The Two Steps You Must Take to Protect Your Art
One of the most common calls that I receive is an artist claiming that someone has stolen their work. Frequently, this takes the form of someone online who finds a picture of the artwork and uses it without permission. However, almost as often the perpetrator in question is a former partner who was working with the artist on a song, a story, a screenplay, etc. and began using it without the other artist getting a piece of the profits.
In order to prevent this from happening, or to stand any chance of recovery if it does happen, there are two steps that an artist must take to protect their work.
The First Step: Get Your Contracts in Writing, and Get Them Early
Many deals between artists are handshake deals. Sometimes spur of the moment decisions with a friend or acquaintance. Sometimes they are between professionals who have worked together before on a number of projects. However the parties come together, they decide to work together, but don’t bother to formalize the relationship with a contract.
This is a huge mistake. Frequently, those two artists will work together for some time, but then problems will begin to develop in the relationship. Maybe someone is not putting in as much work as the other. Maybe one artist wants to take the project in a different direction. Maybe one artist wants to bring in a third person, but the other partner wants the project to remain exclusive.
What do the partners do to resolve their differences? In a perfect world, they would sit down, talk it out, and come to an understanding. However, frequently by this point it is not just one problem that has occurred, but a host of many small problems that have all added up until the partners don’t want to look at each other.
So now no one wants to work together anymore, but what if they produced artwork together? What if that story they wrote has attracted interest from a publisher, or the song has caught the attention of a label? Which one of the partners owns the work? What if money is already coming in?
This is when a contract comes in handy. A proper contract will lay out the duties of each partner, what they are responsible for, and what they will receive in return for their work. It will also detail what will happen if a disagreement occurs between the parties, and ultimately who will own the work.
It is important that this contract is drafted and signed by the parties before they begin working on a project. A situation that is almost as bad as having no contract is when, after years of working together, one partner hands the other a contract to sign. Once again, in a perfect world, the partners would sit down, talk about the terms of the contract taking into account any work that they have already performed, and then sign the new contract that tells them how to behave going forward.
In my experience, this is not what happens. Usually, if a partner springs a new contract on the other partner late in the game, it is because they are not happy with how the ownership of the work is arranged, they feel that they are being treated unfairly, or they are worried about the money that the work has generated, and they want to change the way the partnership is being handled. It almost always causes hurt feelings and can lead to the end of the partnership.
At the beginning of every partnership, all participants should sit down, have an open and frank discussion regarding what they want to accomplish, and then draft a contract that sets those terms out in plain English. The partners should have an attorney review and explain the contract to them in order to catch any defects that might crop up down the line. Many projects change over time, but a properly drafted contract will evolve alongside the project, allowing for change but keeping the parties protected.
Although contracts can be scary due to their size, language, and the legal weight they carry, they will protect the artists and save them a huge amount of trouble (and expense) down the road. If money is a factor, there are organizations that can assist with attorneys either working at a lower rate, or pro bono. One of these organizations is listed below.
The Second Step: Register Your Copyright
When an artist calls me and frantically says that someone stole their work, my first question is always: Did you register your copyright with the US Copyright Office?
About 90% of the time, the answer is “No. I didn’t know that I needed to.” It is always unfortunate when I am told this, because it makes it much more difficult to recover anything.
If someone steals your work, whether it’s a song, a painting, a photograph, or a story, you cannot enforce your copyright unless you have registered your work with the Copyright Office. You cannot bring a lawsuit until you have registered. If you have registered your work before any infringement, then you are able to sue for statutory damages, costs of the suit, and attorney’s fees. If you have not registered when someone infringes your work then you can only sue for actual damages, such as lost sales. Actual damages are very difficult to prove, and will result in a much lower award than you would receive under a timely registration. If someone infringes your work immediately after you publish it, then you have a three-month window from publication to register your work in order to also be able to recover statutory damages.
Registration has other benefits besides the ability to sue: It creates a public record of ownership. This lessens the burden of the owner to prove that they were the original creator of the work if it comes into dispute. It will be much harder for someone to prove they are the creator if they were not the one who registered the copyright. It also will deter potential infringers once they realize that the work is registered.
The Bottom Line
The two steps that you must take to protect your art are:
Always get any deal in writing, before you start working together.
Always register your copyright with the US Copyright Office; and
If the worst has happened, and you and your partner find yourselves without a contract and not speaking, don’t panic. There are organizations that can help you over the hurdle that you have run into, and get you back into a working relationship. One such organization is the Arts Arbitration Mediation Service, a program under the non-profit California Lawyers for the Arts (https://www.calawyersforthearts.org/). They have affordable, experienced mediators with a great track record of untangling arguments and getting partners back to what they want to be doing: art.
California Lawyers for the Arts also has a lawyer referral service that will work to place artists with attorneys who can assist them regardless of their income. The referral service can also be found at the above link.
Finally, you are always welcome to contact the team at Art Law Access. Jake and Matt can be reached at jake@artlawaccess or matt@artlawaccess, respectively. We will always respond to your questions.
The information provided in this article is presented for informational purposes only. This article contains general legal advice, and reading this article does not create an attorney-client relationship between the viewer and Art Law Access. This article may be considered advertising under applicable law and ethical rules.