Copyright Small Claims: A Bad Solution to a Non-Problem

Many of you may have heard about the small claims copyright system that is being encouraged by several organizations. Many of those groups are artists groups and, while they have very good intentions, the idea of a small claims system for copyright is, in my opinion, a very bad one. It is a fix to a problem that does not exist. And, in exchange, artists are going to lose rights and remedies they should not give up.

Here’s the underlying argument that proponents of a Copyright Small Claims system share, over and over again: litigating a copyright suit costs a plaintiff at least tens of thousands if not over a hundred thousand dollars.

That argument is not correct in so many ways. Its a scare tactic and too many artists groups are buying into it. Allow me to explain the errors.

First, assuming that a case is litigated all the way through trial and judgment is an unfair metric for the average cost. Why? Because according to the Federal Courts own statistics (the most recent ones I found were for a 12-month period ending March 31, 2016), only .07% of all copyright cases filed are terminated (settled or a judgment is entered) during or after trial. To put that into more concrete terms, in that 12 months there were 4836 copyright cases filed in the USA; of those, only 32 were terminated either at trial (settlement after trial started but before judgment entered) or at the end of trial (judgment entered). In the 12 months ending March 31, 2015, it was 26 out of 4253 filed (.06%).

In other words, the chances that a case is fully litigated are incredibly slim! In fact, in the 2016 statistics, 37% of the filed cases are terminated before there is any court action and another 54% are terminated before the pre-trial phase (that is, by the close of discovery). So, 91% of copyright cases get settled by the close of discovery and virtually all the remaining cases settle before trial.

What does this mean? It means the cases that get fully litigated are really hard cases. Parties don’t take a case to trial unless either someone refuses to accept that s/he/it is sitting on a loser (rare) or there is a real question of how the matter might turn out (almost always). When there is a real question especially, then there are lots of experts and more extensive discovery overall and, well, of course the costs are going to be large!

But, going back to my original point, that just doesnt happen hardly at all. Instead, most parties are smart enough (or at least their lawyers are) to settle and to settle pretty early in the process. Usually there have already been pre-litigation settlement negotiations of some sort so when a suit is actually filed, the parties generally know that this is serious now and get their shit together and work it out.

Often, this just happens on its own. In my own experience, I’ve seen it happen over and over–a case gets filed after months of trying to get the defendant to settle, the defendant (finally) gets a lawyer, the lawyer wisely advises Settle, now! and we work it out. And we should, frankly. Most copyright cases are pretty clear cut and most of them should settle before suit is even filed but, if not, then shortly after.

When the parties don’t settle on their own, though, the federal courts have put in mandatory Alternative Dispute Resolution (ADR) procedures into the litigation process. These processes save the court time and money and it saves them both for the parties, too. For example, here in the Southern District of California, we have a Early Neutral Evaluation (ENE) system that means no later than 45 days after the defendant(s) file its answer(s), the parties meet with the Judge Magistrate to look at the case and try to work it out. Often the case will settle at the ENE and, even when it doesn’t, cases usually settle shortly after. This all happens before you get into discovery (or it has barely started in some cases) and so costs are very limited.

The second major error in the scary math is that proponents of Small Claims don’t mention that, overwhelmingly, plaintiffs win copyright suits that go to trial. The latest statistics I saw on that (2009) put it at over 80%. When you win a copyright suit, you may be awarded your attorneys’ fees and costs (assuming you have registered your copyright before the infringement). While that award isn’t guaranteed, courts tend to make that award when it is a smaller plaintiff (like an individual artist) bringing suit, particularly when there is not a really unusual legal question at issue and/or the infringer is a big company that should know better. So, if you go through trial you have a very good shot at winning and, if you do win, you have a shot at having much of the out-of-pocket reimbursed. If your attorney is working on a contingency-fee-basis, you haven’t even been paying her yet anyway (just paying costs, like filing fees, etc.).

Okay, to recap, filing and litigating a copyright suit usually does not cost a terrifying pile of money. It is rare when it does and most of those suits are complex cases (and, by the way, often ones with large corporate plaintiffs like a movie studio). Small artists don’t need a system to reduce those costs because it is unlikely any small artist will get hit with them by filing an action[1].

What do small artists give up if they use the proposed Small Claims system? They give up their right to a jury trial (very bad thing), appeals are very limited, and most disturbingly, the system would limit the amount of money they can win–in fact, the maximum is cut in half (again, assuming the work is properly and timely registered). That depression in awards will affect those who opt out of the Small Claims system, too, even though the rulings of the tribunals would not be precedential. Artists would be giving up way too much for a protection they don’t even need!

The final argument made for a Small Claims system is that attorneys won’t take on small matters on contingency. That is just untrue. Some attorneys might not, but I know plenty who do, including me. In fact, that was a big part of my mission in becoming an attorney: to serve artists. Sure I can’t take every case, but I take a lot of very small ones. If the work is timely registered and the defendant looks solvent, there is a good chance I’ll take the case.

So, rather than give up your rights, use them to your advantage! Register your works, find an attorney who will work with you (it doesnt have to be me–I can recommend others, too), and go after infringers.

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[1] Before you even go to the Monkey Selfie case and the photographer being bankrupted by it: the photographer did NOT file that suit–he has been the defendant in a suit filed by PETA.

Registration? Application? What’s the deal?

Recently, there’s been a lot of discussion amongst us copyright law nerds about a circuit split on the requirement written in the statute that says you have to register the copyright before filing suit. The question is: what does “registration” mean in that statute? Seems obvious but, in law, we’re quite persnickety about word meaning so this is a big deal for us. I bet already some of you are fading out, thinking that this has little to do with you and your creative business. But it does! The good news is, you don’t need to know all the gruesome technical legal details.

Here is what you do need to know: if you want to sue someone for copyright infringement, you have to have registered the copyright before you file the lawsuit and the easiest way to make sure you’ve done that, no matter how they define it, is to register all yourworks as soon as possible after their creation. If you do that, then the complex legal question causing the circuit split won’t apply to you.

If you are one those who simplymustknow the details (and, if not, skip to the last paragraph), here’s the legal question: is applying for registration enough to mean “registered” or do you have to have the certificate in your hot little hands, before filing suit? We lawyer-types often call these two approaches application and registration, respectively. A couple of circuits have said that applying is enough to keep your lawsuit from being dismissed and a couple of others have said that you have to have the certificate.

So what? Well, thedifference means that, for example, if you file suit in California (9th Circuit), the courtswillsayif you’ve applied for your registration, you’re good to go; but, if you file the factuallyidentical* suit in Florida (11th Circuit) they will say you have to have the completed registration or your suit will be dismissed. So, you may be thinking, if you’ve only filed the application, you should just sue in one of the circuits that says that’s enough; but there is another part of the law that limits where you can file your suit, so that won’t work. That’s why I have an asterisk next to identicalabove, because one of the facts would bewhere the defendant is and if the defendant is only in Florida you can’t sue ’em in California.

Anyway, when there is a split like this, where some circuits say X and others say Y about the same statute, it falls on someone to appeal to the Supreme Court to get an answer. This means having a partywilling to do that (it’s not cheap) and then the court agreeing to review the case (which it probably would–SCOTUS likes to resolve circuit splits, usually). In other words, it’s not going to happen tomorrow so, for now, we have to live with the split.

Like I said at the beginning of this post, you can avoid all of this mess if you take the time to register your copyrights in your works as soon as you possibly can, after creation. That way you’ll make it impossible for the other side to bring up the application/registration question at all.

Pursuing Infringers: Good For You & Your Clients, Too

I just read this interview with photographer Andrew Buchanan, on the Copyright Alliance site (by the way, if you aren’t a member of the Copyright Alliance, you should be, in my opinion). In it, he says that he pursues infringers not only because he deserves to get paid for his work, but also because his clients pay him for his original work and if infringers use the work, then his clients are getting hurt.

I love that attitude and smart business thinking. By pursuing infringers, you are serving your clients as well as protecting yourself. You can even use that in your marketing! Let your clients know that while you can’t get every infringer, you do make efforts to make sure that infringers don’t use the work you are licensing. That is an added service value.

Mr. Buchanan is right in that registration is still a pain in the ass in some ways (like the whole published/unpublished thing, to start), but it’s part of what you need to do to ensure the viability of your cases, especially the more minor value infringements. I read a case recently, Gonzales v. Transfer Technologies, Inc., 301 F. 3d 608, 609 (7th Cir. 2002), that noted:

No one can prosecute a copyright suit for $3,000. The effect of the district court’s decision if universalized would be to allow minor infringements, though willful, to be committed with impunity, to be in effect privileged, immune from legal redress. The smaller the damages, provided there is a real, and especially a willful, infringement, the stronger the case for an award of attorneys’ fees.

That’s great, and it also shows what I keep saying: you can (and should) go after small infringements and they don’t all cost $100K to do (not even close). But, and this is a big BUT, you can only possibly get attorneys’ fees if you have registered the copyright in your work before the infringement in question starts (or within a 3-month window of first publication for published work only).

So, register your work asap after creation, go after infringers, and tell your clients you are protecting them as well as yourself by doing so. You might even consider raising your rates to reflect your added value to your clients.
Just a thought. ūüôā

New Rules (probably)

The US Copyright Office is proposing new rules for registering photographs and it is asking for comments on these rules. There are three main categories with proposed changes: supplemental registrations, group registration of contributions to periodicals, and group registration of photographs.

The last one is likely the most important one for most photographers, so I want to talk about it, mostly, in this post. You can go here to read the official information(pdf), but I suspect most of you would rather poke yourself in the eye with a sharp stick as it’s written in governmental legalese. Here’re the basics you might want to know before wading into the Federal Register.

First, all group registrations of published photos (designated GRPPH) will have to be submitted electronically (no more paper options) with digital images submitted as deposit copies. Second, the maximum number of photos permitted in a single registration will be 750. Third, photographers would have to submit a separate list of all the photos being submitted as a part of the group “with a title, file name (matching the file name of the corresponding deposit copy), and in the case of GRPPH, the month and year of publication 29 (e.g., January 2016, February 2016, etc.) for each photograph in the group.” Finally, the deposit copies must be submitted in electronic form but you can send them on a disk or flash drive or upload them (with a 500MB limit per file uploaded).

Importantly, the last significant changeis that they are proposing a new category of Group Unpublished Photographs (designated GRUPH); before one could do an “unpublished collection” but this new category would replace that and have all the same requirements as the Group Published Photographs, including the 750 photos limitation and the list (but without publication dates, of course).

The only major difference between the two groups is that for published photos, the photos have to have been published within the same calendar year but the unpublished ones are not limited by time. Besides that, the groups must be only photographs and the photographs must be created by the same photographer–no mixing like 25 photos by Photo Bob and 32 photos by Photo Betty. Both the Group Published Photographs and the Group Unpublished Photographs registrations will be $55 per registration.

As always, you still may not mix published and unpublished in a single registration. That isn’t going to change with these rules chages, although I suspect that these changes may be a step in that eventual direction (maybe).

The Copyright Office is proposing to eliminate the pilot program for the Group Published registrations and to change the application process, to streamline it more. The Unpublished and the Published processes will be very much the same. Photographers will be encouraged to list the titles (and publication dates for published works) on the application itself as that will put them on the Certificate and that gives you advantages legally (I’m not going into that here, though–just do it) but, at a minimum, you’ll have to submit the list with all that information with the deposit copies (still, take the time to list the titles, it will be worth it).

Most importantly, the proposed rule would clarify that the single registration of a group confers full protection for each individual photograph in the group. That would eliminate the arguments that defendants use to try and limit the damages (or argue fair use) we see in court sometimes, like that using one image out of a registration of 500 items is de minimis since it’s only 1/500th of the whole. This is a very good thing.

To submit comments on these new proposed rules, first read the details in the pdf linked to above, then you can comment by going here. Note that comments are due by January 3, 2017.

The Supplementary Registration is used to correct errors or make changes to an existing registration. Hopefully, you’ll never need to file one, but if you do you’re very likely going to have to do it electronically in the future. For more information on the proposed changes or to make comments, go here.

If you make contributions to periodicals, you may use that form of registration (GRCP) and there are changes there as well. Mostly, it is about making the registrations electronic, much like the Group Photo options I described above (are you seeing a theme here?). Notably, the Copyright Office notes in the Group Registrations proposed changes that it encourages photographers to use those options instead of the GRCP as there are fewer limitations. Still, if you use this form of registration (and this applies to text as well as photos, by the way), you should go here to read about the changes and to submit comments.

It’s not new if it’s the same

Here is yet another sad story of the timing ofregistrationbiting creatives in the butt. The short answer is that tattoo artists didn’t register the design in tats made on NBA players (including LeBron James) when theymade them, but instead after the first infringement of the tattoosby a video game company. That is, when the players were reproduced in video games, the tats were also reproduced, and since they weren’t licensed by the tattoo artists, the copyrights in the tats wereinfringed. In 2015, after the 2013 infringements (in NBA 2K14), the artists registered the work and when the same video game used the players (with tats) again but in the NBA 2K16game, theybrought suit seeking attorneys’ fees and statutory damages of up to $1.2 million.

The court said the “new”infringements weren’t actually new but rather the game was an iterationof the original one, with the original infringements. Sincethose started before the registrations, boom, statutory damages and attorneys’ fees were barred.

Ouch.

The artists are claiming the actual damages (still available under the law) are still significant, but they’regoing to have to prove up those damages; that is going to be a bear.

Registration Nag: No. 5226

I know, you’re likely already sick of me nagging about registering your copyrights as early as possible, but until y’all stop sitting on your hands, I’m going to keep at it.Today’s juicy reason is that sometimes a new infringement isn’t new.

The Hollywood Reporter in this article talks about a recent ruling in a copyright case involvingan artist who created some famous tattoos. The artist who created art on LeBron James did not register the copyright when he created the works and when theywere infringed by a video game company (who has Mr. James in its game), twice, it was too late to get statutory damages. So the artist registered later and when the video game company released a new version of the game, the artist tried to say it was a new infringement so that he could get statutory damages and potentially attorneys’ fees. The court, however, said the new release was the same infringement as the old ones because the use was essentially identical. If aninfringement starts before registration, the bright-line rule is you can’t get statutory damages (or attorneys’ fees), so the artist can’t get statutory damages here.

In short, his $1.2million case is now likely worth, at best, a few thousand (and he’s going to have to prove up that value).

Ouch.

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(note, the photo above is not of the tattoo in question; it isn’t even a real tattoo)

Your Notice is More than CMI

 

Recently, I wrote about the importance of your CMI (copyright management information) and mentioned that using your copyright notice as a watermark is your best CMI, because it kills two birds withone stone, so to speak. In that other post I talk about the DMCA and CMI removal issues (one bird). Here’s the skinny on the other…

But first, a little about a proper copyright notice. People get the notice technically wrong often, and it matters. So, here’s what it should be, in plain English:

1. ¬†the symbol ¬© (that’s control + g on a Mac) or the word copyright
2. the year of first publication (see here for more on “publication” as defined by the Copyright Office)
3. the owner’s name.

An example is the image above. Since I am first publishing this article here in 2016 and I created the work and own its copyright, the proper notice for this article is as you see there. In the post about CMI from late June 2016 I mentioned earlier, I included a photo (a selfie, actually) that I shot when I was in law school in, I think, 2010, but which I had not published (meaning that it had not been offered for license or given to a client for potential further use or otherwise made available to others, as well as in the sense normal people think of published) until 2015. So, the notice there is correct: 2015 Leslie Burns. If I wrote ” 2010 Leslie Burns” for the photo, the notice would be incorrect–the year in a proper notice must bethe year the work was first published.

Okay? Cool. Now to the good stuff…

If you publish your work with a proper notice, that is a proper and¬†visible notice (not just buried in the metadata), then an infringer of the work can’t try to claim “innocent infringement” in mitigation of statutory damages. It can’t even go there! Here’s the super good part of that: this is true even if the infringer got the work from some other source, without your notice! There are several cases that support this rule (and the rule is in 17 USC 401), but here are just two for your attorney’s dining and dancing pleasure: BMG Music v. Gonzalez, 430 F.3d 892 (7th Cir. 2005) and¬†Maverick Recording Co. v. Harper, 598 F. 3d 193 (5th Cir 2010) (cert. denied). The second one is particularly helpful as it looks at the issue in more detail, but both make it clear that the defense is barred if the work is available with proper (and visible) notice, even if the infringer never saw that particular publication of the work.

So, going back to the CMI thing, if you use the proper copyright notice as your watermark, you get the protections I just described and, if the work gets infringed and the watermark is removed, the infringer just committed a violation of 1202 of the DMCA. Putting the pieces together, then, and assuming you have properly registered the work prior to this, your infringer is looking at a minimum of $750 (infringement) + $2500 (DMCA) in damages to you, plus maybe your attorney’s fees.

Those birds must not be chickens ’cause that’s not chicken feed.

CMI and the DMCA

As a creative professional, you have a gazillion acronyms and abbreviations in your vocabulary. Here’s another one you should know: CMI.

CMI stands for Copyright Management Information and, generally speaking, it is data that identifies the copyright owner of a work. For example, on the photo above you’ll see my watermark in the form of a copyright notice in the lower right. That watermark is CMI.

In my opinion, you should always have visible CMI on any visual art (or, frankly, any creative work) you put out into the world. Why? Easy, under the DMCA (the Digital Millennium Copyright Act, another acronym for your vocab), CMI is protected. CMI functions as identification that the work is yours and, if your work is infringed and the CMI is removed or altered without your authority, you have extra tools to wield.

Specifically, if your work is infringed and the CMI is removed or altered, the infringer has committed at least one (and possibly two) violations of Section 1202 of the DMCA. Each violation carries statutory damages of not less than $2,500 and not more than $25,000, and the prevailing party may get its attorney’s fees and costs too. Oh, and the work doesn’t have to be registered for you to be eligible for those damages (but register your work, m’kay)!

Also, removal of visible CMI is strong evidence that an infringement is willful. If your work is timely registered (and, please, register all your work), willfulness increases the maximum statutory damages from $30,000 to $150,000. Even if you are unlikely to get the maximum (and, here on planet reality, you are unlikely to get the maximum in most cases), willfulness will be a factor in setting the statutory damages higher overall. So you really should have visible CMI on your work.

Best practice is to use a proper copyright notice like mine (although it doesn’t have to be that size–just visible and readable). A proper notice is the ¬© (or the word “copyright”) and the year of first publication of the work (note that is not the year of creation, unless they are the same of course) and the copyright owner’s name (not your url, not your biz name unless your biz owns the work as opposed to you, personally). Note that you don’t have to have registered your work to use the symbol (unlike for trademarks where you can only use ¬ģ for registered trademarks).

Using a proper copyright notice kind of kills two birds with one stone (a post for a different day) so I encourage doing that. Still, any visible watermark that identifies the owner of the work will very likely count as CMI, so you can use something other than the notice, if you insist (but I will give you the squinky eye for that).

What is important is that the watermark must identify the owner for it to count as CMI. You can’t just put anything on there and have it count. Today, I saw a tweet by Image Rights that suggested putting its”protected by Image Rights” watermark on works to “help protect” the work. While maybe using that might discourage someone from using the work, that watermark will not count as CMI, so I don’t think it’s a good idea to use it. I mean, you could, but then you’d also have your own CMI watermark on the work as well. With all that on a work, it’s going to get pretty crowded and likely lose whatever marketing value displaying the work may generate.

For what it’s worth, your own watermark also functions for marketing purposes. Credit lines (while also CMI if posted adjacent to the work, and so its removal is a violation) don’t usually travel with a work when it gets ripped off or legitimately shared on sites like Facebook.

Finally, when you discover an infringement and realize that you haven’t properly, timely registered the work, the DMCA violation(s) may make the case something that an attorney would be willing to take on a contingency fee basis, since the potential recovery is more than just actual damages. If for no other reason than that, I suggest artists should make sure to use CMI-proper watermarks!

A Few Don’ts

I have posted often (especially on the old BAP Super Premium blog) about things you should do, like¬†registering your copyrights. Today, though, I think it’s time for some don’ts. Most of these are things that people seem to think are really good ideas but, when the rubber hits the road, they aren’t. Some of them can be downright dangerous. Some of these are legal-related, and some are just general business advice. So, here’s my list of 10.

Please, don’t:

  1. Before you actually hire an attorney, and I mean have a written agreement covering that particular matter (and paying a retainer, if required), cc the lawyer-you-think-may-be-your-lawyer on your email to some potential opposition. This sucks for the attorney on multiple levels, including being blindsided (never good) and pissing off the attorney’s malpractice insurance provider. Most of all, and I’m sure you don’t realize it, but you are using that lawyer’s professional reputation without her/his permission or payment! You know how you don’t like having your work ripped off? Same for us. You have, in a way, forced the attorney to represent you without that person’s permission. It’s just all kinds of bad.
  2. In any email–whether you cc’ed the attorney (who is not yet actually your attorney on that matter) or not–tell the potential bad guy “My lawyer will make you pay $X” or “My lawyer says you will owe me $150,000!” or even “If you don’t pay me $X now, you will regret it! My lawyer will rip you a new one” and the like. Ugh, even typing that gives me the willies. Don’t put words into a lawyer’s mouth; you are pretty much sure to get the law wrong and more often than not, when I’ve had potential clients do that, they didn’t even have a good case (register your copyrights, already). The threats end up hurting you. Later, when you do hire a lawyer, you will have dug a bigger hole for her/him to work out of and, it’s possible, that you could have traipsed into the realm of extortion. So very not good.
  3. Make unreasonable demands and then get pissy when they aren’t met. If you contact someone who has potentially breached a contract or infringed (or whatever), giving them an arbitrary 24 hours (ish) to fix it/pay up just makes you into the jerk. Real life sometimes takes time. Give people time to do the right thing. Sometimes they have to get their heads out of their butts first and that doesn’t always happen overnight. Same goes for money demands–don’t ask for $20,000 when a photo is used (without a license) on a personal blog–you won’t get it and now you just look like a bully.
  4. Generally, act like an ass.You get more flies with honey¬†is a good old saying for a reason: it works. Sure, it’s not 100% effective, but I think it works much better than being a jerk. If you make it easy for someone who’s done you a wrong to make it right, without humiliating him/her or beating him/her up (verbally, I mean, please tell me you don’t hit anyone), you are much more likely to achieve your goal. When someone gets caught doing something wrong, it can be embarrassing and humans often react defensively (read: like idiots) when embarrassed. Don’t rub the person’s nose in it–rise above the nasty gut-reaction s/he may initially respond withand talk instead about how “we” can “make it right.” Look for solutions, don’t make more problems.
  5. Be greedy. Let’s say you want to get $5000 from a potential infringer (and, yes, you should always have a number in mind that you would be perfectly satisfied with from the get-go; not a pie-in-the-sky number but one that you would happily take). You’re going to ask for more than that as an opening offer–that is expected. Whenever the other side agrees to pay $5000 (or if it offers more), take the deal–you got what you wanted. You don’t have to push for even more. It isn’t about getting all you can, it’s about getting enough.¬†Satisfaction¬†doesn’t mean “all you can squeeze out of the bastard.” This is also true for project estimates and all negotiations in your business.
  6. Beat up Betty for what Bob did. By that I mean, it’s important to take each matter on its own merits and each potential person on hers/his. Don’t be a chump, but if Bob said he was poor and couldn’t pay a dime and it turns out he owns a mansion and a yacht, don’t expect that Betty is lying when she says she’s poor. Give each person a chance to prove her/his side of the case. Sometimes it really is a hacking or someone really is on foodstamps. I’ve found that when someone legitimately has extenuating circumstances, s/he usually is more than willing to provide some proof.
  7. Try to sound like a lawyer when someone does you wrong. You’re not one and mostly you end up sounding like you’re trying too hard and being unnecessarily nasty. You can be appropriately assertive (and be assertive, not aggressive) in your own voice and without using $20 words. See #4 above, too.
  8. Refuse to have a plan. There are a bunch of plans you should have as a businessperson. You need to have a business plan, a marketing plan, and an estate plan, just to name three. None of these need to be complex, but you do need to have an idea of where you are (A) and where you want to be (B) to be able to get from A to B. When you have a work project–be that a photoshoot or a series of illustrations for the¬†New York Times Magazine–you plan out what you need to do to accomplish that project. Do the same for your business as a whole. As for the estate plan, well,¬†don’t be Prince.
  9. Expect to learn the law from a creative professional (or, worse, the interwebs). Okay, I know this is going to ruffle some feathers, but creative professionals, even those who have been in lawsuits often or who have registered a gazillion copyrights*, are not lawyers and do not know the law the way a lawyer does. I swear I’m not tooting my own horn here–I can’t do what a great photographer can do even though I’ve worked with them since the 1990s. It’s just not the same as devoting yourself to the intensive study and practice for years and years. Anyway, you wouldn’t go to a graphic designer for medical advice, right? Why then do you spend good money to have one teach you about business law or copyrights? There is a reason we lawyers have to be licensed, just like doctors–when we get things wrong, it can really be life or death in some cases (there is a reason I don’t do criminal law) or at least economic life or death in others.
  10. Get angry and take things personally. This one is huge. In business (and law) the ego gets in the way too often. When people do things that negatively affect you–be that infringe on your work or try to get you to agree to work for half your normal rate, whatever–it really isn’t about you, it’s about them. Maybe the art buyer is getting yelled at and squeezed by an impossible client or the infringer is oblivious to copyright, who knows what is going on in their heads. I can tell you that almost always what is¬†not¬†going on is “I want to screw over this artist.” Even when the other side is acting like total jerks, it’s still about them. For example, I’ve had cases where infringers have called me horrible names; what the infringers were really trying to do was make the problem go away– each knew it was caught and was embarrassed so it lashed out in anger. Taking that anger personally would have been wasted energy. Instead, I think it’s better to approach it more dispassionately like “I understand you’re upset; there is a problem here and now we need to find a way to fix it” and then start trying to think of solutions. Your goal is to find a solution that works for you so keep your focus there.

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*I can tell you from personal experience that more than a few creative pros who think they know how to register their work have done it wrong. So wrong, in fact, that some of their registrations could be broken by defendants.

Before Means Before

Y’all are probably sick of hearing me nag about registering your work as soon as possible, but here is a great example of why I do that. In a recent opinion the court wrote (emphasis added by me):

Because Compass did not register its copyright until February 17, 2012 one day after the alleged infringement commenced the court finds as a matter of law that Compass is not entitled to an award of statutory damages or attorneys fees.

Ouch. That really sucks.

Remember that yourregistration has to be before the infringement actually began (or, in the case of published work, within 3 calendar months of first publication), not just before you discover the infringement, for you to be able to get statutory damages or attorneys’ fees. Clearly the courts are willing to say “One day too late, tough.”