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  • Art Copyright Infringement and YourCreative Health



    Q: I'm getting ready to sue a person for blatant and willful copyright infringement of my art. He's using my images, but says he's not and refuses to do anything about it. I can't get anywhere by talking to him and I am so upset that I'm losing motivation to finish my art projects. I will follow the path of fighting for my copyrights, and am ready to hire a lawyer. What's the best way to do this?

    A: Step back and take a deep breath. Before you go legal, figure out what's at stake here and whether it's worth fighting for. You've been wronged, you're angry, you are suffering, your art is suffering, but that does not necessarily mean it's attorney time. This goes for you as well as any artist out there contemplating legal action on any aspect of copyright infringement.

    Hiring a lawyer and fighting an infringement case in court is all about money. It's not about pride or ego or emotion or other intangibles. Unless you have unlimited funds or believe your honor has a price tag and must be defended at any cost, you have to sit down with your abacus and get busy crunching the numbers. And even if the numbers add up in your favor, you still may not want to immerse yourself in the legal tar pit. Doing so is costly, monumentally time consuming, emotionally exhausting, and if that's not enough, detrimental to your art.

    To begin with, a decent arts attorney can cost $2,000-$3,000 per day (and sometimes more). Unless you're losing that kind of money, or the person infringing on your copyright is making or stands to make that kind of money by marketing pirated images of your art, or you have a history of selling images of your art for thousands of dollars or more each, stop right here and go no further. Hiring an attorney makes no sense. In fact, the overwhelming majority of infringement cases involve far less money than is cost effective to fight legal battles over.

    Let's say, however, that you think you're losing thousands of dollars or more. Are you really? Can you prove it? Let's do a little math and see...

    Can you show that before the infringement you were selling x pieces of art per month or year or whatever for a grand total of y dollars? Since the infringement, can you show that your sales have decreased by z dollars? Can you show that the decrease totals thousands of dollars or more? Or can you show that the person who stole your images is making thousands of dollars or more by using them? Or can you show that he should have paid you thousands up front just like other people pay to use your art? You have to substantiate any or all such claims with receipts, sales records, tax returns, and similar income-related documents in order to have a case.

    Let's say you have the documents to prove you're losing thousands of dollars or more. Now you have to prove those losses are a direct result of your images being stolen and marketed without your permission. You also you have to prove that the infringed images are yours, that you came up with them before the infringer did, and that the infringement is so obvious to a judge and/or jury, people who most likely know little or nothing about art, that they'll easily see you're right and will decide in your favor. If you get this far, you probably have a case. If you've got the money (or can find an attorney who's willing to take the case on a contingency basis) and are willing to endure the pain, you should probably hire an attorney.

    When the numbers don't add up, though, forget the legal stuff, and focus on the emotional component instead. You're pissed off and frustrated and you're threatening legal action based more on how you feel than on facts about the case. With not that much money involved, and the infringement not being a life or death matter, about all you have left is bruised ego and pride controlling your actions in counterproductive ways. That's not nearly as hard or expensive to deal with as hiring an attorney and going to court. So deal with it and get back to making art.

    But don't forget the infringement. Best procedure, regardless of the money involved, is to make clear to the offending party that they've infringed on your copyright, and that you'd like them to stop. Document all requests, correspondences, conversations, responses, and other relevant interactions. Make the offending party aware that you're monitoring the situation and documenting everything that happens. Perhaps they'll decide to back down; then again, maybe they won't. In any event, if at some later date the situation warrants legal action, you'll be more than prepared. In the meantime, don't let it eat you up.

    If you still have questions, contact your local or regional nonprofit lawyers for the arts; most states have them. For an affordable fee, you can sit down with an attorney, evaluate the legal basis of your claim, and decide how to proceed. Those of you in California can visit the California Lawyers for the Arts website at http://www.calawyersforthearts.org/. In other states, contact your local, regional, or state arts commissions for details on where to go for help.

    Two infringement anecdotes:

    * I was photographing an artist's work at a recent opening for possible inclusion in a review on my website. A woman describing herself as an "associate" of the artist came up to me and asked what I was doing. I told her, to which she voiced a concern over copyright infringement and started giving me a hard time. As a result of that conversation, I will never use images of this artist's work or mention her name in any art coverage that I ever do. And that's a promise. Recommendation: Invoking the legal system in any way shape or form is a monster no-no unless the threat is real and it's costing you big money.

    * Sometimes copyright infringement can be good for an artist and taking legal action against it can be not so good. Several years ago, for example, an artist saw one of her paintings hanging on the set of a popular television show. Instead of being thrilled and delighted, she sued the show's producers based on the fact that they did not ask permission to use her art. She won, but did she do the right thing? Legally, the show's producers were in the wrong and should have asked to use the art. They were not using it to make money, though, and one could argue that they were actually doing the artist a favor by exposing her art to a national audience and honoring her accomplishments. They could have just as easily hung a department store print on the wall instead. So as a result of this judgment, do you think producers are now more or less likely to show the work of living artists on the sets of their shows or movies? I'm thinking less.

    Disclaimer: I am not an attorney and this article is not to be construed as legal advice. If you have questions involving legalities or the law, contact an attorney.

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