Okay, the following is a bit long-winded but recently I’ve had more and more visual artist friends complain to me about others using reproductions of their art on products or documents and asking me about suing the copyright violator. I’m not a lawyer and not offering legal advice, but there are a few things I’ve learned over the years about a visual artist’s copyright and trying to sue folks over it, and while this is by no means my complete experience with copyright issues and lawsuits and their variations I hope the couple things I’m sharing here might help some of my artist friends in the future.
Under U.S. copyright law, if you should ever want to bring a copyright infringement case against someone, last time I checked there is a 3-year statute of limitations to file your suit from when the infringement first began. Also, under copyright law even though you are the copyright holder automatically from the date you created your art, to be eligible for an award of statutory damages and attorneys’ fees in a copyright infringement case, the copyrighted artwork in question must have been registered with the copyright office before the infringement commenced. In other words, even though you are the de facto copyright holder, you must still file a copyright registration of the artwork before you can sue someone for damages for infringing on your copyright. Without registration you might succeed in getting a cease-and-desist against the other party, but seldom can you expect any monetary award.
But what if someone is using your art and you never registered it before the infringement began? You should still immediately register that work with the copyright office. It won’t guarantee you’ll win your lawsuit, but your registration will satisfy a basic level of proof for the court of the validity of your copyright. Not having an artwork registered before theft occurred has not prevented artists from winning in court, but it must be registered at some point if you ever do hope to win.
But once the smoke finally stops steaming from your ears and you calm down after discovering someone is infringing on your copyright, you may find there are ways to get paid without going to court. First, if your art isn’t registered, register it, then contact the violator and see if they want to negotiate a settlement without going to court. I did this in the case of a check printing company that was using a few images of my art on the checks they were making for bank customers. I calmly and quietly negotiated a deal for a royalty that lasted 5 years until they phased out the use of my images. It saved a lawsuit for both parties, and I got paid fairly.
But there are scum out there who will never deal with you. In these cases your best protection is to register any work of art (especially those little logo-looking works) you feel strongly about or feel may have the legs or potential for future copyright theft.
There is always more than what I just covered in any copyright case, especially for Internet image copyright violations, but I hope this answers a couple basic questions.
