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.

 

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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.

 

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