Good Business Practices: Protecting Your Artwork On The Internet

With today’s technology, artists are no longer constrained to showing their work in galleries. Exhibiting your art on the Internet literally opens up a whole world of potential clients. But at what risk? The Rickie Report welcomes Attorney Matthew Harrison, as he writes this Guest Column about protecting your artwork on the Internet.  Matthew Harrison is a leading expert on the legal issues regarding photography and other visual arts. His specialties include copyright and trademark matters, release forms, and the potential legal pitfalls of using the Internet for self promotion. While he maintains a practice in Massachusetts, all of the topics written about either apply nationally or are specifically written for the Florida artist.  

 

 

THE INTERNET AS A DOUBLE EDGED SWORD:

Protect yourself while getting the most out of the promotional opportunities

By Matthew B. Harrison, esq.

 

How many of you display your work on your own website? Facebook? Tumblr? Pinterest? Twitter? Instagram?

 

 

 

The Internet can be an amazingly inexpensive way for you, as a artist, to 1) be able to showcase your work and 2) hopefully bring in potential business through these self-promotional efforts. However, before you run out and post your work everywhere, I would like you to think about protecting yourself and your property, so that you do not end up falling into the group that answers affirmatively to the next question.

 

 

 

Of those who do display their work online – how many of you have had the pleasant experience of surfing the web and seeing your artwork somewhere without your permission? It may not happen for all artists… but it happens to visual artists more than any of us would like to admit. You need to be aware of this phenomenon so that you can adequately protect yourself.

 

 

As a point of reference, this article is about non-commercial use of the image by an unauthorized party as opposed to a commercial use. Unauthorized commercial use is an entirely different animal and may be outlined in future articles.

Here’s one example… shifting point of view to the viewer.

 

Pretend for a minute that you are not the intelligent and informed reader of The Rickie Report that you are, but instead are “my cousin Vinny.” While he may think he is of sound legal mind, he is not a lawyer. He’s just a normal guy who doesn’t really know much about anything – and even less about technology. He may know what a computer is – but his main purpose for using it is the access to free adult material.

 

 

So while I can write about copyright protection until the cows come home, and declare by edict that materials on the Internet cannot be used without permission – do you think that “my cousin Vinny” is going to listen to what I am talking about – let alone follow by my words? Not a chance – even if I had a scantily clad model holding up a giant sign.

 

 

But Vinny! You are committing a copyright violation by taking that image off someone else’s website and posting it on your page – or sending it out via email to your buddies – or even using it on your desktop as a background image. His actual response: (after the shut up kid… you bother me) “Hey… I got it for free on the Internet… If they didn’t want me to have it, why would they put it out there?”

 

What Vinny is trying to get at is a fair use argument. Does his justification have merit? Perhaps. That’s a simplistic look. It gets complicated. What about the budding photographer who shoots a wedding inexpensively thinking that some of the cost will be made up in print sales, and the bride and groom don’t order prints and take the web sized proof images that they feel they paid for and put them all over Facebook.

 

Is it appropriate to put online / social network usage as a separate line item in an invoice?

What is fair use?

 

 

Fair use is a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism. For example, if you wish to criticize a novelist, you should have the freedom to quote a portion of the novelist’s work without asking permission. Absent this freedom, copyright owners could stifle any negative comments about their work.

 

 

So what is Fair Use? The only guidance is provided by a set of fair use factors outlined in the copyright law. These factors are weighed in each case to determine whether or not a specific use qualifies as a fair use. For example, one important factor is whether the potentially infringing use will deprive the copyright owner of income. It seems straight forward, but unfortunately, weighing the fair use factors is often quite subjective. For this reason, the fair use road map is often tricky to navigate.

 

 

The Fair Use statute: The doctrine of fair use developed over the years as courts tried to balance the rights of copyright owners with society’s interest in allowing copying in certain, limited circumstances. This doctrine has at its core a fundamental belief that not all copying should be banned, particularly in socially important endeavors such as criticism, news reporting, teaching, and research. Under the Act, four factors are to be considered in order to determine whether a specific action is to be considered a “fair use.”

 

 

These factors are as follows:

• The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
• The nature of the copyrighted work;
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• The effect of the use upon the potential market for or value of the copyrighted work.

 

 

So getting back to Vinny – if a work is freely available on the internet – making a copy will have little or no effect on its market simply because no commercial market for the work has been established or claimed… and that is not good for the photographer or artist who gets ripped off from someone like Vinny. It means that as long as you were not selling the particular image copied (in the form that was copied) whoever did the copying has a pretty strong argument for a fair use defense.

 

 

Getting back to the Facebook example – if a person’s usage is only on their Facebook profile, and it’s the same web sized image that had been presented to them as a proof, it would be hard to argue that the intent was copyright protection. So how do you protect yourself from falling into the trap of a fair use argument?

 

 

While I hate to say this because as an artist myself the following advice pains me…

An artist NEEDS to identify their work and claim the value of it on their website. One way to identify the owner of the work is to watermark the image; and if you really want to protect yourself at the cost of devaluing the overall aesthetic of the image – the watermark should be towards the center of the image so that it cannot be cropped off. By doing this – it is painfully obvious that the work belongs to someone.

 

By offering licensing to use the image, or making the image for sale in the form of a print on your website, you are evidencing actual financial value to the image on the site – and to any reproduction made by the image. This will, in the least, provide you with an argument against a proposed fair use defense that an infringer may have.

 

 

Matthew B. Harrison, an entertainment and media attorney, is a senior partner with the Harrison Legal Group based in Springfield, Massachusetts.

He can be reached by phone at 413-565-5413 or e-mailed at matthew@matthewharrison.com.

You can also see some of his adventures and explorations with fine art photography at filmandvinyl.com   

He can be reached via the web @photosandthelaw.com

 

 

For coverage of your events, to place an advertisement, or speak to Rickie about appearing in The Rickie Report, contact:

Rickie Leiter, Publisher

The Rickie Report

P.O.Box 33423

Palm Beach Gardens, FL 33420

Rickie@therickiereport.com

561-537-0291

Your Legal Rights: Copyright Law

Is the image you are painting yours or does it belong to someone else?  What about a photograph you put up on a website?  The Rickie Report welcomes Attorney Matthew Harrison, as he writes this Guest Column about Copyright Law and Intellectual Property.

 

©

Matthew Harrison is a leading expert on the legal issues regarding photography and other visual arts. His specialties include copyright and trademark matters, release forms, and the potential legal pitfalls of using the internet for self promotion. While he maintains a practice in Massachusetts, all of the topics written about either apply nationally or are specifically written for the Florida artist.  
He can be reached via the web @ photosandthelaw.com

 

Copyright law protects your intellectual property immediately upon the fixation of a creative work in a tangible form. However, in many circumstances it is desirable to additionally register your works with the United States Copyright Office; especially if you want to maintain the ability to sue for significant damages.

 

Although copyright attaches to a particular work upon its fixation in a tangible media (a tape, a CD, a file, etc.), you cannot actually sue someone for infringing your copyright until you have registered your work with the Copyright Office. One can always register the copyright just prior to suing, however there is a major advantage to registering the copyright within three months from the date of first publication, or at least prior to the date of infringement: The ability to collect statutory damages. If you do not register your copyright within three months of initial publication, or before the date of the infringement, one would only be eligible for actual damages –– which are difficult to prove and may only be nominal in amount.

To see how this plays out, assume that I have created an amazing photograph and posted it on a website without registering the copyright. Since the photograph is an original work fixed in a tangible form (a viewable file) it is protected by copyright. Therefore, if someone from another website comes and copies the file and places it on their website, my copyright has been infringed. In order for me to sue, I need to register the file with the Copyright Office.

 

Assuming that the infringing website doesn’t have any valid defense –– such as fair use –– then I would be able to collect my losses, plus any profits that the infringer accrued by virtue of the infringement.

 

What are my losses? It is easier to determine the value of the loss when such artwork is only available for hire or license, rather than photos that are freely available. How does one prove the value of the harm? What if the infringing website isn’t profiting from the infringement? Additionally, I would end up paying my attorney’s fees.

 

However, if I had registered this program within three months of its first publication, then I would be able to recover statutory damages in lieu of my virtually non-existent actual damages.

 

If the court finds that as long as the infringement was not committed willfully, the penalty per instance of infringement is between $750 and $30,000. However, if the court determines that the infringement was committed willfully (i.e. it was taken off your website and had any identifying owner information removed), the court may increase the award of statutory damages to a sum of not more than $150,000. Additionally, the infringing party also pays for attorney fees and court costs when infringement is willful.

 

Filling out the forms online can be complicated and it is recommended that you contact a licensed attorney in your state to assist with your registration process.

 

Matthew B. Harrison, an entertainment and media attorney, is a senior partner with Harrison Strategies, LLC based in Springfield, Massachusetts. He can be phoned at 413-565-5413 or e-mailed at matthew@matthewharrison.com.

 

For coverage of your events, to place an advertisement, or speak to Rickie about appearing in The Rickie Report, contact The Rickie Report at:

Rickie Leiter, Publisher

The Rickie Report

P.O.Box 33423

Palm Beach Gardens, FL 33420

Rickie@therickiereport.com

561-537-0291