I am pleased to introduce a new series on the Myartspace Blog-- Art Space Law. In this series I will tackle various issues concerning art law. I will focus mainly on issues involving art law and the Internet. For this series I will ask professionals for their opinions. Gary Schuster, an attorney with Jacobowitz & Gubits, LLP (Walden , New York) has offered his time and knowledge about various laws concerning art. For the start of this series I will ask Mr. Schuster various questions about art law. Enjoy.
Brian Sherwin: Concerning copyright laws... my understanding is that a work of art is automatically copyrighted at the time of its creations, but there is still a burden of proof if at some point an issue over a piece goes to court. Some artists will document their work-- take dated pictures of the piece as it is being created and finished, place the pictures in an envelope, and mail it to themselves as a form of 'poor mans' copyright. Does the poor man method hold up in court? Or should artists be more serious about having their work legally copyrighted?
Gary Schuster: There are several good reasons to formally register your work, and as you say, one of them is evidence. How do you prove what you created, and when, and what it looked like? The certified mail method does provide some evidence of that and could hold up in court. However a clever lawyer could cast doubt and poke holes in that evidence. How do we know you (and not someone else) created the work that is in the envelope? Where has that envelope been since it was mailed and received? How do we know you didn’t steam open the envelope and replace the contents with something else? What if you lose the envelope, or your dog eats it? These are called "chain of possession" issues.
Formal copyright registration eliminates most chain of possession issues. When you submit a registration you must submit a copy of the work. That copy just sits there, undisturbed, in the vast files of the Copyright Office. There is no threat of steam, loss or dogs. When you get to court, the copy that comes from the Copyright Office is the strongest possible evidence.
Furthermore, the copyright law provides that a copyright certificate constitutes "prima facie evidence" of the validity of the copyright claim and of the facts stated in the certificate. That means there is a "rebuttable presumption" that your copyright is valid, and that you are the author of the work. You do not have to prove those facts at all. They are presumed. Instead your adversary has the burden of proving the facts are incorrect. That is a significant advantage that you would not obtain with the certified mail method.
There is more. You may not bring a copyright infringement lawsuit unless the work has been registered. Furthermore, if the infringement occurs before registration, you are limited to receiving your "actual damages". If the infringement occurs after registration you are eligible for "statutory damages", which can be both higher and easier to obtain. You will also be eligible to recover your reasonable attorneys fees and costs. Actually, the mere fact that you are eligible for statutory damages, attorneys fees and costs puts you in a stronger position in pre-litigation settlement negotiations. If all you can get is actual damages your settlement leverage is much reduced. With a law firm retainer of $5,000 or $10,000 or more for litigation, you definitely want to try to settle.
You get all this for just $45. Even so, I understand this can get very expensive when there are dozens or even hundreds of works to register. Ideally each work will have its own registration. However, you can also register a collection of works under a single title. The Copyright Office website has instructions and regulations on doing that. That is not ideal for the long term but it will serve in the short term.
The information in this article is for general information purposes only. It is not, nor is it intended to be, legal advice for any particular person or circumstance, or for Internal Revenue Code purposes as described in IRS Circular 230. This article is not a substitute for obtaining legal advice from an attorney based on your particular circumstances.
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