Do You Register Your Copyrights?

Rhapsody in Spring – Infringed painting

Rhapsody in Summer – Brusho Full sheet – SOLD

 

 

 

 

 

 

 

 

Once upon a time, I had an image “misappropriated” by a major online art supplier to accompany their launch of a new watercolor pigment product line, Brusho® Watercolour Crystals. Two years prior to the misappropriation, I had painted a series of paintings with the product.

Brusho® had really just been introduced to U.S. markets a few years prior. I learned of it through Joanne Boone Thomas and Art Tutor based out of England. Brusho® is a crystalized ink powder that can be painted similarly to traditional watercolor. All the pigment colors are quite brilliant by comparison… Imagine having all your watercolor pigments with the intensity of Phthalocyanine Blue and you will have a good idea of how to paint with Brusho. All the pigments are brilliant, saturated, staining colors.

Rhapsody in Fall – Brusho Full Sheet – SOLD

All of the major U.S. online retailers began stocking the Brusho pigment around 2015. Before then, I purchased my pigment through the British supply company, Colour Craft.

I imagine that in the early days of 2015, U.S. retailers may not have had access to many paintings created with the new medium. This particular online retailer likely decided to do a google search for examples of such and stumbled across an image of mine posted on “the Internet” somewhere.  I learned my image was being used to advertise the product from a friend who forwarded me one of their marketing emails. She forwarded the email with the comment, “Colleen, you’re famous!”

I suppose I could have been flattered? And welcomed the promotion? Instead, it sort of rose my self-righteous ire. After all, they did not even have the courtesy to ask my permission! I contacted the company’s customer service department via chat, referenced the marketing email, and asked if they knew the artist who had created the painting. They told me the in-house art department had created both paintings! I said, “That’s interesting because I am actually the artist who painted one of them.” Oops!

Upon further inspection, I also discovered the image of my painting had been cropped just so, preserving the original height to length dimensions, but enough to crop off my artist’s signature. “Malicious Intent!” My ire rose even more (as you might imagine). I asked to speak to the “boss.” The head of the marketing department eventually called me back, admitted to the “error” by a “new employee” and offered me a $100 gift certificate to purchase more art supplies from them. So then I was insulted. I contacted a lawyer who helped me draft a letter requesting damages for copyright infringement, which of course they ignored. Because, well, I had not registered the painting with the copyright office, had I? The Marketing Director likely knew a poor starving artist was not going to go through the time and expense of filing a lawsuit against a big corporation like Jerry’s Artarama.

Cropped by Jerry’s Artarama

Full painting

Four years later and it still rankles enough for me to recall all those details. Grrr!

Since then, I have educated myself on copyright law a bit. I have learned about many of the misconceptions we artists have.

  1. Yes, we automatically own the copyright as soon as the art takes its final shape.
  2. No, we don’t have to file a copyright claim in order to have the art named as our own.
  3. There is no such thing as the “if you change it by 20% or more, you can call it your own” rule.
  4. Using a photograph as a source for a painting without permission is a copyright infringement.
  5. You do not have to place the © and year on the front of your painting for the copyright to be valid. Conversely, doing so does NOT mean you’ve properly claimed copyright. The claim still must be filed with the copyright office.
  6. Most countries also honor U.S. copyrights.
  7. Posting an image online does not mean you’ve “published” a work IAW copyright law.
  8. If I take a commission, the customer requesting the commission owns the copyright, not me.  A commission is considered “work for hire.”
  9. If I teach a workshop and the workshop host records video, the host owns the copyright to the video, not the instructing artist. See #9 above.
  10. So much more stuff, too lengthy to mention. You think I write too much? Try reading lawyerly stuff.

BUT… if one is “violated” (infringed) without copyright registration, one can’t even file a suit until one DOES register the copyright, and one can only receive damages (actual losses) if the image is infringed BEFORE the copyright claim is filed. AND one has to hire a lawyer to litigate, which costs about $100K-$150K, not to mention pay all the court costs and travel to DC, etc. Most lawyers will not even deign to consider taking your case, ’cause it is a losing proposition.

If you DO register your copyright and it is subsequently infringed, you are entitled to $150K PLUS damages, and lawyers will actually be willing to represent you on a contingency basis (you don’t have to pay them until after the verdict) because you’re likely to win! And win quickly.

Since 2015, I have therefore given much time, attention and resources to filing copyright registrations for my “important” published and unpublished works.

The law changes often. Keep up. For instance, until March of this year, I could register a group of unpublished paintings (up to 750) for one fee of $55. Since March, now I can only register 10 unpublished works for the $55 fee. That is what I get for procrastinating, huh?

The basic things to know if you decide to register your work:

  1. The website to register copyrights online https://eco.copyright.gov
  2. Learn the difference between published and unpublished works. It is important.
  3. The fee to register a single work (published or unpublished) is $35
  4. The fee to register a group of unpublished works in $55 (up to 10)
  5. The fee to register multiple published works in one filing is $55. In order to file multiple published works in one filing, all works must be part of a set and not available separately. For instance, 12 images that are part of a calendar can be registered as multiple published works for one filing fee. But all works created for one show cannot (contrary to my expensive lawyer’s advice. Grrr).
  6. Ask for help if you don’t know. Once a copyright claim is filed, there are no refunds. Errors can get expensive. I have found the employees to be quite helpful, if not prompt.
  7. If filed correctly, it takes between 30 and 180 days for a claim to finalized. However, see items #8 below.
  8. If an infringement occurs, the court will consider the date when the claim was filed, not the date the claim was finalized. Remember if infringement occurs BEFORE the copyright claim was filed, the artist is only entitled to damages, not the $150K fine.

The “infringed” painting “Rhapsody in Spring” is available through my local gallery, Artsy Fartsy Art Gallery, in Carson City. Why not join me for my featured artist’s show from mid-June through mid-July 2019? Artist’s reception on July 18th, 4-7pm. The gallery is located at 405 N. Nevada St, Carson City, Nevada. You can see my “famous” painting!

I appreciate all comments, questions, and suggestions. Thank you for stopping by.

 

2 thoughts on “Do You Register Your Copyrights?

  1. Lisa J. Cihlar

    I have a question. What do you think about a painter using another painter’s method? Example: painter A uses a rolling pin to spread a first layer for an under painting. Painter B sees this on YouTube and uses this method for her own painting. One paints a cityscape, the other a country landscape. Do you think there would be any copyright infringement here? Should painter B acknowledge the idea?

    Reply
    1. Colleen Post author

      Hi Lisa, Thank you for your comment. I apologize for the tardy response. I just found the notification in my junk mail! What!? I’ll have to fix that, huh?

      To your question… Processes fall under patent law rather than copyright law. If Painter B is using a process to create an entirely different image there should be no copyright infringement. I watch a lot of videos on how to use a brush in watercolor, to make washes, to paint calligraphy strokes… If I am interpreting a process, not an artist’s work, there is no copyright infringement. As to patent law? I doubt that a painting or printing process can be patented… A brush, a palette, an easel… yes… but how to paint or print.. nah… don’t think so.

      Reply

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