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ARTISTS, AUTHORS, COPYRIGHTS, INTELLECTUAL PROPERTY

STREET ART – CAN I TAKE A PHOTOGRAPH?

Street Art is artwork that is displayed on buildings, streets, walls, doors, windows, buses, trains, and on other public surfaces. When applied to walls or barriers, street art is commonly referred to as a mural. Street art traces its origins to graffiti and vandalism which were historically denounced as illegal and lacking in artistic merit. However, in the past decade or so there has been a significant shift of street art to the mainstream. One court recently noted that “street art” has “blossomed into far more than spray-painted tags and quickly vanishing pieces . . . painted by rebellious urbanites. In some quarters, it has become high art.”

COPYRIGHT INFRINGEMENT

Copyright laws exist to protect the rights of artists in their works. The issue of whether street art is protected under U.S. Copyright laws has recently been decided in favor of the artists. Copyright ownership gives the holder of the copyright the right to: 1) reproduce and make copies of an original work; 2) prepare derivative works based on the original work; 3) distribute copies to the public by sale or another form of transfer; 4) publicly perform the work; 5) publicly display the work, and 6) perform sound recordings publicly through digital audio transmission.

Because it is displayed in public areas, street art is easily copied by anyone with a camera or cell phone. Indeed, some public art, like that of mural artist Colette Miller, is specifically designed for the public to immerse themselves in by taking photos of themselves or “selfies” with the artwork. The act of photographing a copyrighted work does not itself constitute copyright infringement under the U.S. Copyright laws. However, the way in which that photograph is subsequently USED determines whether the photograph infringes the copyright owner’s rights.

THE “FAIR USE” EXCEPTION

Photographs of copyrighted street art that fall within the “fair use” exception do not constitute infringement and are permitted. Personal use of a photograph depicting copyrighted street art falls within this exception. Incidental use, where the artwork is virtually unrecognizable, appears for only a moment, or is not the main purpose of the image also fall within the fair use exception. In contrast, unauthorized commercial use resulting in income to someone other than the artist is generally prohibited.

The following illustrations provide some guidance on what is and is not appropriate.

Good of the Hive mural in Peterborough, New Hampshire

CASE STUDY #1

Buzz is a budding entrepreneur. He started a business offering pollination as a service, deploying boxes of bees on-premises to help farmers increase crop yields. On a recent trip to Peterborough, New Hampshire, Buzz came across The Good of the Hive mural by Matthew Willey. Buzz takes a photograph of the mural and decides to use it as the background photo for his business’ website. Because Buzz intends to use the photograph for commercial purposes, that use is infringement of Willey’s copyright.

Street Art - Greetings from Alaska mural

Greetings from Alaska mural in Anchorage, Alaska

CASE STUDY #2

Disheartened after his divorce, Sal is convinced by his friend Dean to quit his job, sell his belongings and buy an RV to travel the 50 states. On their travels, Sal and Dean encounter several “Greetings From” murals by Victor Ving and Lisa Beggs, including the Greetings from Alaska mural in Anchorage, Alaska. The design and beauty of each mural encountered captivates Sal and Dean. Sal takes a photograph of each mural and uploads it as his Facebook Cover Photo until encountering the next one. Although Sal is technically re-publishing the work, the use in question is personal rather than commercial. As such, it likely falls within the fair use exception. However, what if Sal were to later author a book based on those travels using the photographs? That would change the nature of the use to commercial and, without the author’s written consent, constitute copyright infringement.

CASE STUDY #3

Kylie is a social media influencer with 10 million followers on Instagram. Because she has access to a huge audience and can persuade others to act based on her recommendations, companies pay Kylie to post photographs of her using their product on Instagram. One of the companies that pays Kylie for posting images of her using their product is GreenCow Energy Drinks. GreenCow just released a new watermelon flavored energy drink. Kylie decides that it would be a good way to promote the new watermelon flavored energy drink by taking a selfie holding the drink in front of the Watermelon House by Wade Wilson (not to be confused with Deadpool) and Robert Banaszak in Washington, DC. Given the facts presented, Kylie’s use appears to be “commercial” rather than personal and would most likely constitute copyright infringement.

MARTIN IP IS HERE TO HELP

These are just a few examples of common situations that arise in the context of photography of street art. Every situation is fact sensitive. If you have concerns about copyright infringement relating to street art, contact us to see how we can help.

ARTISTS, AUTHORS, BRANDING, COPYRIGHTS, INNOVATION, INTELLECTUAL PROPERTY

USE OF AN UNAUTHORIZED IMAGE MAY COST YOU THOUSANDS OF DOLLARS

Nearly everyone if familiar with the old adage “a picture is worth a thousand words”. It refers to the notion that a picture often times can convey a message better than a written description, That adage is particularly true when it comes to creating your company’s image and brand, both through traditional means and online through websites, blogs, Facebook and other social media platforms and the like. But beware, the unauthorized use of “free” downloaded images may end up costing you thousands of dollars.

The creator of a photograph or other image has the exclusive right under the law to display, publish or distribute copies of their work and to authorize (or not authorize) others to do the same. The use of a copyrighted image without permission could result in a statutory damage award of between $750 (minimum amount by law) and $150,000 (maximum award for willful infringement). Statutory damages are available to the copyright owner even if they cannot prove that they suffered any actual damages as a result of the infringement!

The availability of statutory damages has, in part, contributed to the existence of copyright trolls – lawyers who scour the web for copyright infringement and then take a cut from defendants who pay a settlement to avoid being sued. These trolls utilize sophisticated computer programs that scour the web 24/7 for unauthorized copies of protected images, so it’s not a matter of “if” an infringing image will be detected, it’s a matter of “when”.

How to avoid paying a toll to the trolls

The simple solution is to create your own images and avoid downloading and using any images from the web. There are a number of graphics software available for download, either paid or free, that can accomplish this task if you have some design skills. Alternatively, you could pay for downloaded images from a site such as Getty Images or Adobe Stock, or reputable free sites such as Pixabay, Unsplash or Dreamstime. When going with one of these options, particularly with the free downloads, make sure to check the “License Information” page of the website to make sure that the license for the image you are downloading covers your particular use. Also, if the download requests or requires credit be given (see image above), make sure to add the appropriate credits to or near the image.

What if I receive a letter from a troll?

If you have already received a letter from a copyright troll demanding payment for an alleged copyright infringement, you should contact an attorney experienced in handling copyright matters immediately. Depending on your particular circumstances, there may be legitimate defenses to the allegations. Even if you are in the wrong, often times a skilled attorney can negotiate a lower settlement payment and potentially save you thousands, if not tens-of-thousands of dollars.

The attorneys at Martin IP Law Group are experienced in representing clients in copyright matters including allegations of infringement for all types of creative works, including images used on websites, social media and blogs. Contact us today for advice on how to avoid paying tolls to trolls, or negotiating a reduction in the toll so you can go about your business.

ARTISTS, AUTHORS, COPYRIGHTS, INTELLECTUAL PROPERTY, SONGWRITERS

ARTISTS, AUTHORS, SONGWRITERS AND OTHER CREATIVE PEOPLE TAKE NOTE – SCOTUS ISSUES TWO DECISIONS THAT AFFECT THE RIGHTS IN YOUR WORKS

In our January 2018 blogpost, we reported to you that the U.S. Supreme Court was considering whether to hear a case that would resolve a spilt between circuit courts in different parts of the country as to when a copyright owner could file suit for infringement. On March 4th, in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, the Supreme Court did just that, holding that a copyright owner could not file suit against a potential infringer until the Copyright Office has acted on the owner’s application for registration. This effectively overruled the practice in the Fifth Circuit (Texas, Louisiana, Mississippi) and Ninth Circuit (California, Arizona, Nevada, Oregon, Washington, Idaho, Montana) of permitting plaintiffs to file actions for copyright infringement once their application for registration was filed with the Copyright Office.

Register your Work Early for the Best Protection.
In a unanimous opinion authored by Justice Ruth Bader Ginsburg, the Supreme Court held that the language “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made” enumerated in 18 U.S.C. 411(a) means precisely what it says, and that no suit for infringement may be filed until the work is registered. In so holding, the Court pointed to language in the very next sentence of Section 411(a) providing an exception to the registration requirement in cases where “registration has been refused”, in support of it’s reasoning that the mere filing of an application for registration is not sufficient to satisfy the statute. In the later case, where registration has been refused, the plaintiff must also serve a copy of the complaint on the Register of Copyrights, who may, at his or her option become a party to the action on the issue of registerability of the copyright claim.
So what is the impact of this decision on authors, songwriters, artists the other people who create copyrightable work? Because the creator of a work must now wait until a decision is made on his or her application for registration, we expect to see a substantial increase in requests for “special handling” of applications from those parts of the county where a mere application had been sufficient to allow suit to be filed. “Special Handling” with regard to a copyright registration is a process where, for an extra fee ($800.00), an applicant is effectively bumped to the front of the line and a decision on registration is made within five (5) business days instead of the normal six to eight months. The normal fee to file an application for registration is $55.00, so the extra $800 fee per claim can be significant for those who create a number of works they wish to protect, or for “starving artists” with limited financial resources. In addition, when you consider that for registrations filed within three months of the work’s publication or before the infringement occurs a copyright owner is eligible for statutory damages of up to $150,000 per infringement, plus attorneys’ fees, the case for registering works sooner rather than later is even more compelling.
The best strategy for the average author, artist or songwriter is to file their application for registration with the Copyright Office early – within three (3) months of publication, or sooner to preserve the potential recovery of statutory damages and attorney fees and to give the application time to be processed before infringement occurs. In contrast, a person who waits until infringement occurs will need to either pay an additional $800 for “special handling” or wait 6-8 months before suit can be filed. Add to that the potential forfeiture of statutory damages and attorney fees, and the case for early registration makes perfect sense.

Don’t expect Hot Dogs with your Ticket Plan.
The ability to maximize a damages award under Section 504 which includes statutory damages and attorney fees discussed above is even more critical now that the Supreme Court has limited what a prevailing claimant can recover as costs in a successful lawsuit. In Rimini Street Inc. v. Oracle USA Inc., another March 4th unanimous Supreme Court opinion, the Court narrowly construed what “costs” could be recovered under Section 505 of the Copyright Act which states that a prevailing party may, in the discretion of the court, recover “full costs”. The Supreme Court struck down the Ninth Circuit’s expansive interpretation of the term “full costs” to mean something more than the “costs” typically awarded in other statutes and governed by 28 U.S.C. 1821 and 1920. Writing for the majority, Justice Kavanaugh quipped that “‘A ‘full moon’ means the moon, not Mars. A ‘full breakfast’ means breakfast, not lunch. A ‘full season ticket plan’ means tickets, not hot dogs. So too, the term ‘full costs’ means costs, not other expenses.”

Recommended Actions.
In response to these two decisions, we think that copyright owners should take the following steps to best protect their creative works:
Take action early. If at all possible, file an application for registration of your work within 3 months of the first publication of your work, and before a dispute arises. This puts you in the best position to act when infringement does occur, and puts you in a position to maximize the potential damages available if you prevail.
Request Special Handling. If infringement is already occurring, or is imminent, you should request expedited handling of your application for registration. While the $800 filing fee may seem excessive, it is far better than having to wait 6-8 months for the Copyright Office to act while your valuable work is being pirated by others.
Don’t expect hot dogs with your ticket. Litigation is expensive, time consuming and emotionally draining. Don’t expect a court to fully compensate you for your loss by awarding you “full costs” for all of your out-of-pocket expenses. If you followed our advice under bullet point one above, you may be able to recover statutory damages which can help ease the sting.
Don’t go it alone. While fling your own application for copyright registration may initially seem easy and fun (if you are a masochist), those unfamiliar with the process can make errors that may delay the application or result in a refusal which places the owner in a much less-desirable position. The attorneys at Martin IP Law Group are experienced in applying for and obtaining copyright registrations for clients involving all types of creative works. Contact Us today to see how we can help you protect your most important creations.