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Jun252010 | Steve O'Donnell

When the "little guy's" copyright is infringed

This morning @TimothyPONeill on Twitter pointed out at article that referenced a website that highlights a few cases of small artists getting their work infringed by bigger fish. Uff-da, how’s that for full disclosure? Why yes, I am originally from Minnesota, why do you ask?

Take a second and look at some of the examples listed at the well named You Thought We Wouldn’t Notice. Note that these are reports originating from the artist themselves, and not necessarily someone that knows anything about copyright law. Some of the examples are just as likely coincidences as they are infringements, a few probably wouldn’t survive a motion to dismiss, but others, well some of them are simply blatant copying.

What is an independent artist to do when some thing like this happens? Well, honestly, for most, there isn’t much to do. If the copyright isn’t registered, damages are probably limited to actual damages and an court order telling the infringer to stop. For most cases, it probably doesn’t make economic sense to sue on an unregistered copyright.

There are still a couple ways to address the issue. Sometimes the infringement was a mistake (believe it or not, that happens) and other times the company also got ripped off by someone claiming to be the artist. In that case, a letter explaining the issue will probably result in some relief, or at least a check. If that doesn’t work, one might be able to pressure the company through some online forum, blogging, Twitter, etc and drawing attention to their infringing activity. Other than that, options are slim.

On the other hand, registering a copyright is fairly straight-forward and rather reasonably priced. Doing that gives an artist a lot more power when it comes to dealing with an infringer because instead of just actual damages (which can be an immense pain to prove) and an injunction, registration allows one to opt for statutory damages. Lets say some company takes a photo, puts it on a t-shirt and sells 100 shirts at $20 each. For actual damages the artist may have to demonstrate what percentage of the $2000 in sales was due to the infringed work. If we’re looking at statutory damages, the calculation is between $750 and $30,000 (possibly up to $150,000) PER infringement. So those 100 shirts are likely going to cost the infringer a lot more if the case goes to court.

I know which position I’d want to be in if I was suing an infringer.

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Jun252010 | Steve O'Donnell

When the "little guy's" copyright is infringed

This morning @TimothyPONeill on Twitter pointed out at article that referenced a website that highlights a few cases of small artists getting their work infringed by bigger fish. Uff-da, how’s that for full disclosure? Why yes, I am originally from Minnesota, why do you ask?

Take a second and look at some of the examples listed at the well named You Thought We Wouldn’t Notice. Note that these are reports originating from the artist themselves, and not necessarily someone that knows anything about copyright law. Some of the examples are just as likely coincidences as they are infringements, a few probably wouldn’t survive a motion to dismiss, but others, well some of them are simply blatant copying.

What is an independent artist to do when some thing like this happens? Well, honestly, for most, there isn’t much to do. If the copyright isn’t registered, damages are probably limited to actual damages and an court order telling the infringer to stop. For most cases, it probably doesn’t make economic sense to sue on an unregistered copyright.

There are still a couple ways to address the issue. Sometimes the infringement was a mistake (believe it or not, that happens) and other times the company also got ripped off by someone claiming to be the artist. In that case, a letter explaining the issue will probably result in some relief, or at least a check. If that doesn’t work, one might be able to pressure the company through some online forum, blogging, Twitter, etc and drawing attention to their infringing activity. Other than that, options are slim.

On the other hand, registering a copyright is fairly straight-forward and rather reasonably priced. Doing that gives an artist a lot more power when it comes to dealing with an infringer because instead of just actual damages (which can be an immense pain to prove) and an injunction, registration allows one to opt for statutory damages. Lets say some company takes a photo, puts it on a t-shirt and sells 100 shirts at $20 each. For actual damages the artist may have to demonstrate what percentage of the $2000 in sales was due to the infringed work. If we’re looking at statutory damages, the calculation is between $750 and $30,000 (possibly up to $150,000) PER infringement. So those 100 shirts are likely going to cost the infringer a lot more if the case goes to court.

I know which position I’d want to be in if I was suing an infringer.

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