Stealing Images Online… and other Copyright Issues
The internet has created opportunities that visual artists would not have had in the past. However, with internet driven opportunity comes the need for greater responsibility-- artists need to be prepared to protect their art if a company or individual infringes upon them. It goes without saying that visual artists who utilize the internet for gaining exposure are faced with this burden. That said, it is a necessary burden. The rewards of online exposure outweigh the risk-- and with proper documentation the risk, under current copyright law, could very well become a reward if your art is infringed upon.
Dion at Art News Blog recently posted a blog entry, titled ‘Stealing Images Online‘ , that reminded me of some of the opinions that Gary Schuster, an attorney with Jacobowitz & Gubits, LLP (Walden , New York), stressed on the Myartspace Blog with the Art Space Law series. Mr. Schuster covered various topics, such as the legal aspects of image theft, copyright infringement, appropriation art, derivative works, copyright law, fair use, and image manipulation / alteration. Thus, I feel that it is important to highlight these topics once again:
What you need to know about Copyright laws . In regards to copyright registration and cases of fighting copyright infringement Schuster stated, “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.”
Ripped and Altered? What You Need to Know . In this entry Schuster discussed copyright infringement-- among other topics. Concerning copyright infringement Schuster stated, “Contrary to urban legend, there is no particular percentage which needs to be reached in order to permit a finding of infringement. Generally the tests are (i) was there access to the first work, (ii) was there copying, and (iii) was the copying substantial…”
Schuster went on to say, “Generally it means that the infringer copied a substantial portion of the original work. It doesn’t have to be literal, word-for-word copying. The "total concept and feel" of a work can also be protected by copyright. This is one of those areas where it comes down to "I know it when I see it." One thing that can be said with certainty is that substantial similarity is a question of fact rather than a question of law. The jury will determine whether the two works are substantially similar.”
Concerning derivative works Schuster stated, “A derivative work is, quite simply, one work that is derived from another. So, for example, a film is derived from a novel. A musical is derived from a film. One of the exclusive rights that a copyright owner has is the exclusive right to prepare derivative works, and authorize others to. If you own the copyright in a painting you have the right to prevent others from creating other works, derived from your painting, without your consent.”
Imagine Fair Use . Schuster explored the issues surrounding fair us. He stated, “Fair use permits the copying and distribution of copyrighted material, without the owner’s consent, for purposes of criticism, commentary, news reporting, teaching, scholarship or research. Fair use is where copyright law gives way to the First Amendment guarantees of freedom of speech and expression.”
Schuster provided examples of the controversy that can arise over claims of fair use. In the article Schuster described three specific tests used to determine whether a claim of fair use is acceptable or not. He also stated that issues of this nature become one of Copyright vs. The First Amendment if they end up in court.
The advice that Mr. Schuster provided makes for a good read if you are interested in art law. However, his advice does come with a disclaimer-- 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.
As for me I can only say that at heart copyright law is an issue of respect .
Take care, Stay true,