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Four Ways Copyright Law Hurts Visual Artists

Copyright Law

As both lawyers and artists, Art Law Journal contributors stay abreast of developments to copyright laws, including the ways the existing laws could harm artists. But laws that were designed to protect artistry and the freedom of creative expression can often be interpreted as benefiting corporations and big business instead of individual artists, which in turn creates a monopoly that significantly weakens the profitability artists have over their work. Existing copyright laws seem overly burdensome on ordinary citizens, yet alarmingly simple to avoid for major social media companies like Facebook and Instagram. With so much blatant, illegal file-sharing happening across the internet, it seems that artists and creatives should have someone to hold responsible for the appropriation of their creative work.

Possibly even more troubling, sometimes the people that artists and creatives hire to help them take care of defending copyright lawsuits engage in practices that wind up being detrimental to the people they’re supposed to represent, while also harming the copyright law model as a whole. In recent years, shady practices surrounding copyright laws have become more widespread, and many wonder whether these practices are harming the business of upholding and defending copyrights for lawyers and artists alike.

While it’s unlikely that copyright laws will change significantly in the coming years, its important for artists to be aware of the ways in which the current system can sometimes fail you. Read on to learn five crucial points for avoiding any trouble – and getting compensated for your own troubles – with copyright law.

Copyright law is no-fault

Copyright law gives artists and makers a powerful set of rights which they can use to ensure their profitability, but being careless with other people’s creative work can often result in some serious repercussions for the artist. A copyright holder has the exclusive right to reproduce the work, prepare derivative works based upon the original work, distribute copies to the public, publicly perform the work, publicly display the work, and digitally transmit sound recordings of the work. These rights are exclusive, meaning that anyone who takes it upon themselves to share your work or use it in some unauthorized way has infringed on your copyright, and is, therefore, liable to you for monetary damages.

Sounds great, right? Kind of. Copyright is a two-way street, and it’s also no fault: just like anyone who infringes on your copyright would be held liable for damages, so would you. And whether or not you “knew” that the copyright belonged to someone else is entirely irrelevant. This rule can be especially dangerous for artists or creative who blog – use someone else’s image without permission, and you could find yourself in trouble. Unfortunately, the fact that copyright law is no-fault is often unfair: for example, even if you legitimately purchased a photo from a stock photo site, if it’s found that the image was purchased by the company from someone who had stolen the photo, both you and the stock photo site are liable for damages.

Copyright lawyers sometimes go straight to settlement without looking at the facts

Lawsuits against file sharers are commonplace in the United States, but its assumed that the attorneys who defend artists and creatives who inadvertently shared copyrighted material are doing so in the best interests of their clients. But in a recently published article by Torrent Freak, well-known intellectual property attorney, Robert Cashman expressed his concerns over a trend wherein defense attorneys partner to create “settlement factories.” for copyright law cases.  These attorneys essentially settle cases without making any effort to determine whether or not their client is actually at fault.

These attorneys attract leads using Google AdWords and then convince respondents to work with them to settle their claims. These attorneys can offer their services cheaply because they’re running a volume-based business, wherein the goal is to attract and convince as many customers as possible to go straight to settlement instead of trying to defend any claims. Once they’ve attracted the customer, they spend only a few minutes reviewing the case, because they’ve already prearranged with the plaintiff attorney to settle claims for a certain amount using a boilerplate contract. All too often, this results in higher settlement amounts which sets a precedent and drives up costs for anyone who might be faced with a copyright claim.

If you’re faced with a copyright lawsuit, it’s best to go with someone you know. Contact Art Law Journal or the EFF for trustworthy attorneys.

DMCA safe harbor keeps social media giants virtually blameless

We spend a lot of time talking about the DMCA safe harbor here on Art Law Journal, but that’s because its blanket protection for major social media sites with deep pockets is pretty astounding. Under the Digital Millennium Copyright Act, internet service providers are protected from copyright liability if they meet specific requirements, including whether they passively engage users, whether they have a direct financial benefit from the copyrighted work, and whether or not they knew the material was infringing. If they end up finding the material is in fact protected by copyright, and then they must follow a framework for responding to the copyright owner’s request to take the content down.

So for instance, YouTube is often protected from being held liable for copyright infringement because it doesn’t charge its users a subscription fee, it doesn’t review or promote the content they post, and it responds promptly to takedown notices. But there are various issues with this kind of model. First, it puts an overwhelming burden on the owner of the copyright, since neither the website nor the poster is required to verify the origination of the content. Second, the takedown notice only delays the potential for a copyright lawsuit, since the infringing poster can respond with a put-back notice, without having to prove that they have the right to post and distribute that content. This means the only way a copyright holder can regain ownership of their work product is through a lawsuit, which may be prohibitive due to legal fees and court costs.

Unlike musicians, artists don’t receive royalties for their work

Royalties allow musicians who own the copyright in their work to benefit from royalties every single time their song is used in a film, performed in play, or heard on the radio. It’s easily tracked via organizations like ASCAP and allows musicians to benefit from their creative works even long after they’re dead. But such a scheme does not exist for artists – once their artwork is sold, the artist receives no further income or royalties. The artist will expend resources and time on not just improving their art, but also promoting their brand.  If through hard work and determination, the artist gains notoriety and popularity, the value of their artwork will increase. However, the artist only receives a benefit from new works.  Any increase in the value of previous works benefits only the collector while the artists receive no resale royalties.  A while ago we discussed the possibility of copyright law reform that would allow artists to claim royalties on their work. Under that structure, an artist would be entitled to a 3-5% gain every time the work is re-sold.

It’s hard to say whether or not there’s a way to remedy this situation without some serious reform to the rules, but a good solution might be to track and maintain a relationship with the collectors of your works, so that you can document the work’s increase in value and later lobby for a larger profit.

About the author

Nicole Martinez

Nicole is a writer and law school graduate with a dedicated focus and passion for the arts, and a particular interest in Latin American art and history. Nicole has extensive experience working with art galleries and museums in Buenos Aires and Miami, and explores cultural landscapes across the Americas through her writing.

You can e-mail Nicole at nicole@orangenius.com.

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