Our survey revealed concern of the risk of theft of images of their works, especially high definition images. This article discusses the issues involved and suggests solutions for extra protection especially as it relates to our service, Art Stream Videos.
Fundamentals of U.S. copyright law
According to U.S. copyright law, artist works are instantly copyrighted as soon as they are created in tangible form. This automatically gives the artist or photographer the right to prevent others from using, displaying, profiting from, or adapting that work. However, by taking a extra step to register your works with the U.S. copyright office, you can obtain additional protections that include the ability to sue for significantly more monies in cases of infringement.
Otherwise, if you don’t register works with the U.S. Copyright Office, you are entitled to “actual damages”. What are actual damages? Let’s say an infringer grabs one of your low or medium resolution images off the internet and puts it on a coffee mug. If they sell 100 mugs for $15 each and get a $5 profit for each cup sold, then your actual damages are only $500. And you still have to register anyway before you can sue in federal court. But if you register your works before the infringement, you are entitled to up to $150,000 per infringement and attorney’s costs.
What works should be copyrighted?
This should include exceptionally attractive images that might have broader appeal or the potential to be copied onto other media like rugs, book covers, and tee shirts. For a more thorough discussion of what works should and should not be copyrighted, see this more in-depth article by Alan Bamberger.
First, you need to choose between registering each image separately or registering multiple images as a collection. There are pros and cons to either approach, dealing with cost, defendability in court, and if a work has already been “published” or not. You need to decide which approach, single or group, works best for you.
Group copyright Registration
If you are a very productive artist, you may want to register multiple works at a time versus some works individually. However if some of your works have already been sold, like the original, and you are now selling Giclees of that same work, then those works have already been “published” (changed hands) in copyright parlance. They may be considered published if they have appeared in newspaper or magazine (but not the Internet).
You can register unpublished (or published) images as a group or titled collection, such as “My Collected Works of 2018”. For more information on what exactly constitutes a group or theme, please see this explanation in Fine Art Views by Brian Sherwin. Here is another article by New Media Rights. But be forewarned, the group copyright registration process is complicated enough that you may initially prefer to use a copyright attorney, but thereafter you can potentially do it yourself.
You must do it right because just one error can risk the entire group registration. For example, if even one image in a collection was previously published before the infringement, the copyright infringer may not be liable beyond actual damages, but only if his attorney discovers this fact.
The registration cost is currently $35 – $65 per group depending on which options you choose. Basic requirements are:
1. The same artist or photographer created the works.
2. All the paintings or photographs were first published in the same calendar year.
3. All the paintings photographs have the same copyright claimant (i.e. you).
Alternatively, you can always copyright one image at a time. But this is obviously more expensive and time consuming. Whether you register as group or individual, estimated processing times are currently more than 6 months.
How to find unauthorized images of your works
Assuming you have registered some of your works individually or as a group, you need a way to find potential copyright infringers. For this you can simply use Google’s reverse image search. Press the camera icon, upload your image, and then press search. Google will scour the internet and give you a list of similar looking images. I used Google to search for one of my paintings called “Taos Moon” that has been on our Art Stream Videos channel on Roku for about a year. There were no hits.
Besides the standard threat of copyright infringement, another anti-theft mechanism widely used on many websites that sell photographs, like Getty and iStockPhoto, are watermarks. Typically these sites insert a logo or text in a conspicuous location to effectively ruin the image. Consensus is that in most cases, watermarking is a bad idea, outside of Print on Demand (POD) sites, because it mars the work and defeats the idea of sharing the image. Others view watermarking as so easy to remove that it’s not worth the effort. Red Dot Blog covers the pros and cons of watermarking.
A more refined approach is to insert a subtle watermark that doesn’t detract from the photo. We suggest that if you do this, make the watermark a small, hard to see icon or text containing the copyright symbol (c), the year (very important) and your name. Phlearn.com has a good tutorial creating watermarks using Photoshop.
The Digital Millennium Copyright Act (DMCA)
If you do find one of your images available or used on a product available online, you can simply give notice of copyright infringement to the website owner or service. They must take down your image or the sales item using your image. If not, you can sue for damages. The DMCA Act is also designed to protect innocent third parties (like us) from an infringer who might upload works they do not own.
A typical concern is what to do if someone does copy one of your images and uses it on an item sold in China. Although Chinese copyright enforcement has been notoriously lax, it is slowly getting better. I would argue that if your image is sold on a tee shirt or coffee mug in China, there is virtually nothing you can do about it. That is, by removing your images from the Internet or using bold watermarks you have far more to lose than you have to gain.
Some artists, particularly those of a certain age, allow misplaced paranoia to dictate their marketing choices. In the case of Art Stream Videos, consider the near impossibility of an unscrupulous user getting a clear and complete HD image off a TV using a camera on a reflective surface. And even if someone were successful, you have U.S. copyright law on your side. You have a far greater risk of someone scanning an image from a printed advertisement.
So ultimately you have a choice: You can be overly protective of your art and limit your marketability. Or you can copyright your works, monitor unauthorized use, optionally use a hard-to-see watermark, and understand and accept that sometimes a work might be used somewhere without your permission.
As a further deterrent, we clearly post on our Roku channel that “All works are copyrighted by the respective artist and may not be reproduced.” With these protections and a more thorough understanding of their limitations, you should take advantage of Art Stream Videos to greatly expand your visibility and reach.
Disclaimer: Be advised that I am not a copyright attorney. Nothing here should be construed as legal advice.