Hi again!

So this is a bit slimy-feeling to even mention it, but if we were to strive to get the best possible scenario and bang for our buck in protecting ourselves from an infringement, would it go something like this?

-- Register a ton of your unpublished images with the Copyright Office under the 'unpublished' category, garnering you a discounted registration fee of $30 for the maximum number of unpublished images submitted at the same time.

-- Once registered (i.e. once received by the Copyright Office, the next day if you sent it Fedex - longer if you send by mail, which you probably want to avoid these days because of irradiation and warehousing due to anthrax etc. scares), immediately offer these previously unpublished images on your website as stock images or on t-shirts, thus making these same images now 'published' versus just a 'public display' of your work on your website.

-- By now making them 'published' and them also being registered (good. grammar. not), they'd now be eligible for statutory damages and legal fees if a copyright infringement were to occur.

-- Place a copyright notice on EVERYTHING, with your email listed, and also on your site with a link to your email. This way if someone steals your image off your site and ignores the copyright warnings, you can easily prove "willful infringement" which would make them eligible for 'treble damages' or three times what you could have earned for the legal use of those images should it go to court.

-- Digimarc electronic copies of your work in Photoshop - I have to read up on this but I believe the IPA site has info on how to do it. (If anyone has a direct link let me know)

-- Put yourself on a monthly program sending in unpublished works for the $30/month, wait to receive confirmation from the Copyright Office that they received your package (your registration will be postdated to the date they received the package, no matter when they issue the final copyright certificate 800 years later and then immediately offer up all those same unpublished images as stock images on your website, now getting them classified as 'published' and eligible for those additional yummy statutory damages and legal fee reimbursements.

-- With any client commissioned work you deliver (if you work in Photoshop or scan your work to have it emailed) add a 1/4" white margin to one side of your image and add the copyright line and contact info with the text tool, specifying that they contact you for license usage. You might also want to specify that they include the info in your copyright line in the final printed piece (which they do anyway, but just in case) Make sure it's readable. Because it's off to the side of your image and strictly utilitarian looking, when they drop the image into a Quark layout etc. it won't affect the final image (it will be cropped out), and the client cannot claim they never knew whom it belonged to (not that they would, but corporations are big these days and things get emailed internally - if someone removes the copyright margin line, you can git'em later under the Digital Millenium Act($2500 extra!) if need be). Because they are listing your copyright info in the published piece, any consumer who steals the image would also do it knowingly.

-- Given this scenario, a potential infringer would only be able to steal the image knowingly, and by you being able to prove 'willful infringement' this way, you'd be eligible for 3x as much as if they can get away with claiming that it was an innocent infringement. We're not looking to entrap anyone here, just have all the ducks in a row for when someone does decide to infringe.

Also, I think a 'Neighborhood Watch' type arrangement would be cool -- what if we offered a finder's fee to anyone who came to us with proof that our images had been infringed, to help encourage reporting of infringements to the copyright owners?

I guess out of professional courtesy most of us would report something immediately anyway (I spotted an infringement of any artist's work I like on a clothing line in London over summer and am trying to locate the artist right now) but perhaps a little incentive might help us encourage students etc. to keep an eye out as well (and hopefully, by offering a nominal reward we would help make the point that copying is bad as early as art school, when it's still considered 'fair use' but so that students know the difference when they graduate).

Anyway, some thoughts on how we might put together a strong program to be protected...after reading how most of us on this site didn't know to register before an infringement happened (including me, aaah!), I think this could help us make some headway. Any ideas or comments welcome!

Feel free to email me directly if you'd like too - michiko@michiko.com

Hee hee,
Michiko


*ALL OF THE ABOVE IDEAS* AND TEXT COPYRIGHT 2002, MICHIKO STEHRENBERGER, michiko@michiko.com

hua ha ha



*"Ideas" being a joke, of course



Dear Bad Guys, please steal this, it's registered:

On 12/10/02 2:36:12 PM, Michiko Stehrenberger wrote:
>Hi again!
>
>So this is a bit slimy-feeling
>to even mention it, but if we
>were to strive to get the best
>possible scenario and bang for
>our buck in protecting
>ourselves from an
>infringement, would it go
>something like this?

Michiko, kindly take down this needless duplication of a thread you have already posted once.

I have addressed the errors in your scenario in your earlier post.  I strongly urge you to read that response, and several others I have provided you, and get your fixation with "publication" out of the mix.

__________________________
Daniel Abraham, Esq.

718-499-4006

DISCLAIMER: Material posted on the Legal Easel™ chatboard discusses general principles of law in response to issues of concern to the illustration community. Nothing in this website or the Legal Easel™ chatboard should be construed to be a substitute for advice of counsel regarding the specific facts and circumstances of an individual case. Laws and their interpretation differ from jurisdiction to jurisdiction. Legal advice addressing a specific situation should be sought from an attorney duly licensed in the appropriate jurisdiction.

NOTE: Anyone reading this who's confused - there are 2 of the same thread (my fault for accidentally posting twice) and Daniel's full reply is included in the first one, so you may wish to read that other thread first - thanks! With Daniel's permission we could re-post it here and eliminate that accidental first thread entirely, but I didn't want to do that without his okay. Thanks.










>Michiko, kindly take down this needless
>duplication of a thread you have already
>posted once.


Hiya Daniel!

It was an accident - I hadn't realized I'd posted it while I was still writing it, then went back to fix it but you'd already replied (wow, lightning fast! cool!) - so that's what I get for trying to do three things at once, including trying to trim kitty toenails before they can gouge out my lap, and other such professional matters of utmost importance. Then of course I had trouble logging back on so there was a delay, phht. Sorry about that!

Wanted to respond to this from the first thread - (scroll down)



Michiko wrote:>-- By now making them
>'published' and them also
>being registered (good.
>grammar. not), they'd now be
>eligible for statutory damages
>and legal fees if a copyright
>infringement were to occur.



Daniel wrote:

No.

Again you are focusing needlessly on "publication." Publication is important only in determining how you can register--group or not--and, if an infringement is at issue, whether you are registering within the first three months of first publication.

What is important is registration. Is it registered? Was it registered prior to the infringement. or within three months of first publication?

If you have registered prior to infringement, or within the 3-month first publication window in the case of infringements occurring within that window, you are eligible for statutory damages and attorney's fees. If not, no dice.



--

Okay, yes, I understand - but I'm not saying you can retroactively get an infringer here. I'm saying (and I hope you'd agree this is true?) that you can register new images prior to publishing them to get the 'unpublished' discount of $30 for the group.

Then, after you clear the Copyright registration a few days later (using your Fedex proof of delivery as your temporary 'registration date' which will appear on your registration certificate later) you 'publish' them on your site by offering them as stock, so that any potential infringements which occur would occur on work that is now 'published.'

I think you wrote that if an infringement occurs on work which has not been published, that the copyright owner would not be eligible for statutory damages and legal fees, and so based on that I was suggesting we could immediately offer up images as stock on our sites as a way to get them published right away (and eligible) as soon as they're registered.

I'm definitely referring to new images being registered, and of publishing them after the copyright registration is filed, to protect against infringements from that moment forward - so am I not understanding something here?

My focus on publication is because an earlier post of yours seemed to indicate that an image stolen that was never published (i.e. stolen from a self-promo piece, etc.) would not be eligible for statutory damages and legal fees, even if that image had been registered prior to the infringement happening.

Also, for those of us (I think there are a lot of us) who are deterred from registration because published images would need to be registered one at a time, for $30...and I'm trying to find a less intimidating way to register several at once, and at a 'discount' and it seems to make sense that registering a bunch of unpublished images at the same time would ease the process. Does that make sense?

Did I misunderstand somehow? That's why I've been focusing on the publication issue as it relates to eligibility for statutory damages and legal fees. Hope that makes sense.

Thanks!

Michiko

On 12/10/02 3:09:56 PM, Michiko Stehrenberger wrote:

>Okay, yes, I understand - but
>I'm not saying you can
>retroactively get an infringer
>here. I'm saying (and I hope
>you'd agree this is true?)
>that you can register new
>images prior to publishing
>them to get the 'unpublished'
>discount of $30 for the group.

Yes. Any images registered prior to publication--new or old, or both together, as long as all of them are unpublished--can be group registered, on a single form for a single fee.

>Then, after you clear the
>Copyright registration a few
>days later (using your Fedex
>proof of delivery as your
>temporary 'registration date'
>which will appear on your
>registration certificate
>later) you 'publish' them on
>your site by offering them as
>stock, so that any potential
>infringements which occur
>would occur on work that is
>now 'published.'

Correct.  Once you know the registration is in hand at the Copyright Office, you can publish them when and as you please, with the reasonable assumption that they are protected--the proof being when the certificate returns.

>I think you wrote that if an
>infringement occurs on work which has
>not been published, that the copyright
>owner would not be eligible for
>statutory damages and legal fees, and so
>based on that I was suggesting we could
>immediately offer up images as stock on
>our sites as a way to get them published
>right away (and eligible) as soon as
>they're registered.

Please note the correction in the self-promo thread, and my amplifications on the same theme in the duplicate of this thread.  Statutory damages can be claimed for:

1) Any unpublished work that has been registered prior to infringement;
2) Any published work that has been registered prior to infringement;
3) Any published work that has been registered post-infringement, provided that the infringement AND the registration occur in the three-month window following the FIRST publication of the image.

>I'm definitely referring to new images
>being registered, and of publishing them
>after the copyright registration is
>filed, to protect against infringements
>from that moment forward - so am I not
>understanding something here?
>
>My focus on publication is because an
>earlier post of yours seemed to indicate
>that an image stolen that was never
>published (i.e. stolen from a self-promo
>piece, etc.) would not be eligible for
>statutory damages and legal fees, even
>if that image had been registered prior
>to the infringement happening.

Note the previous part of my answer immediately above.

>Also, for those of us (I think there are
>a lot of us) who are deterred from
>registration because published images
>would need to be registered one at a
>time, for $30...and I'm trying to find a
>less intimidating way to register
>several at once, and at a 'discount'
>and it seems to make sense that
>registering a bunch of unpublished
>images at the same time would ease the
>process. Does that make sense?

Yes.  It makes sense to register as much unpublished work in a group as possible, and to go back and group-register old editorial work (contributions to periodicals) in one-year lots using a Form VA, Form GR/CP, a Form CON if you need more space, and a SINGLE $30 fee.

>Did I misunderstand somehow? That's why
>I've been focusing on the publication
>issue as it relates to eligibility for
>statutory damages and legal fees. Hope
>that makes sense.

I think the above should clear things up for you.

__________________________
Daniel Abraham, Esq.

718-499-4006

DISCLAIMER: Material posted on the Legal Easel™ chatboard discusses general principles of law in response to issues of concern to the illustration community. Nothing in this website or the Legal Easel™ chatboard should be construed to be a substitute for advice of counsel regarding the specific facts and circumstances of an individual case. Laws and their interpretation differ from jurisdiction to jurisdiction. Legal advice addressing a specific situation should be sought from an attorney duly licensed in the appropriate jurisdiction.

Okay, great! Sounds like we're pretty much in agreement here then, that as long as an image is registered PRIOR to infringement, you're eligible for statutory damages and legal fee reimbursements.

I'd added that extra step thinking it needed to be considered 'published' based on errant info (or my misunderstanding) in order to be eligible for stat damages and legal fees.

Therefore the above steps of 'publishing' images by offering them as stock is an unnecessary step for gaining protection, which is phew! what I'd originally thought the deal to be, before I got tangled.

I mainly just wanted to put out there the steps we can take to get ourselves in the habit of registering on a regular basis, since the recurring theme here seems to be us getting burned by an infringement that took place before we could get around to registering..

Just trying to lower the intimidation factor (which is something I needed -- took me 10 years to get here! he he



Hmm, have been reading through the Copyright site today though and though I seem to remember that if you can prove an infringement is 'willful' that you are entitled to 'treble damages' (i.e. 3x what you would reasonably have charged for the job).

Yet I haven't found that listed in the damages section of the law...I'll keep looking, but if I'm TOTALLY wrong here on that treble damages fact, or if I'm right and someone can point me to the URL where I can find it, I'd really appreciate it -- thanks!

M

On 12/11/02 9:28:56 PM, Michiko Stehrenberger wrote:
>
>Hmm, have been reading through
>the Copyright site today
>though and though I seem to
>remember that if you can prove
>an infringement is 'willful'
>that you are entitled to
>'treble damages' (i.e. 3x what
>you would reasonably have
>charged for the job).
>
>Yet I haven't found that
>listed in the damages section
>of the law...I'll keep
>looking, but if I'm TOTALLY
>wrong here on that treble
>damages fact, or if I'm right
>and someone can point me to
>the URL where I can find it,
>I'd really appreciate it --
>thanks!

Look at Section 504(c).  504(c)(1) covers ordinary statutory damages; 504(c)(2) covers the increase of statutory damages if the plaintiff sustains proof of willful infringement.  

Statutory damages are set at the discretion of the court, and may range from $750 to $30,000; if willfulness is proven, they may range up to $150,000.

There is no provision for treble damages. $150,000 is, however, five times $30,000.

__________________________
Daniel Abraham, Esq.

718-499-4006

DISCLAIMER: Material posted on the Legal Easel™ chatboard discusses general principles of law in response to issues of concern to the illustration community. Nothing in this website or the Legal Easel™ chatboard should be construed to be a substitute for advice of counsel regarding the specific facts and circumstances of an individual case. Laws and their interpretation differ from jurisdiction to jurisdiction. Legal advice addressing a specific situation should be sought from an attorney duly licensed in the appropriate jurisdiction.