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Copyright

A NEW YEAR’S RESOLUTION YOU CAN EASILY KEEP (PT. 2)

Graphic Novel for Art Law Journal

In part 1, I showed you at least one New Year’s resolution that you won’t break easily.  In part 2, I want to take you through a fairly typical example to illustrate the benefit of copyright registration

In this example, you play an up and coming comic book illustrator.  The villian is a very successful online clothing company called Shirts R Us.  The company sells hundreds of different t-shirts with graphics or slogans emblazoned on the front, all of which are printed on-demand.  You discover that the company has started selling three different t-shirts with your illustrations from a soon-to- be-released graphic novel series that you are self publishing.  The media has been clamoring for this new novel for months but now that big media launch you have been working on may not happen.  After calling the company, they tell you that they legitinately purchased the designs through an online transaction from someone in Nigeria and were unaware that the work was not his to sell.  That person cannot been located. The company never verified copyright ownership and it is known in the industry that they rarely do. You find out about the infringement one month after the company started selling the t-shirts.  In that month, Shirts R Us sold 35 of your illustrated shirts at 19.99 each, for a total profit of  $550.  You are upset at the theft of your Work, and the potential damage to your launch and want to sue Shirts R Us. You asked the company to stop selling the infringing shirts which they did immediately. But now, the press has discovered the those shirts had your new designs and the images have been seen in News stories all over the comicsphere. The damage has been done.

Copyright registrants are allowed prescribed statutory damages and payment of legal fees

Here are the 2 scenarios.  In the first one, you have not registered your illustrations with the Copyright Office.  As discussed in part 1, copyright registrants are allowed to statutory damages and payment of legal fees, so if you sue then you are only entitled to any damages that you can show as well as the profit Shirts R Us made in selling the shirts, or $550.  Unfortunately, the damage to your potential sales or reputation are hard to quantify since you haven’t launched yet, and it is hard to show what effect this situation might have.  So the only quantifiable amount you can count on is the $550. With that small amount, no lawyer will take you case on contingency so you would have to pay for an attorney out-of-pocket and hope that you can convince a jury as to the damage caused by the infringement.  You also discover this type of thing happens a lot with Shirts R Us but you and the other people damaged by the company’s practices are all in the same boat; given the high legal fees required to sue, your only recourse is to forget a lawsuit and move on.

In scenario 2, you have registered your illustrations prior to the infringement.  Now, since legal fees are available as part of the statutory damages, a top intellectual property attorney agrees to take on the case.  The lawyer does not have to show the damage you have suffered or calculate the actual damages because you have statutory damages available.  the lawyer only need to show that you have a valid copyright and that the company copied your work without permission.  There is a bit of back and forth in which Shirts R US tries to make half hearted attempt at one of the defenses allowed by the Copyright Act, but they quickly see there is no way out. With the thought of a Public Relations nightmare occurring over this incident, Shirts R Us agrees to a settlement of $20,000 per infringement, or $60,000.  And your attorney gets his fees paid as well.

Now, since legal fees are available as part of the statutory damages, a top intellectual property attorney agrees to take on the case.

Now of course, this is simplistic.  Every case is different. I don’t want you to think that every incident receives a high statutory damage award or that these things are settled quickly.  Sometimes, the infringment is so innocent, with such little damage to an artist that all you want is for the infringing materials to be taken down. But in other cases, you’ll want to be reimbursed by the infringer for their actions.  In a scenario like the one here, a few statutory penalties may cause Shirts R Us to change their unscrupulous business practices. Any lawsuit is up to you as the client.   The point is, you are much more likely to have that choice if the infringement is a work with a registered copyright.  

So for 2014, let’s all do the prudent and simple thing; make a resolution to register our creative works with the Copyright Office.  Given how easy and inexpensive it is to accomplish, it shouldn’t be too hard to keep.

 

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

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