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Art Copyright Infringement

And Your Creative Health

Q: I'm ready to sue someone for blatant and willful copyright infringement of my art. They're using my images, but say they're not and are refusing to do anything about it. I can't get anywhere by talking to them and am so upset that it's distracting me from making new work. I want to fight for my copyrights, and am ready to hire a lawyer. What's the best way to do this?

A: Not so fast. Before you go legal, figure out what's really 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 taking legal action on any aspect of copyright infringement.

For starters, hiring a lawyer and fighting an infringement case better be about money, and lots of it. Don't make it 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'd better sit down and figure out exactly how much money is involved. Even if the numbers add up in your favor, you still may not want to get tangled up in actions that can take months or even years to resolve. Fighting any kind of legal battle is costly, monumentally time consuming, emotionally draining, and if that's not enough, may also be detrimental to your art.

A good arts attorney can cost anywhere from $2,000-$3,000 per day (and sometimes more). If you're making that kind of money selling your art, or the person infringing on your copyright is making or stands to make that kind of money by marketing pirated works of your art, or you have a history of selling the specific infringed artworks for thousands of dollars or more each, then hiring an attorney may make sense. If you're not, stop right there and go no further. The truth is that the overwhelming majority of infringement cases involve far less money than is cost-effective to fight over.

Let's say, however, that you seriously believe you're losing thousands of dollars or more as a result of the infringements. 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 your infringed art regularly for significant amounts of money? Since the infringement, can you show that your sales have dropped or are down and by significant amounts of money? Can you show that your sales decrease totals thousands of dollars or more? Can you present evidence that the person who stole your images is making thousands of dollars or more by using them? Or can you prove that they should have paid you thousands up front just like other people pay for rights to use images of your art? You'd better be able to substantiate any or all such claims with receipts, sales records, tax returns, and similar income-related documents in order to move forward.

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 and that you came up with them before the infringer did. If you've registered the copyrights of the art in question, you're in good shape. If not, that may make your case more difficult, costly, and time-consuming to prove.

Assuming you have all this information, can you show 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? That the art or images they're selling look the same or really similar to your art? 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 inconveniences, you should probably hire an attorney.

If the numbers don't add up, maybe forget the legal stuff and think about the emotional component instead. If you're angry and frustrated, and threatening legal action based more on how you feel than on how much money is involved, it may make more sense to move on than to prolong the misery. That approach is not nearly as difficult or costly as hiring an attorney or going to court. Maybe it's better to let it all go and get back to making art.

But you may still have at least some recourse. Regardless of the money involved, make clear to the offending party that they've infringed on your copyright, present your evidence, and ask 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 keeping detailed records everything that happens.

Assuming you have good, solid, well-documented proof and evidence of the infringement, you might take this a step further by publicizing the incident(s) on social media. Calling attention to the infringer may put enough pressure on them to change direction or otherwise work to resolve the situation. Again, save all posts, comments, conversations, and contact information that results from the publicity. Maybe in the end they'll 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 to proceed.

Regardless of what happens, you can at least achieve a partial remedy by filing what's called a Digital Millenium Copyright Act (DMCA) Takedown Notice. By submitting this notice, you can require websites or platforms posting infringed images of your art to remove them. Find out more about how these notices work and how to submit them by reading DMCA Takedown Notices for Artists

If you still have legal 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 https://calawyersforthearts.org or if you're in New York, contact Volunteer Lawyers for the Arts at https://vlany.org. In other states, contact local, regional, or state arts commissions or organizations for details on where to find legal help.

One final consideration here is that taking or even threatening legal action can sometimes have unintended consequences. Here are a couple of examples how:

* I was once photographing an artist's work at a public opening for possible inclusion in a review on my website. A person describing themself as an "associate" of the artist came up to me and asked what I was doing. I told them, to which they voiced a concern over copyright infringement and started giving me a hard time. As a result of that conversation, even though photographing at a public event purely for review purposes is not infringement, I stopped photographing and left. Why take the risk? Why risk ever using images of this artist's work or mentioning their name in any art show coverage ever? Always remember that invoking the legal system in any way shape or form is a really bad idea unless the threat is real and it's costing you money. Here, the only cost was the free publicity the artist would have gotten if their so-called associate hadn't stepped in and started making threats.

* Sometimes copyright infringement can be good for an artist while taking legal action against it can be not so good for everyone. I can recall two distinct situations where artists saw their art hanging on the sets of popular TV shows. Instead of being thrilled and delighted with the exposure, they took legal action against the producers claiming that they did not give permission to use their art. Yes they were in the right, and yes they won, but that's not the end of the story.

Legally, the show's producers were in the wrong and should have asked to use the art. But for whatever reason, they didn't. They were not using it to make money, and one could argue that they were actually doing the artists favors by exposing their art to national audiences and honoring their accomplishments. They could have just as easily hung public domain images instead, or no art at all. The upshot? Word about these kinds of legal actions gets around. And do you think producers today are more or less likely to show art by these or any other living artists on the sets of their shows? Probably less. Once again, why take unnecessary risks? As a result, artists everywhere end up getting fewer opportunities to expose their work.

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.

(sculpture by Robert Therrien)