“An application for copyright registration must be filed before an infringement takes place in order to recover the big dollars.”

Kathryn’s half correct: You’re also eligible to seek statutory damages (from $750-$150,000) and legal costs plus attorney fees (at the court’s discretion) if your work is registered WITH-IN THREE-MONTHS OF ITS FIRST-PUBLICATION (17 USC § 412).

So, if you’re unable to register before the infringement, you “might” have a second chance to pursue enhanced damages & attorney fees against the infringer if your “published” work is registered within three-months of its first publication date (and NOT 90-days as some IP attorneys like to write).

If you work is displayed on-line, and your intent is to sell/license, allow others to share/distribute, make copies/downloads/embeddings, or further distribute your work, then it’s likely been “published,” according to the US Copyright Office; otherwise, your work might be un-published. For un-published works, you gotta register BEFORE the infringement occurs to have any substantive chance of receiving money damages from the infringer.

The easiest way to protect your works is to group register them BEFORE publishing, selling, posting them to any social media sites including Facebook, Instagram, YouTube, etc. As of November 2015, the current cost to register a group of un-published works (more than one work in a deposit) is $55. On the other hand, it’s $35 to register a SINGLE work (where there’s a SINGLE author whose work is NOT part of a work-for-hire project).

If your work is infringed, it’s recommended to retain an intellectual property (copyright) “litigator” (trial attorney) vs. a transactional attorney. Of importance, the first thing your IP attorney will ask you when you call crying about your infringement, “Did you timely register your work with the US Copyright Office?” A timely registered copyright will provide you with LEVERAGE to encourage the infringer to settle quickly.

Kathryn also writes,

“Regardless, copyright registration is still a solid business practice for artists.”

This is so true! It’s sad that way too many artists operate without any real business and legal skills.

Kathryn,
That would be great – thank you so much!

Quiarrah,

I think that what it means is that right now is one of the best times to be a collage or appropriation artist. Repurposing the work of others into something new and different “with [your] own 2 hands” has never been safer from a copyright perspective. Take a look at the report I cited from The Center for Social Media, Code of Best Practices in Fair Use For Visual Arts, the section on making art:

The use of a preexisting work, whether in part or in whole, should be justified by the artistic objective, and artists who deliberately repurpose copyrighted works should be prepared to explain their rationales both for doing so and for the extent of their uses.

Read the other limitations included there, as well.

As for work you purchased, the terms of the license will control. A license is a contract and you agree to its terms. A license will trump fair use.

Kathryn

I haven’t chimed in on the new Orphan Works and Mass Digitization Report from the Copyright Office because I haven’t read it yet. I mentioned to Angela that a follow up post on this issue might be in order. When I write that post, I’ll be sure to let you know.

Kathryn

I’m so sorry to hear that you’ve had images stolen and repurposed. That’s awful!

And thanks for the links. I wasn’t aware of Brad Holland’s claims—or even of this bill in its past iterations. I received an email from friends at an art gallery and followed the link to the report.

At a high level, I do have a lot of the same concerns as Holland. I’ve only skimmed his writings, but defeating this bill clearly is a mission of his. I won’t be diving that deep into this. Like you said, it’s extremely time-consuming to research and validate everything, and it would be great if someone could document the issues against corresponding parts of the report. I’ll certainly start highlighting the language that concerns me as I go back through it again.

I would love to see a variety of lawyers address an identical list of points of concern in the bill, as different lawyers can view the same information through different lenses and have different interpretations.

Please keep me posted and happy creating!

Pam,

I am all for closing loopholes if there are any for sure! It did seem to me that there were enough guidelines in place to make sure people couldn’t just be lazy about their searches, that they would be required to not only search through online and offline copyright databases but also use whatever other technical tools are available, as well as expert advice. Making the searches easier I think is the key. Although it’s not a database of everything on the planet, tineye.com is a great example of a reverse image search that could be expanded upon in order to search for registered work. It’s not perfect and if something is too new it won’t show up but I have had a lot of success with that in the past. I’ve had countless images stolen and distributed as Photoshop brushes or incorporated into photo manipulation art that I am always able to get removed by filing a DMCA, but I had always wished that there were a trail leading to where the infringer found my image in the first place. Many will say “Oh I found it on google, I don’t remember where now” and I have to wonder if they know, and knowingly stole it from me or whether they are telling the truth and someone else had taken it and posted it online for public distribution. One thing I like about this proposal is that if you want any legal protection whatsoever as a registered Orphan Works user, you would have to document all your searches and document where the piece was originally found. That way you could potentially first get your due compensation from the registered user and then go and find whoever was distributing your work in the first place.
Unfortunately people will try to use art they find whether this will go through as a law or not, and have been throughout history. This at least leaves a trail, even if it has some flaws in it.
I do agree that maybe recent and currently registered works should be excluded from use without permission, but I had assumed that if it’s currently registered and the artist is known to be alive or their family taken over the copyright in the case of death then it could not be considered orphaned, though I could be wrong. If I am wrong then that would be the main complaint that I have about the whole thing. If I’m not wrong, then I think it’s an okay solution to at least managing infringement that would likely happen anyway and could make it harder for people to do so if they have so many hoops to jump through. It would help if there were an example of what an orphaned recent work would be, and yes clearer descriptions of what would and would not be considered as orphaned work.
I do also agree that registering copyrights could be easier, especially when it comes to groups and series of work.
My biggest gripe this whole time though has been Brad Holland’s sensationalist claims about this issue and all the seemingly exaggerated statements he is making about this proposal without specifically documenting or backing up his claims.
I just want someone to list all the scary arguments and list all the facts they refer to in the report right next to them with footnotes for where in the report we can find them so I can stop spending time looking into this, haha. Seriously, it has taken up sooooo much of my time!

Thank you so much for the excellent points you make!

I wish I had highlighted the various lines in the Orphan Works Bill that concerned me as I read it, but I didn’t. I’ll have to go back through the 230+ pages and do that, so I may need a few days. Guess I have new plans for the weekend! 🙂

Until then, I can tell you that when I read it, I saw language throughout that made it clear that this is a bill designed to *primarily* serve the needs of organizations and people like library collections, history museums and cinematographers. I understand that these groups want to use old literature, images and film, and that they often can’t determine the original creators of these “orphaned” works. I’m glad that the bill will help them use the content they want to use so they can convey history and knowledge without having to fear copyright infringement. I’m all for that, big time!

However, I think it’s a disservice to include today’s artwork under that bill. And I know the bill will try to establish standards that qualify as a “diligent” search, but I have issues with that, too: “I entered what I thought was an accurate description of the piece in the database, but nothing came up.” “Oh, the artist described the piece *that” way. That’s not how I see the piece, so I didn’t enter that criteria.” Etc.

As we know, technology is outpacing artists’ ability to establish a connection between themselves and their artwork. Images are copied and spread at lightning speed online with titles, copyrights, signatures, watermarks and metadata stripped out. Not to mention that there isn’t and never has been an accessible, searchable, reverse lookup archive of visual images. That’s a *long* way from becoming a functional reality, with no indication that such a system will even work. I think it’s a huge assumption to base new legislation on the hope that such a system will be created and also be effective.

I think it all places additional financial and technical burdens on artists to protect their work both in life and after death. And at the same time, it also creates loopholes for infringers.

If anything, I think we need revised copyright protections that make it easier for creators to protect their work without incurring a rash of new costs and technical requirements, and make it easier for good faith users to find creators.

I’ll have to re-read the bill to find the specific lines that concerned me and raised the other issues, but these are the gut concerns I came away with after the initial read. I personally would like to see artwork removed from this bill.

I agree – I hope Kathryn does a writeup about this, too. The more eyes on this legislation, the better!