(Today's Art Marketing Action column is written by attorney Kevin Houchin. Enjoy!)

September 18, 2006

by Kevin Houchin

Creative people are always trying to save a buck. That's not a bad thing unless you've opted to save the $45 fee to register a copyright. If you think your song, art, design, or other creative expression is going to be exposed to the public in some form--and that your work is good enough that someone might "accidentally" be a little too "inspired" by your work (in other words: rip it off) --then the $45 is the best money you'll ever spend.

Here's why:

1. All copyright infringement litigation must be conducted in Federal Court, and to get into Federal Court you have to have a valid registration before you can even file. In other words, to enforce your rights, you have to file anyway, so you should file right after you've created the work in question.

2. If you file BEFORE the infringing action (before your work gets ripped off) then you are eligible to receive both "statutory damages" of anywhere between $750 and $30,000 per infringement (each song on a CD, each photo, etc. produced is an infringement) and up to $150,000 per infringement if the infringement was "willfully committed." Additionally, if the valid registration was filed before the infringing act, you can also collect your attorney fees.

3. If you DO NOT file before the action, then you have to prove your "actual" damages (which can be hard in many cases) and you have to pay your own attorney fees.

What does this really mean? Let's say you would sell the rights to use an image in a magazine for $5,000. Now, let's say the magazine prints the image without your permission or paying you anything in a run of 100,000 copies--willfully ripping you off. If you filed the registration before the infringement, then you could collect somewhere between $750 and $150,000 for each of the image they used without permission (NOT for each copy produced) plus your attorney fees. This is strong incentive for the magazine to settle with you before trial.

If you had not filed the registration before the infringement, then you will have to prove the actual damages (in this case probably a max of $5,000) in Federal Court. You'll have to pay your own attorney fees, which would probably be at least $10,000 to take a copyright case through trial in Federal Court. So, they may have ripped you off, but you'll be at least $5,000 out of pocket to enforce your rights.

Registering your work is easy. Just go to http://www.copyright.gov  and download the appropriate form and follow the instructions.

[ Kevin E. Houchin is a copyright, trademark, arts & entertainment, and business development attorney located in Fort Collins, Colorado. He works with creative people and businesses across the United States. Visit him online at http://www.houchinlaw.com.  To contact him or to seek his counsel, call 970-214-6808 or email him at kevin.houchin@houchinlaw.com. ]