so registration is not necessary. But that’s like saying it’s “not necessary” to brush your teeth. Registration provides a multitude of benefits, including the ability to file an infringement lawsuit, evidencing of the validity of the copyright, and most importantly, creating the possibility that statutory damages and attorney’s fees will be awarded.
Copyright litigation costs at least tens of thousands of dollars, and owners of unregistered works must prove actual damages and profits of the infringement. If the damage was $5,000, but your attorney’s fees cost you $30,000, a suit clearly isn’t worth it. However, registering the work will allow not only your attorney’s fees to be paid, but permit statutory damages, which range from $750 to $150,000 per work.
For a freelance visual artist, the moral of the story is that one of the best business moves you can make is to consult with an attorney (as early on in your freelancing career as possible, and often) to get a grasp on intellectual property law generally, and more specifically, to register works before placing them online. At the very least, it is imperative to meet with one to be aware of how you should tackle infringers. This move will be invaluable if you need to go to battle over the online infringement of your work.
- Find a lawyer that can guide you through the copyright registration process, and set aside money in your operating budget to make regular registrations with the U.S. Copyright Office.
- Stay alert for online infringement. Sure, mentions and credits by your fans are great, but make sure you are comfortable with how your work is being portrayed.
- Take advantage of available take-down procedures.
Disclaimer: This content is for informational purposes only and is not, and should not be taken as, legal advice on any particular set of facts or circumstances. Please contact an attorney for advice on specific legal problems.