Friday, December 9, 2016

Bo's bLAWg - Change in DMCA Designated Agents & Takedown Notices

December 1, 2016 Registration Process change 

MJ Bogatin (“Bo”) of Bogatin, Corman & Gold, is an Arts and Entertainment Attorney in San Francisco.  He is also Co-President of California Lawyers for the Arts. Bo is available to answer some of your questions surrounding the business of Art Licensing. - THANKS BO!

If you run a web page that allows posting of any user-generated content (even comments), it is very important that you have a DMCA Agent designated to handle takedown notice requests and disputes so you are protected under the DMCA safe-harbor provisions. Any operator of such a website is deemed a “Service Provider.”  If a Service Provider does not have a registered designated agent and material is posted by one of your Users that infringes a third party’s copyright interest or other rights (i.e. a defamatory statement or violation of a third party’s right to privacy or trademark), then you can be personally liable as the publisher of such material!

However, as long as you as the Service Provider does not actively participate in the illegal posting, or make copies, or determine to whom it is to be shared other than by and through ‘passive’ operation of the website or online bulletin board, then the Digital Millennium Copyright Act (“DMCA”) offers the Service provider legal protection from liability, known as “Safe Harbor,” but only if the Service provider has listed a Designated Agent to receive objections and act in a proper manner with respect to removal of improper postings.
(See: )

As you may already be aware, YouTube, Instagram, Twitter, and all the major internet Service Providers have posted Terms of Use that include pages that detail how a person who objects to posted content is to notify them.  Perhaps you have had occasion to pursue such a process yourself when one of your copyrighted works was posted by a third party without your permission.  The removal request process involves sending what is called a “Takedown Notice.”  The specific content of the Takedown Notice is set out in online procedures such as this YouTube page:

However, most website operators are not large enough to have fulltime staff to handle takedown notices.  In the absence of specific Takedown Notice procedures, the DMCA sets up a process whereby the website proprietors can register their agent with the US Copyright Office to be contacted for this purpose.  Simply by designating the agent and making sure the agent acts reasonably and responsibly upon receipt of complaints and/or a Takedown Notice, insures that the website owner Service Provider will not be held liable as a publisher of the illegal or offensive content.

Since 1998, Service Providers have submitted paper designations to the Copyright Office, which the Office then scanned and posted on the Office’s website to make them available to the public. Modernizing this practice, the Office has created a new, fully-electronic online system through which Service Providers can more efficiently submit and update, and the public can more easily search for and find, Designated Agent information. The amended rules govern Service Provider use of the new system and update what is required of Service Providers to remain compliant with 17 USC 512(c)(2) for Safe Harbor purposes.

On Dec. 1, 2016, the U.S. Copyright Office launched its new electronic system to designate and search for agents to receive notifications of claimed infringement.  Going forward, all new DMCA takedown notice agent designations must now be made through the online registration system. Additionally, any service provider that has previously designated an agent with the Copyright Office through the old paper-based system will have until December 31, 2017, to submit a new designation electronically through the new system. Until that time, an accurate designation in the old paper-generated directory will continue to satisfy the service provider’s obligations under 17 USC 512(c)(2).

You can access the new system at:

These DMCA filings will expire every three years, so they will need to be renewed.  The Copyright Office’s new system is supposed to send out email reminders.  We’ll see about that(!)
Filing fees are significantly lower than they were previously:  now $6 per entity.  All alternative names that the public would be likely to use to search for the Service Provider’s Designated Agent must be provided.  There is no limit to the number of alternative names, URLs, service names, software names, and other commonly used names that can be listed on a Service Provider’s filing for this fee.  However, separate legal entities must file separately and are not considered alternative names.

The Designated Agent does not have to be a natural (living) person. Service Providers now have the option to designate a specific person (e.g., Jane Doe), specific position or title of an individual (e.g., Copyright Manager), a department within the Service Provider’s organization or even a third-party entity (e.g., ACME Takedown Service) retained to handle Takedown Notices.

The Designated Agent’s physical mail address, telephone number and email address must be provided to the Copyright Office, and a Designated Agent may now provide a post office box to be displayed as its physical address. However, in a nod to technological obsolescence, a fax number is no longer required.

Disclaimer: The information contained in this website is not intended as legal advice. Because the law is not static, and one situation may differ from the next, we cannot assume responsibility for any actions taken based on information contained herein. Also, be aware that the law may vary from state. Therefore, this website cannot replace the advice of an experienced attorney. Receipt of this information does not create an attorney-client relationship. MJ Bogatin, Bogatin, Corman & Gold,

© 2016 MJ Bogatin

Have a legal question? email it to I will forward it to Bo. It might be a blog post! You can search "Bo's bLAWg" to read more posts. I am looking forward to your comments and thanks for sharing this great information on social media.


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Friday, December 2, 2016

Artist Spotlight - Steph Calvert


Tell us a bit about yourself: Did you go to school for art? Are you self taught? 
I was the arty kid back in school; I can still remember getting in trouble in seventh grade for looking out the window and drawing instead of paying attention in class. Strangely enough, in high school I was fighting that and seriously thinking about going to school to be a vet - I even took classes like Latin (nerd alert!) that I thought would be helpful in college...

And then junior year, I remembered that vets deal with blood and needles.

So that was the end of that.

I went to Savannah College of Art and Design and graduated with a BFA in computer art in the spring of 1999, focusing on 2D hand drawn animation. When I came out of school, there was less and less traditional animation positions - especially for a newbie with no work experience - so I've been adapting my skills ever since.

I've worked as an in-house artist for OshKosh B'Gosh, I've illustrated two travel themed coloring books, and most recently I've created repeat patterns and t-shirt graphics for Kohl's as well as created a custom pizza box for a client that's literally COVERED with hand lettering and fun drawings! There's some really exciting new opportunities that have been coming in, but it's a tad too early to mention specifics. 

Do you work in just one medium? Several?
As I've grown with my art over the years, fresh techniques get added to my process. Within the last year I feel like I've really honed in on my "style". It's all about digital painting in Photoshop, mixing in layers of hand lettering created with either paint or markers, and bringing lots of hand drawn or painted textures to the party. It's a great way to create pieces that are easy to work with on the production side of things, but I'm not chained to the computer every step of the way.

20+ years of creating artwork professionally on computers has left me always thinking and creating in layers and workability for production. When I draw with markers or paint in traditional media - acrylics, watercolors, or gouache, I usually play around on paper, and then scan everything into the computer at as high a resolution as possible and pull together my finished pieces there. Live trace, vector bits, and smart objects are my best friends. Outside of my husband of course.

I really like the control I have in Photoshop - I can call out specific Pantones, I can get more precise, I can edit that one little stray line that isn't quite working with the rest of the piece. Most importantly, everything and I mean everything is separated out into layers so I can go back and change things easily. Photoshop gives my clients peace of mind knowing the ease of production and editing they'll experience while working with me.

What inspires you / where do you get inspiration from?
I pull so much inspiration from my life! I've been a self employed work at home mom since our son Phil was born in 2010. Nowadays, he's in kindergarten, but his little sister Joy will be in the studio with me until she starts pre-K in a couple of years. My family is hilarious - there's lots to get inspired by.

My latest collection for licensing, This is Halloween, is inspired by some decorations my son Phil and I bought ages ago at a dollar store. My kids love the fun characters and the bright happy colors - even though those little cardboard cutouts have taken a serious beating over the years, they HAVE to have them on the walls every year! I wanted to create a group that made kids smile just as much, in colors that were classic and easy to work with alongside someone's existing Halloween home decor. I've also got a few kids book ideas on tap based on funny things that we've experienced as parents, and don't even get me started on all of the greeting card designs I'm starting to work up based on hilarious one liners that have been blurted out in our house over the years!

How did you start licensing your art?
As I ventured on the path of self employment, I was finding more and more clients were asking for web design. I was happy to oblige; I was great at it and the paycheck was fairly steady. But over time, I was finding that I was becoming more and more unhappy with my work. I missed drawing. About a year ago, I slowly started to pull away from web design; I took advantage of the Black Friday deal on some Make Art that Sells courses from Lilla Rogers, I worked my way through Julia Cameron's The Artist's Way and actually stuck it out through all twelve weeks over the summer... taking the leap of faith is really what helped push me towards art licensing.

What are you working on now?
I'm wrapping up 2016 with lots of great Christmas art that'll be available for licensing, and I'm fine tuning what art I'll be working on each month for 2017. I'm playing with the idea of working within a theme for each month, a month ahead of time. So January I'll work on all things love, so I have lots of great Valentine's theme art to share all February long.

I'm also honing in on what I want my Instagram feed to look like, because that's a great way to get exposure. The balance for me is to share enough to get art directors interested, without giving away the really good stuff. One of my strengths after so much time spent working as an apparel illustrator is coming up with funny sayings that haven't been totally overused in the marketplace. It's been interesting trying to figure out how to share without sharing too much if that makes sense.

Any great advice for our readers?
Failure is for quitters - if you don't ever give up on your art, you'll never fail.

Before I shifted focus to my illustration work, there was a lot of things I was pretty attached to - like my old business name. As I started working with my agent, I quickly started to realize that if I wanted real and drastic change in my career, I needed to be as open as possible to that change! Here we are six months later - I've got a new website, a growing portfolio that's finally showing a cohesive and distinct style, and lots of prospective projects on the horizon. None of this would have been possible if I stubbornly held on to the old ways.

And keep in mind - an illustration agent isn't the silver bullet that is going to make a deluge of work come busting down your door the second you sign on. When you connect with an agent, marketing your work is still your responsibility, but now the exciting thing is you're part of a team. There's more than one of you working on bringing in projects and licensing deals - they're an advocate for you if a project goes south, and can be an amazing sounding board as you work through the direction your career needs to take. My agent Liz Sanders has been so key in helping to shape my illustration adventure!

Anything else you would like to share with us?
I'm always learning something new - it keeps things interesting. A couple of months ago my friend Kim and I took an oil painting class for the first time, and we were hooked! I don't know how well oils would work for art licensing since it takes such a long time for the paint to dry, but I'm definitely continuing to explore this medium moving forward.

I have a group of artwork that'll be seen on girls t-shirts in Kohls in Spring 2017, and I'll also be working on a kids book pitch for one of my many ideas to start shopping around next year. I'm looking forward to connecting with a literary agent that works with illustrator authors for some really fun titles!
Are you an early riser? or night owl?

As much as I'd love to be a night owl... I'm definitely an early bird. Even when the kids don't wake up horrendously early on a summer morning, I'm still wide awake by 8am.

The upside? There's coffee.
What is your favorite food?

All of it... Is all of it an answer?

I just like snacks is all.

But if I had to narrow it down...

I'd have to say cookies, coffee, macarons, chocolate, pizza, chips, salsa, donuts, cakes, pies, ice cream, fried chicken, cream puffs, bacon, marshmallows, Jelly Bellys, burritos, hamburgers, spaghetti, crab legs, charcuterie plates, grilled cheese sandwiches, quiche, soup, deep fried Oreos, deviled eggs, the candy parts of trail mix, midnight pancake parties, muffins, steak, and all you can eat buffets. And cheesecake.

You can find Steph:
Liz Sanders Agency:

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Tuesday, November 15, 2016

Bo's bLAWg - Product Liability Insurance: What you should know

MJ Bogatin (“Bo”) of Bogatin, Corman & Gold, is an Arts and Entertainment Attorney in San Francisco.  He is also Co-President of California Lawyers for the Arts.  Bo is available to answer some of your questions surrounding the business of Art Licensing. - THANKS BO!

What is product liability insurance and do I need it?  Thanx.  Liz

Thanks for your question, Liz.  Way back in my first Illustrators’ bLAWg, I addressed critical issues in a manufacturing license.  Product Liability Insurance was one of the more esoteric issues that I did not mention in that bLAWg.

Product liability insurance is protection against claims of injury associated with a manufactured product.  It is usually purchased by the manufacturer to cover claims that someone has suffered damages on account of some dangerous condition or flaw in the product that has caused injury in the course of use of the item.  The short answer to your question, Liz, is “No, you do not need to obtain product liability insurance for yourself unless You are manufacturing products.”
Nowadays, more and more artists are arranging for manufacture of their own product lines and offering them wholesale or retail.  To the extent that an artist is putting herself in the vertical line of sales, it would certainly be prudent to have product liability insurance coverage.  Ideally, however, this is not something the artist should have to purchase for herself, but coverage she could obtain by and through the manufacturer.  Because product liability insurance is a normal business expense of all manufacturers, it is fairly standard for people who make individual contributions to the product being manufactured have the manufacturer make them an “Additional Insured” to the manufacturer’s policy.  However, if the manufacturing has taken place in China or some country where the artist cannot rely on Additional Insured coverage to be provided by such manufacturer,  (or an intermediary “packager” or distributor), then she may do well to obtain her own coverage if the product involved carries any risk of consumer injury.

While it is hard to imagine how an illustrator who licenses an image for use in a given product might ever be personally liable for a product liability claim, it is not unheard of for the illustrator to be named in a product liability complaint.  Since product liability insurance includes legal defense representation, being an Additional Insured on the manufacturer’s coverage is an important consideration.  The manufacturer can most likely have contributors like an artist added without charge, but having the coverage name you are the artist can be invaluable.
Obviously, the artist would not typically be legally responsible for the harm done by the product.  Because a mug with your illustration was poorly made and had a tendency to shatter and cause injury, the artist would not be found liable even if they were sued.  The only situation in which an artist client of mine has had to defend, is when a Chinese-manufactured puzzle had been printed with ink that turned out to be the cause of a child’s illness.  She had nothing to do with the choice of ink used on the puzzle, and was in short order dismissed from the action by the manufacturer’s insurance defense lawyers.  But being named as an Additional Insured gave her a right to rely upon the coverage, without first having to claim against the manufacturer to defend and indemnify her.  Were that tender not accepted, in the absence of the coverage, the artist might be out-of-pocket to defend, even if they were not liable for the claimant’s damages.

But what if it was the artist who had arranged for the Chinese-publication on behalf of the manufacturer?  The product liability coverage could be a financial ‘life-saver.’  The lessons learned were:  have product liability coverage in place just in case, and don’t let your child eat puzzle pieces. 

Disclaimer: The information contained in this website is not intended as legal advice. Because the law is not static, and one situation may differ from the next, we cannot assume responsibility for any actions taken based on information contained herein. Also, be aware that the law may vary from state. Therefore, this website cannot replace the advice of an experienced attorney. Receipt of this information does not create an attorney-client relationship. MJ Bogatin, Bogatin, Corman & Gold,© 2016 mjbogatin

Have a legal question? email it to I will forward it to Bo. It might be a blog post! You can search "Bo's bLAWg" to read more posts. I am looking forward to your comments and thanks for sharing this great information on social media.


Make my day! and Buy me a cup of coffee (PayPal Link in right side bar, you don't need a PayPal acct.)

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Friday, November 4, 2016

Artist Spotlight - Cathy Braffet Richardson


Tell us a bit about yourself: Did you go to school for art? Are you self taught?
Art to me: The constant appreciation of visual awareness is something that inspires me every day... whether working on a freelance project, creating my own line of designs, hosting a workshop or collaborating with my kids on an art project or dreaming about starting a creative business with my daughter Melissa, art and the creative process is part of my soul.

Looking back to my drawings and paintings as a kid, I have always loved bright color, whimsical line and bold shapes.​ ​From a very young age I remember creating art.... when ever I could. I vividly remember how I felt looking at colors in the sky at different times of the day, and the negative space/composition looking up into the sky through canopy of leaves in a tree. Nature’s lessons shaping my passion of graphic arts and design before I even knew what that was. I believe my creative connection with others, a relationship with nature and a spiritual trust have all built my foundation as an artist.

I received my BFA from Syracuse University's School of Visual Art, where I learned creative discipline and confidence that I could be one day be successful doing what I love. THIS, and supportive parents were the key to the start of my professional life as an artist. After college I studied abroad in Europe through a post graduate semester at Parsons and found my passion of printed fabric and architecture. Both geometric, and organic forms and the repetition in both design disciplines have also shaped my style and visual presence. During my early 20s I lived and worked in NYC. My first graphic design position was at Kick Design where I learned what licensed character art "was". The impact of how the design process of licensed consumer goods was a field I would eternally be connected to. In the mid 90s I was hired by The Walt Disney Company in Los Angeles as a staff designer at Disney Consumer Products​. ​This to me was an artist's dream come true.​  ​
Learning about licensing, design in consumer markets from my mentors during this time of my life helped me build confidence in own art style and brought me to where I am today. My licensing agents, Paul and Marcy at Creatif have been wonderful helping me grow as an illustrator. My clients help me to grow professionally but also allow me to keep current in market trends and ​in​ technology.
​Most importantly, ​​my family teaches and supports me daily with creative balance and bless my life. This is an art of itself.

Do you work in just one medium? Several?​  ​
​On a daily basis I work in Adobe Illustrator and have a love affair with vector points for sure. That​ said, it is my natural joy to paint and draw in a mixed medium format with acrylics/dyes/pens brushes and textures in my sketch books. Creating art with others in either a one-on-one or workshop format “fills my cup! And gets the creative juices flowing”.

What inspires you / where do you get inspiration from?​ 
I find inspiration from my kids; their interests, their lifestyle markets in apparel, home goods, social media trends, music and actually their dreams and desires. I also have always found inspiration through color palettes in fashion and in nature, amazing visual artists, activists and yogis and of course our beautiful Texas Sky....

How did you start licensing your art?​ 
Throughout my career I have worked with entertainment licenses ie Disney etc, designing art for a license OR designing art-product for a licensee. I thought for many years, if flowers I create for Minnie Mouse can sell and be admired, "MY" Flowers for Cathy B. can sell too! Creatif, my agents and I found each other at a perfect time and the story moves on and up from there :)

What are you working on now?
Currently I am freelancing for The Disney Stores and saving up my pennies to start a creative business with my daughter Melissa. We are so excited to create & sell "our art line" on t shirts and other products! Its WIP and very exciting!!!! I am also working on a line of baby prints in a watercolor style which is sort of new for me.

Any great advice for our readers?
My advice to any creative person, is DON'T GIVE UP! And to ​have an ​open mind to see and hear others in a creative process. I have learned there are MANY ways and many directions to take something and always areas to grow - a project, a career direction and a dream. Knowing or experiencing what you "don't like" is just as important as knowing what you LOVE.  Don't be scared ​professionally ​to share your art with others. Supporting other artists, trusting in creative collaboration is amazing! Respect, have gratitude and embrace the "art" of communication and connection with others, with your art and with your creative environment.

Anything else you would like to share with us?

I would love to ask the reader a question, What is your life purpose and what is your mission with your art? This is something I have been working on personally for the past few years and has been extremely important to me in my creative and professional journey. What I have come up with is this: AND I LOVE it. It have brought a deeper purpose into my art and my direction.

care. create. communicate 
This is my mission and my creative purpose.

Gosh, I'd love for you all to check out my website. In the new year, it will be updated with some really fun new and current projects​ as well as a link to "our store" My daughter and I are opening up a very special little business!

Are you an early riser? or night owl? 
I am a total night owl and some of my best work comes from working all nighters and sometimes even last minute deadlines! (shhh!) :) ​Finding your groove with sleep patterns/creative process for sure helps​ with starting and or finishing a project! Now that took years to figure out.....

What is your favorite food?​ 
Dark chocolate, my daughter's chocolate chip cookies, "The Fountain" veggie juice from Juice Land​ and yellow tail sushi.

You can find Cathy Braffet Richardson:

I also have a little word of mouth local"ish" side business creating personalized gifts​ ​that might be worth checking out:

Creatif Licensing:

Lastly, I want to thank Annie for connecting with me through linked in, this is such a powerful networking​ platform. Used correctly with a little elbow grease and communication skills, connecting with professionals here has been very successful.


Make my day! and Buy me a cup of coffee (PayPal Link in right side bar, you don't need a PayPal acct.).

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Thursday, October 27, 2016

4th Annual Mother Daughter Pumpkin Carving Contest!

Happy Halloween!
I have moved the contest this year over to my new "an artist's life" blog.

Please head over there to vote for either "Nemo or Snoopy"...I have lost 3 years in a row! Hoping this might be my year.  click here to go to my new blog, see previous years' photos, & what the winner gets.

Or you can leave a vote in the comments below :-)

You all are the best - SO FUN to connect with you, thanks,

Friday, October 21, 2016

Agent Spotlight - Donna Westman, DSW Licensing, LLC.

 click images to view larger

How long have you been in business and how did you come to be an agent? 
Next year I will celebrate my 15th year in the art licensing field. In 2002 I was approached by an artist to partner with her to market her illustrations to acquire licensing deals with manufacturers. At that time I had limited knowledge of what art licensing was, however I did know an extensive amount about sales and marketing. My career for 15 years prior to meeting her was with a motivational speaker and writer helping build that business into a successful, lucrative career. The same skills that I learned in that business, I have applied to running DSW Licensing. Since that initial meeting in 2002 with the one artist, I have grown my business to include five highly talented, experienced artists that I am proud to partner with.  

Who are the manufacturers you work with - how did you establish those relationships?  How do you market artists?
I have partnered with over 85 different manufacturers of every imaginable product in the marketplace. With a collaborative effort between our agency, the artist and the manufacturer, strong partnerships have been developed over a wide spectrum of reputable companies within the home décor, paper products and giftware industries. One of the most exciting things about this business is to walk into a store and see DSW licensed products on the shelves and selling! It puts a smile on my face to see our flags displayed at Lowes, paper tableware at the local grocery store, or spot our wall décor and pillows at Target! We have had products in mass retailers as well as smaller, independent retail stores throughout the country.

Establishing these partnerships with manufacturers has been accomplished in various ways, but mainly through good old fashioned hard work and constant, consistent marketing and follow-through! I have exhibited at both Surtex and the Licensing Show, which have been beneficial, however I have found that it’s the daily work in my office of continual contact and communication through emails, my quarterly DSW E-News, utilizing social media (Facebook, Instagram, Linked-In, Twitter), and picking up the phone to talk to a client to hear what their needs are. (You can get a lot of information just by listening!)  And, a prompt response time when a request comes in, is always appreciated by clients.

 I also have attended for the past 15 years trade shows annually including the America’s Mart, Dallas Trade Show, Las Vegas Market, San Francisco Gift Show and the New York Stationery Show meeting one-on-one with clients at these shows as well as at their company headquarters. I have established terrific relationships over the years with some of the top manufacturers in this industry and am always looking for companies to align with. There are always new companies to research and present my artists designs to and very important that I stay on top of whom is the correct person to be sending the art to, as company contacts change often.

Do you have employees? 

I am a one woman show!  However, since I work so closely with the artists that I represent, they are, in some ways, considered my business partners. I think what differentiates my company from many other art agencies is that I keep the number of artists that I represent to a select smaller number, where many agents have a long roster of artists. I am very familiar with my artists’ portfolios because I work alongside each of them on an intimate basis. Knowing their portfolios’ enables me to curate and tailor proposals to manufacturers. And, what I have found is companies prefer to be sent artwork that is tailored to their specific needs and product formats, and not just a laundry list of images that they then have to weed through. They don’t have the time to do this, it is up to me as an agent to listen to their needs and then send a tailored, targeted submission. 

What do you look for in an Artist? 
There are several things I look for in an artist, but mainly art that is licensable!  I receive on a weekly basis submissions from artists and designers that are eager to get their designs licensed.  The vast majority are not images that I would present to my clients.  The art may be great for galleries or advertising campaigns, but not art that can be applied to a variety of product formats.  I always tell an artist to actually go walk retail stores and look at what is on the shelves. Buyers are very rarely looking for the neon unicorn on a plate. But, most likely you’ll see a more traditional Santa, beautiful floral, or fun and trendy word art. I also prefer an artist that has a wide portfolio to pull from, with all seasons. I license a lot of seasonal artwork, including, spring holidays, and fall holidays, especially the two big selling holidays, Harvest/Halloween and Christmas. I also partner with artists that are flexible and understand that the buyers make the final decision on the art. Buyers and creative directors are looking for what their customers’ needs are and what sells. It’s all about making the numbers work for manufacturers and it’s about what we can do to help them accomplish that! My artists are always “in the loop” on what requests I am receiving from potential licensees and art trends that they are looking for in their next product release. Many times my artists have taken these art “call-outs” and created new art collections based on the client’s specific requests. As a result, we have had quite a lot of success with securing licensing deals because of the time put in to listen and review what their needs are and create art accordingly.   I also look for artists that understand how to work in Photoshop, or some similar software so their designs can be applied to multiple product formats, and completed in an expeditious manner. The industry works on a quick turnaround these days, so having these necessary computer skills is critical for success.   

I also look for integrity and mutual respect when partnering with artists. It’s a close working relationship between me and the artists, and so these two qualities are important. My company statement is “At DSW Licensing you will find the distinctive art you need to have a successful product line, and at the same time, make each project an enjoyable experience with the highest level of excellence and integrity.” The five artists that I currently represent, I have worked with for many years.  I am grateful that I have such fabulous artists that are on my team.

How much work do you expect an artist to create?  
As I tell my artists, the more new art collections you send me, the more opportunities you have to get licensing deals! Of course, I would love to receive a new collection every week from my talented team, however that is the ideal. Some are more prolific than others, and some art requires more detail than others, therefore I may not receive as much from them. With that being said, if I find that I am not receiving new art on a pretty consistent basis, than I may need to look for a new artist to fill that void. Artists that are serious about this business know how important it is to stay on top of the trends and create new art on a regular basis. Otherwise, it’s just a hobby, not a business. 

Any great news you would like to share? 

I am pleased that we have had one of the best years in art licensing this past year.   I had many new manufacturers come on board, as well as licensees that we have worked with for many years expand their collections with new products. One of my artists has had her beautiful Christmas collection expanded by Demdaco after a very successful launch of her initial collection last January. It is rewarding to have a company do so well with their sales figures that they come to you to add more product sku’s for a future collection.        

How has the Art Licensing business changed over the years?
So much has changed and evolved in the art licensing industry! I would say the most significant changes are due to the digital age. My arms are not as in shape as they used to be since I don’t have to cart around 15 pounds of binders at shows! Now I present art from a SURFACE or iPad. When I began this career, all the art was printed out, put into folders with cover letters, post cards used as marketing tools, contracts were all mailed. Today it is predominantly digital marketing, including art submissions, email introductions, and E-contracts. And, there are all the Internet marketing tools such as websites, Facebook, Instagram, and YouTube. It’s completely transformed how I do business. One question that I get asked often is why I don’t have all of the artist’s designs on my DSW Licensing website. I only keep a small sampling from each artist to showcase their style and various themes.   We prefer not to put their entire portfolio online for a couple reasons. One, I prefer to hear from clients so I can tailor the art specifically for their product formats. And, secondly, unfortunately, we have found that there are online “opportunists” that may copy or infringe on the copyrights of artists therefore, I find it is best that I send out the artwork.

Any advice or information you would like to share?
This is a very unique business and takes a lot of the 3 P’s- patience, persistence, and perseverance.    There have been some companies that I have marketed to for ten years that I finally ink a contract with because I didn’t give up and kept consistently communicating with them. Sometimes the timing may not have been right, or the art just wasn’t what they were looking for during that season. The slogan that patience pays off, well, in this industry, that rings true! Not only can it take a long time to finally get the license agreement, but then there is the long process from the time I send a contract to when we will actually see any revenue, unless an advance was negotiated.  In between that is pre-production, sampling, getting to the market, shipping, and then you’ll see returns on the royalty reports.  This timeframe can be anywhere from 1-2 years. As in any business, there are days when you may feel discouraged, but I always try to focus on the successes and opportunities in this business.  All industry’s have their ups and downs. You just have to keep your head up and the art flowing! I like to think that the work we do is putting a smile on someone’s face as they enjoy one of our licensed products in their home.   

You can find DSW
Company website:

Connect with DSW through:

@dswlicensing or @donnawestman

Donna Westman

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Monday, October 17, 2016

Bo's bLAWg - Copyright Small Claims Court

MJ Bogatin (“Bo”) of Bogatin, Corman & Gold, is an Arts and Entertainment Attorney in San Francisco.  He is also Co-President of California Lawyers for the Arts. Bo is available to answer some of your questions surrounding the business of Art Licensing. - THANKS BO!

Dear Readers,
Since July I have had a number of inquiries on my opinion of the proposal that the Copyright Office set up Small Claims Court. I’ve been mulling it over.  Here are my thoughts:

On July 14th, Rep. Hakeem Jeffries of New York introduced to the United States House of Representatives a bill, known as the Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2016.

CASE is for the most part based on a Copyright Office Report released in 2013 speaking to the question of whether or not such a forum would be in the public’s best interest.  There is certainly good reason to consider the prospect.  Under the existing Copyright Act, the only forum for infringement claims, large or small, is Federal Court.  This is truly a situation where a wronged party whose original work has been copied, plagiarized or distributed without their permission has no choice but to “make a Federal case of it,” unless the matter can be resolved informally.  CASE would set up an alternative forum intended to be more accessible and efficient than your local Federal District Court.   Would it be?  That is yet to be seen.

In my practice, I have had no real problem resolving infringement claims on behalf of my plaintiff clients and avoiding drawn out litigation.  The reason for this is that my clients have been advised to register their copyrights within three months of first publication.  Having done so, I can leverage the two key benefits of registration into quick and (usually) substantial settlements. 

As mentioned in previous January 2015 bLAWg, registration benefits include the right to claim statutory damages of up to $150,000 and obtain prevailing party attorneys’ fees and costs against the infringing party – instead of being limited to “actual damages (the infringer’s profits if any), and being out-of-pocket for attorneys’ fees and cast. 

Even the most obstinate infringer will capitulate when their own attorney tells them they will have put up a large retainer to defend the claim and, when they lose, they will also have to pay my substantial fees.  When faced with this reality, I rarely have to file an action.  When I have to file, as soon as the defendant looks to retain counsel, I get a decent settlement offer.

However, I also get calls quite often from prospective clients whose works have been infringed, but who have not previously registered their copyright.  If the infringer does not have ‘deep pockets’ (assets) and there is no viable ‘downstream’ wholesale distributor or retailer with substantial profits from the infringement, it is clear that despite being harmed, such claimants have no viable remedy.  That is where I can see a Copyright Small Claims Court play an important role.

CASE describes the establishment of a reasonably well-conceived Copyright Claims Board with qualified copyright attorneys serving as “Claims Officers” empowered to hear infringement matters.  They would assure parties proper use of procedural due process, oversee basic discovery, conduct hearings and issue findings that would be published, and subject to filing as Judgments in the District Courts for collection purposes.  Unlike most State Small Claims Courts, parties can use attorneys or certified law student counsel.  All well and good.

Like the 1976 Act, claimants would be entitled to elect either Actual Damages (including the infringing parties’ profits), or Statutory Damages.  However, statutory damages would be capped at $15,000 instead of $150,000 – but only in the event of a registration prior to infringement (or within three months of original publication). In the absence of such registration, the statutory damages limit would be $7,500.

Since it is easy to leverage settlements with pre-existing registrations, it is hard for me to imagine anyone electing to pursue the Small Claims alternative unless they did not have a registration before the infringement.  In that regard, and given the prevalence of infringements where there are little or no actual damages or profits, the $7,500 statutory damage prospect would be a keen advantage – one that may pave the way for settlement early in the Small Claims process if the Defendant is at risk of that.

HOWEVER, what I believe to be the fatal flaw in the CASE legislation, is that participation by the parties is voluntary. (See Section 1403(a).)  The defendant may “opt out!”  (See 1405(h).)  Facing a potential statutory liability of $7,500, why wouldn’t they opt out knowing that the Claimant will be out-of-pocket to bring an action in Federal Court, and no statutory damages are available.

Nor is the Copyright Claims Board empowered to grant injunctions against ongoing infringements.  That limitation in itself would rule out Small Claims as a reasonable forum for many situations where what is critical is not present damage, but the long-term damage if the infringing activity is not stopped immediately.

While I can understand the basis for not affording the Copyright Claims Board the authority to consider and grant injunctive relief, until the opt out provision is fixed, I fear that the CASE court will end up being the forum that is used by ‘copyright trolls.’  There are many entities that search the internet for copied illustrations, photographs, music and/or film clips and make unreasonable demand$ upon the website owners who have innocently or mistakenly allowed uploading of infringing material. 

Taking down the offending image or material is not enough for these outfits.  Once they have identified what they believe to be an unlicensed use, they continue to send demand letters and threaten legal action.  Rarely, however, do the actual copyright holders take the initiative to go after such infringing use if the offending item has been removed from the website.  In the case of ‘innocent’ infringement, it is likely the damages awarded in Federal Court will be as low as $200.  Nor will the Court necessarily award them prevailing party fees since the damage was minimal and the defendant complied promptly with the ‘cease and desist’ letter.

I know a number of artist organizations are supporting the legislation.  The Graphic Artists Guild appears to endorse the supporting efforts of the Coalition of Artists which includes the American Photographic Artists (APA), American Society of Media Photographers (ASMP), Digital Media Licensing Association (DMLA), National Press Photographers Association (NPPA), North American Nature Photography Association (NANPA) and Professional Photographers of America (PPA).

Perhaps they do not share my concern over potential misuse of the Small Claims Courts or that their members will not be able to make meaningful use of it due to the Opt Out provision.  Or, perhaps they are pursuing changes in the CASE provisions to address those matters.  If you are a member, I recommend that you share your own view with them.

Disclaimer: The information contained in this website is not intended as legal advice. Because the law is not static, and one situation may differ from the next, we cannot assume responsibility for any actions taken based on information contained herein. Also, be aware that the law may vary from state. Therefore, this website cannot replace the advice of an experienced attorney. Receipt of this information does not create an attorney-client relationship. MJ Bogatin, Bogatin, Corman & Gold,


Have a legal question? email it to I will forward it to Bo. It might be a blog post! You can search "Bo's bLAWg" to read more posts. I am looking forward to your comments and thanks for sharing this great information on social media.


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