Why I Can’t Always Help Artists (and How You Can Help Yourself)
Every week I get multiple emails or calls from artists of all types who have found that their work has been infringed. As a former commercial and fine art photographer, I know well the punch to the gut feeling that comes with seeing your work be stolen. And by the time you take the steps to contact an attorney, it is often weighing on you emotionally as well as financially. But here is the truth: I can’t help you if you haven’t helped yourself first. You have to register for your copyrights prior to publication or within three months after publication. Here’s why.
The Law Can Be Your Best Friend (or Worst Enemy)
Every day, copyright cases are brought on behalf of creators in federal court, and everyday there are victories for those creators. But the Copyright Act specifies two main types of remedies: actual damages and statutory damages.
Actual damages are those that the creator incurred due to the infringement like lost profit due to licensing agreements, loss of exclusivity, and other items like how much the infringer made from the work used. These are hard damages to prove, often needing the testimony of experts (at a huge cost). And for most online infringements, the actual amount of actual damages is quite low. So often the amount of actual damages is $20,000 or less.
$20,000 sounds like quite a bit of money, and it is, but right now if we were to bring a copyright case from the infringement all the way through a trial and verdict, most cases are costing more than $300,000 and taking at least 1.5 years. And that is before any appeals.
Here’s the rub: it is very hard for me to recommend that we pursue an infringer in court knowing that the creator will be out thousands of dollars even if we win. It is one of the hardest things I have to tell my clients. Not every wrong has a practical legal remedy.
But Wait, What Are Statutory Damages?
Statutory damages are the answer. The Copyright Act understands that in many cases the value of the actual damage makes it impossible for small creators to pursue infringements. So the law says that if you register your copyright BEFORE you publish the work, or within three months AFTER you publish the work, you are eligible for statutory damages of up to $150,000 per infringement even if there are no actual damages. What a great option!
This does, however, require that you are regularly registering your copyrights with the Copyright Office (copyright.gov). You can call an attorney to do this, but most creators can do this themselves right online. And the cost can be pretty low (think $65 for up to 750 pictures as an example). So if you registered all the works you created four times a year, then you would always be within that three month window. And you would always be eligible for statutory damages in the future.
Please register your works. Please. It allows me to help you and you will be so happy that you did.