Bo's bLAWg - Performance Provision

MJ Bogatin (“Bo”) of Bogatin, Corman & Gold, is an Arts and Entertainment Attorney in San Francisco.  He is also a long-time President of California Lawyers for the Arts. www.calawyersforthearts.org. Bo is available to answer some of your questions surrounding the business of Art Licensing. - THANKS BO!
 
Dear Bo,
I licensed some illustrations to a group that provides imagery to manufacturers.  Only one license was ever entered into to my knowledge.  It was provided on an exclusive basis!  My agents indicate that to their knowledge my illustration was never used on products as anticipated.  I want to leave this licensing group and recover rights to my illustration.  What are my rights?  Hillary

Dear Hillary,
There are a number of issues included in your question.  I cannot answer any of them definitively without looking at the existing contracts, but they are good for this bLAWg!
Here is how I would approach the matter.

First, I would look for the Performance Provisions of each contract, the one with your Agent group and with the manufacturer.  I would hope that you did not sign up long-term with this Agent without there being some minimum level of success with respect to licensing of your illustrations in particular.  Back in October of 2015 I discussed the use of “Minimum Thresholds” to insure that a manufacturer was making adequate use of your illustrations for the ongoing benefit of each party.  (see http://annietroe.blogspot.com/2015/10/bos-blawg-get-back-your-rights-royalty.html)

The same kind of Minimum Threshold approach can be used with an Agent.  They may need rights without minimum earnings for a year to ‘ramp up’ on their promotion of your artwork, but by the end of the second year I would hope and expect that they would have secured a sufficient number of advance$ to meet their own minimum expectations as well as yours.  As I mentioned in Oct. 2015, the Licensee’s or Agent’s own projections on these expectations can serve as the contract Minimum Threshold.  If the Agent will not agree to financial minimums, they may consider a minimum number of licenses to be obtained within the first two years of the Agreement.  If that expected minimum is not met, the provision would allow either Party to the Agreement the right to terminate it early.

With respect to the manufacturer, the common “Performance Provision” requires them to make use of your licensed imagery within a certain number of months since execution of the Agreement, or lose the licensed right to use your imagery.  The basic Performance Provision is intended to insure that your illustrations are not being ‘banked’ but must be used within a reasonable period of time.  If the manufacturer fails to move forward with the expected product use, you (or your Agent) would have the right to terminate and recover your rights to the imagery.  See if there is not a Performance Provision in the License signed, and if you do not already have the right to terminate that license.

I should mention here that sometimes the manufacturer is just about to go to market with a product featuring your illustration(s).  If they are ‘in breach’ by not meeting the “performance”  deadline of the original License, you can jam them up by given them notice of a breach of contract and demanding that they “cease and desist” from use of your imagery.  A compromise at that juncture might include a significant new additional advance on royalties.

However, do not overlook the possibility of a contract “Cure Provision.”  Does the manufacturer License give the manufacturer additional time to cure the claimed breach and avoid the termination right?  Many do.  In which case, not only must Notice of the Breach be given in the  manner specified in the License, but the manufacturer may be able to avoid the breach altogether by getting the product with your illustrations into distribution within the (usual) 30-day cure period.  Don’t be disappointed if that is exactly what occurs.  Isn’t that what you actually wanted in the first place – the products with your artwork in the marketplace?  Sometimes, the manufacturer just needs to be hurried along.  The Performance Provision can be useful for that purpose.

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, www.bcgattorneys.com
© 2017 mjbogatin

Have a legal question? email it to info@AnnGraphics.com. 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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Bo's bLAWg - Cost Benefit Analysis of Copyright Registration, and Derivative Works

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

Dear Bo,
I have two questions if you don't mind. I am a casual print-on-demand artist for about eight years now. I have never registered my work for copyright.

1) Let's say I have about 100 designs published over time with about 30% of them actually sold through PODs. Am I understanding correctly that each design would now require a separate copyright at this late date? I do not know the dates of each uploaded image.

2) In the event I use the same design and change out the text in the picture do I copyright the design only or copyright each rendition including text? This question applies to color only changes too.

I bring in at most one to two thousand dollars of income a year. It seems like it is very costly for me to go back and copyright them at this late date. I currently don't license my work but have been approached several times over the years to consider it. I didn't have the time and knowledge back then but could be interested in the future.
“Anonymous”

Dear Anonymous,
First Q:   I agree that it is likely unduly expensive for you to individually register if you have in fact “published” your 100 +/- designs at different times, so would not be eligible to register them as a group such as “My Best Designs of 2016.”  You read last month’s bLAWg closely and are certain that the 70% that have never sold have in fact been ‘published”?  http://annietroe.blogspot.com/2017/06/bos-blawg-copyright-registration-of.html

As I mentioned last month, the designs must have been offered online or otherwise with the purpose to distribute copies to people who will license it for merchandise and further distribution.    If you have ‘merely’ displayed your designs online on your own website and not did necessarily specifically offered them to be licensed, some or all of the 70 might still be unpublished. And, as I mentioned last month, unpublished works can be registered in a group under a single fee if they are all yours alone.

Assuming that it is clear the 70 unlicensed designs were in fact clearly offered for licensed use, and they were not posted in groups that would qualify for registration together because they have the same publication date, then, to save money, I recommend that you focus on the designs that have been licensed.  It is likely that those designs will have broader public dissemination and thereby be more vulnerable to infringement. If a group of those 30 were licensed together, then they too could be registered as a group rather than individually.

Otherwise, pick and choose among the 30 as to popularity and quality and begin your registration efforts with those, since presumably, they are the ones that are most likely to be infringed, so you want the statutory benefits that accrue with registration before infringement for at least those.  Once you prevail on a copyright infringement claim, you may well be able to afford registration of all the designs you have ever created!

As for the changed designs, Q2, unless the text is sufficiently ‘creative,’ like an original poem, and not just a quip or caption, the short answer is yes, you would likely want to register the new work as appropriate. However, if the text you use are mere catchwords or phrases, mottoes, slogans, or short expressions, such verbiage is not eligible for copyright. 
(See https://www.copyright.gov/circs/circ34.pdf )

If the text is a new poem, but being used in conjunction with a previously registered image, it would be eligible for its own registration on the TX (text) application form, not as VA (Visual Art).

If you are just changing the color scheme to a previously registered design, I would say that you need not re-register the new color scheme.  Indeed, merely changing the color scheme is not likely eligible for a new registration as it lacks sufficient ‘new creative expression.’ 
(See https://www.copyright.gov/circs/circ34.pdf  ) 

It is interesting to note what the Copyright Office does offer as examples of derivative works of visual art that should be registered:
•  A sculpture based on a drawing;
•  A drawing based on a photograph, and
•  A lithograph    based    on a painting.

What all three of these have in common is that they truly transform the pre-existing artwork from one ‘medium’ to another.  Anything short of that level of transformation may not require a new registration.  What this means to me is that the new color version of your design has full copyright protection by the original registration, since it does not qualify for its own registration.

So, to the extent that this applies to a large number of your designs, maybe you can save some application fees after all!

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, www.bcgattorneys.com
© 2017 mjbogatin 

Have a legal question? email it to info@AnnGraphics.com. 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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Bo's bLAWg - Copyright Registration of Published and Unpublished Works

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

Dear Bo, I just sold a new original painting (I also license my art on products). Is selling the original painting considered “publishing” it? I haven’t had a chance to copyright the image yet. I am hoping I can include it in a group copyright with several unpublished, un-sold images. If I add the new painting/image to a site like Pixels.com for print sales, is that considered “published”.  Thanks in advance, Bo! Terri

Good questions, Terri.  “Publication” is an important term in the Copyright Act.  You appear to be aware of the fact that as an Artist you can save a good deal on Copyright Registration fees if you can register multiple images together as a group, and that it is easier to group unpublished imagery than published imagery for registration purposes.

Before I answer your question about whether your sale of the original painting constitutes Publication under the Act, I want to address one particular in your email: “I haven’t had a chance to copyright the image yet.”  You most likely mean that you have not had a chance to register your copyright in the image yet.  However, not everyone knows that they ‘have’ a copyright in their image as soon as they have created it.  As long as the image has sufficient creative original material in it, it is immediately subject to a claim of copyright by its Author/Artist.  So, to be sure, you have a copyright already.  Registration adds specific important statutory protections for the benefit of the Copyright registrant.  (See http://annietroe.blogspot.com/2015/01/bos-blawg.html )

“Publication” is defined in the Act as “the distribution of copies of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication.”  (See the alphabetical definitions section of the Copyright Act: https://www.copyright.gov/title17/92chap1.html#106a )

So, there is a quick answer to your first question.  Yes, sale of the painting is deemed a “publication” under the Act even though you have not “published” it in a conventional sense by making copies and distributing them.

The more intriguing question these days is whether artworks posted online are deemed to have been “published” under the Act.  Interestingly, when you post online yourself, even though theoretically you are displaying your imagery to the whole world, the mere “display” of a work does not of itself constitute publication!  “Mere display” has been deemed to include showing your artwork in a gallery or museum as well.  It is only when the gallery sells the artwork, or the museum purchases it for its collection, is that artwork will be deemed to have been “published.”

When it comes to registration, one of the Application questions is when the artwork was first published.  If you are selling your works individually, and not registering them prior to sale, then they likely will all have different publication dates.  That means separate registrations at $55 a pop.

However, it is possible to include multiple published works in a registration application if they were all originally published at the same time.  Circular 1 from the Copyright office says multiple published works can be registered as a group “if they are all first published together in the same publication on the same date and owned by the same claimant.” 
(See https://www.copyright.gov/circs/circ01.pdf page 8.)

Your recently sold artwork would not need to be registered individually if you actually published it prior to its sale as part of a group.  How might that have happened?  I’ll tell you.

You indicate that you list your artworks on pixels.com.  By posting the imagery at that website, if I am not mistaken, you are offering it with the purpose to distribute copies to people who will license it for merchandise and further distribution, right?  Well, that is specifically a kind of “display” that fits within the Copyright Act definition of “publication” (above).  So, if you were to post a bunch of previously unpublished images together on pixels.com for such purposes, then I think you would qualify for registering them all together since they share the same publication date.
 
Alternatively, you can register a group of unpublished artworks together for one fee as well.  These can be registered together as a “collection” if they satisfy all the following criteria:
1) The elements of the collection are assembled in an orderly form; 2) The combined elements bear a single title identifying the collection as a whole; 3) The copyright claimant or claimants for each element in the collection are the same, and 4) All the elements are by the same author or, if they are by different authors, at least one author has contributed copyrightable authorship to each element.  (Note: Works registered as an unpublished collection will be listed in the records of the Copyright Office only under the collection title.)

Hope this is helpful, Terri and that these tips save you a lot of registration application fees.  We give the Feds enough in taxes as it is! 

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, www.bcgattorneys.com
© 2017 mjbogatin

Have a legal question? email it to info@AnnGraphics.com. 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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Bo's bLAWg - Copyright and Title; Two Distinct Rights

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

Dear Bo, I sell my original paintings, but retain digital files for licensing use on merchandise.  Does the purchaser of my painting have any right to use the image? Thanks. Jerry

Thanks for your question, Jerry.  You have identified the basic distinction between “physical property” and “intellectual property” rights.  Real property and personal property are ‘physical things’ which can be owned, and transferred in commerce.  Real property, of course is a house and the land on which it is located.  Personal property, or “personalty,” includes paintings, prints, merchandise, CDs, DVDs and books.  Ownership to both real and personal property is indicated by the term “Title.”  Just as the purchase of your house by a third party is deemed to transfer your Title to it to the new owner, so too, does the purchaser of your painting take your Title as their own.

Intellectual property interests are more ephemeral.  They are also your “property,” but they pertain to the artistic works contained in personalty:  the imagery contained in the physical painting, prints or on merchandise via license; the underlying composition and recording of music contained in a CD; the movie contained in the DVD, and the story and characters contained in the book of fiction.  In non-fiction, the Author’s intellectual property interest is in her written text, apart from the facts contained in the text.  All of these intellectual property interests, and rights in derivative works that can be made out of them, are the essence of Copyright.

You will recall that I previously provided the list of the Copyright holder’s Exclusive Interests:
http://annietroe.blogspot.com/2016/07/bos-blawg-copyright-and-derivative-use.html
With respect to your painting, Jerry, these include the rights to:
1.  reproduce the work in copies;
2.  prepare derivative works based upon the work;
3.  distribute copies of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending, and
5.  display the copyrighted work publicly.

The notion to keep in mind is that these rights all attach to your copyright (your intellectual property in the underlying imagery), but not to the painting (personalty).  The people who purchase your painting get none of you intellectual property rights unless you expressly provide such rights to them.  An example of that, would be offering the purchaser the right to use the image in a family Holiday Card – presumably on the condition that your copyright notice is affixed!  You may also want to pre-approve the quality of the reproduction being made.  Clients of mine have provisions allowing for these additional rights and other conditions that they insert into their Art Sale template. 

I am reminded that one other provision I recommend be considered to include in the Sale Agreement is the right to borrow back the sold painting for a Museum or other show featuring the best of your artworks.  Most purchasers are so pleased with the notion that the artwork they are purchasing is one of your own favorites, they do not object to signing an agreement that allows you the right to borrow it back with reasonable notice, and on the further condition that the artwork is fully insured when out of their possession.  If you do not include such a right in your sale agreement, you would not be able to make the purchaser loan possession back to you.  The exclusive right of possession is the essence of Title to personality, just as Copyright is your exclusive right to the image in the painting.  Make sense? 

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, www.bcgattorneys.com
© 2017 mjbogatin

Bo's bLAWg - Copyright Term and Unpublished Works

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

Dear Bo, I was in my mother’s attic and discovered a box of my Great Aunt's personal writings and illustrations.  It appears they date from 1880 and earlier to her death in 1925.  I don’t think any were published, but I do not know!   I would like to publish them.  You indicated in a prior bLAWg that works published before 1923 are in the Public Domain.  What about unpublished works from that date and earlier?  Thanks!  Teri

Good question, Teri.  The Term of copyright for never-published works does require a different analysis from that we use for published works.

Start with the contemporary Term:  the life of the author/artist plus 70 years.  Working backwards, if the author/artist died more than 70 years ago – before 1947 – then their unpublished works are in the Public Domain.  So, if you knew that none were published, we could conclude with certainty that all her writings and drawings are in the Public Domain (“PD”).

Had any been published, and the copyright registered as required under the 1909 Act, you will recall from my earlier bLAWg, that a registration in its Renewal 28-year Term 1923 through 1963 was granted a Term of 95 years after its original publication date.  So, were you able to determine that certain works were published, the 1923 rule applies.  Those published in 1923 would have their last year of copyright protection in 2018.  Works first published in 1924 would be protected through 2019, and those published in 1925 would lose protection as of January 1, 2021.  (See http://annietroe.blogspot.com/2016/09/bos-blawg-copyright-term.html )

I would add that there is a different rule for unpublished anonymous and pseudonymous works, and works made for hire (corporate authorship).  In the case of these, the Term is 120 years from date of creation.  So, had you found these materials but their author was unknown to you, it is quite possible that those works could still be subject to copyright protection.  It is just a matter of knowing when they were created.  As of this year, creation before 1897 would make them PD.

Here is an online Chart that addresses this Term information for both published and unpublished works:  http://copyright.cornell.edu/resources/publicdomain.cfm
 
Now, I want to say a few other things about works in the PD.  First, while you have an absolute right to use these works any way you want, anyone else who has access to them would have the same right of use.  Were you not to grant any third party access – or limit access to those who sign a Non-Disclosure Agreement with you – you could be the first to publish, and thereby have that advantage on any third party who might want to publish or make other commercial  use of them.  Even better, were you to publish them in a manner that includes contribution of new elements and materials by you, you have an absolute right to claim a new copyright for your additions to the PD material.  By publishing a copyright notice with respect to your own contributions, would anyone else necessarily know which is your new material and which your Great Aunt’s?  Not necessarily…

More likely, however, even if you made known which was your Great Aunt’s original work, it would be impractical for any third party to ‘separate’ the PD material from your own additions and/or material enhancements.  For instance, with your Great Aunt’s pen and ink drawings, were you to add colors, they might make a line of beautiful new greeting cards.  While third parties would legally be able to strip out your color and look to add their own color choices, more likely than not, they would honor your copyright notice and published efforts.  There would be little economic incentive to go to that trouble since your line is already available for sale. 

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, www.bcgattorneys.com

Have a legal question? email it to info@AnnGraphics.com. 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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Bo's bLAWg - Copyright and Useful Items

 

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

What is this I heard about a copyright and cheerleading uniforms case before SCOTUS?  Does it have anything to do with design licensing?  (BTW I love your bLAWg, Bo!)  Jeff

Always happy to discuss copyrights in the news, Jeff!  Let me summarize the case to which you are referring.  It is called Star Athletica, L.L.C. v. Varsity Brands, Inc.  Varsity Brands is one of the largest purveyors of cheerleading uniforms in the country.  Star Athletica is a smaller competitor.  Varsity registered its copyrights on certain “chevron designs” used in a new series of uniforms.  Star’s catalogue the following year included a number of similar chevron designs in its new uniforms.  Varsity sued.

What is a chevron?  I didn’t know!  Here is a link to some other legal bloggers who dug up the Varsity copyrighted designs and the Star catalogue uniforms:  https://www.knobbe.com/news/2016/11/chevrons-stripes-cheerleaders-and-copyright-supreme-court-hears-oral-argument-star  Now I know what a chevron is! 

The matter sounds straightforward enough, doesn’t it, Jeff?  What’s the issue that brought such a case all the way to the SCOTUS?  It is simply this:  Is the Varsity chevron an article that is part of a useful item like a cheerleading uniform, or is it something else; something uniquely creative simply added to the useful article? Copyright does not apply to “useful items”.  It has always applied to the sculpture that is turned into a lamp, and the illustrations that are added to mugs, but what about clothing?  Historically, clothing and its elements, from zippers to hidden pockets, have always been considered useful items.  Some of these items may be entitled to patent protection, but not copyright.

Copyright is limited to “original works of authorship” that are not in themselves “functional”.  (See 17 USC Section 101:  https://www.copyright.gov/title17/92chap1.html#106a )   Section 101 defines a useful article as:

an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a “useful article”.

Reasonable minds can differ.  The Federal District Court in Varsity’s copyright infringement case found that the chevrons had a utilitarian function with respect to the uniforms.  Varsity appealed.  The Federal Circuit Appellate Court reversed, finding that the chevron was a design that “incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article” per 17 U.S.C. § 101.  Star appealed to SCOTUS.  Undoubtedly, as indicated by the reversal of the original Judgment, Stars’ attorneys considered this to be “a close question.”  And no doubt there were a lot of damages at stake.  Remember, having lost on appeal, Star could be liable not only for large damages, but for all Varsity’s attorneys’ fees and costs incurred for bringing their action, as well as Stars’ own.

When it came right down to it, SCOTUS did not consider this to be such a close question.  It applied the usual legal “test”:  Do the artistic features of the useful articles includes a separate identification or “separability” requirement and an independent existence requirement.  More particularly, “(1) can the chevron designs be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would they qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article?”

Justice Thomas, writing for a five-member majority of the Court, affirmed the Judgment of the Sixth Circuit Court of Appeals.  This majority identified the two key requirements – that the chevron features were separately identifiable from the cheerleading uniform, and are capable of existing independent of the utilitarian aspects of the uniform.  It also reasoned that removing the surface decorations from the uniforms in the abstract and applying them in another medium would not replicate the uniform itself.

So, Jeff, you want to make a million bucks?  Attach some of your original artwork in ambiguous fashion to a top-selling article of clothing.  Register your copyright, and let me know when you someone infringes on your design.  We’ll rack up.

Disclaimer:  The information contained in this website is not intended and should not be relied upon as legal advice. Because the law is not static, and one situation will differ from the next, the results will differ as well, thus we do not assume responsibility for any actions taken based on any information contained herein. Also, be aware that the laws vary from state to state. Therefore, this website cannot replace the advice of an experienced attorney who practices within the jurisdiction involved in your issue or dispute. Receipt of this information does not create an attorney-client relationship. MJ Bogatin, Bogatin, Corman & Gold www.bcgattorneys.com
© 2017 mjbogatin

Have a legal question? email it to info@AnnGraphics.com. 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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Bo's bLAWg - Continuation Fees to Licensing Agents

 

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

My Agreement with my licensing agent is expiring.  It is my understanding that she gets to receive her commission on licenses that she negotiated.  Can you tell me how long this goes on?  How it works?  After we terminate, aren’t I entitled to receive my royalties directly from the licensees and account to her?   Trudy

All Licensing Agents will include a “Continuation Fees” provision in their Agreement with you as the Licensor Illustrator.  The essence of this provision is to give the agent the right to receive their commission on your royalties -- for as long as you receive such royalties -- on a license they placed and/or negotiated on your behalf.  The Term of the Agency Agreement may expire (if it is not renewed), but the agent expects to “continue” to share in the benefits of her services for as long as you do.  Hence the name “Continuation Fees provision.”

The provision typically appears in association with the termination provision, but not always.  It reads something like this:

“It is further agreed, regardless of termination and/or cause, Agent will continue to receive its full 50% share of all Gross Revenue associated with all License Agreements procured by Agent during the Term (and any renewals, extensions and/or modifications thereof).”

I have left in the highlighted, “and/or cause” part of this provision, because this is the kind of term that might be slipped into the otherwise expected provision.  You might miss it if you were not aware of the implication.  What the “and/or cause” means is that even if the Agency Agreement were to be terminated for breach on the part of the agent, like non-payment of royalties due their illustrator client, they would be able to rely on the contract to continue to collect commissions on agreements they made for you!   I say, “No way!”  Commission continuation right should depend on the full, good faith performance on the part of the Agent.  If they screw up and breach their Agreement, all their commission interests should be put at risk.  

In an analogous situation, the California Labor Commission takes the position that if someone is operating as a musician Booking Agent without a license from the Commission, the musicians they represent can make a claim that all commissions earned be surrendered to them.  This includes both past and future “Continuation Fees” that Booking Agents as well include in their Agency Agreements.  Why should illustrators be treated any differently.”  While literary and illustration agents are not licensed, their clients should not have lesser rights than musicians.

As for the issue of continued accounting rights, as long as the Agreement has not been breached, and the Licensor Illustrator had all agency rights revert, it is reasonably expected that post-term, the agent will continue to collect royalties due under the licenses they negotiated.  They will continue to take their commission due, and then account to their former client on the balance due for as long as the underlying Licensing Agreement continues.  Some of the more comprehensive Agent Agreements expressly include this expectation:

“Upon expiration or termination of this Agreement, Agent shall continue to collect payments under any and all License Agreements negotiated during the Term (and any renewals, extensions and/or modifications of the same) unless otherwise agreed by the parties.” 

And, just in case there is any question of whether the Illustrator should contact the Licensee and request direct payment since they are no longer represented by the Agent, some Agreements also make clear they cannot as follows:

“Artist further agrees that Artist, after expiration or termination of this Agreement, may not make any changes in the payment instructions contained in any License Agreement or other arrangement covered by this Agreement to direct any licensees to make payments directly to Artist.”

I would like to offer one alternative to the standard agent Continuation Fees provision.  It is commonly called a “Step-down rate.”  In short, if the commission due is 50% when the Agreement is entered into, two years after termination it might step-down to 25%; two years later, 15%, two years later, it might thereafter remain at 5% or expire altogether.

This compromise term is especially appropriate in those instances when an agent may be taking on an illustrator who already has a significant body of business, but the pre-existing licenses are not necessarily excluded from the Agency Agreement.  Perhaps the illustrator is looking to have the agent review license terms when they come up for renewal and/or renegotiate them when possible.  I have also negotiated inclusion of a step-down rate where the illustrator’s reputation is already ‘made’ as it were, and prospective licensees are calling her for rights.  The agent need not shop her works so much as make the best deals possible.  Then again, you might ask for it with any prospective agent.  If they want to represent you badly enough in the short term, you might save yourself some significant commission fees over time by insisting on a Step-down commission rate post–term!

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, www.bcgattorneys.com

Have a legal question? email it to info@AnnGraphics.com. 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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Bo's bLAWg - Online Licensing Websites (VIDA / ShopVIDA)

 

 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. www.calawyersforthearts.org. Bo is available to answer some of your questions surrounding the business of Art Licensing. - THANKS BO!

I've known several artists approached by VIDA.  I'm attaching their Artist Contract and am wondering what you think of its terms?  Montana

Thanks for your question, Montana.  I have had occasion to consider a few different online licensing websites.  Some, like VIDA, promote themselves as a “Manufacturer on Demand.”  I doubt that they themselves are manufacturers.  They are more likely, the “intermediary.”

I can see how an online website licensing would be an attractive business model to entrepreneurs who have relationships with manufacturers (or their US tradeshow representatives).  If the website can sign up lots of artists, it is possible that they can make a lot of money from the sales of products with artists’ designs, whether to the public – or even more likely, to the very artists whose artwork has been licensed.  Many artists just want to see their work featured on products, from placemats to scarves.  If the online licensee can entice the artists themselves to purchase enough of a given product – and the manufactured product prospects are unlimited -- current digital imaging allows the manufacturer to easily change out designs.  Small quantity orders of a few hundred units can be profitable with overseas, non-union manufacturing, with a generous mark-up on the re-sale of such inventory to artists -- and possibly to retailers.

As for the licensor artists, I suspect that this not an unduly expensive way to obtain a decent inventory of select products bearing their designs.  However, I doubt that there are many commercial success stories generated from sales from these websites.  If I am in error on this, I would like to be informed of it!

When I dig into VIDA’s, not only do I find some very objectionable terms, I also find an emphasis on asking the artist to invest in the purchase of models promoting their pending product line, and discounts available for purchasing $300+ of the merchandise.  If every artist who signs up agrees to the marketing photos and a minimum purchase of select products with their very own designs, clearly, the business model has income potential to the purveyors if not the artists!

Upon signing up with VIDA and uploading two illustrations, it is my understanding that artists are asked to become “a featured designer on VIDA with a Curated Collection.”  In conjunction with this invitation there is an ask for money summarized as follows:

To claim your curated collection, you can use one of two private codes listed.  With “Code Curated 25,” the artist is invited to receive one professional lifestyle photo of a model wearing an item from your collection.  Check out with $300+ worth of merchandise in your cart and enter the promo code, “Curated25” at checkout, and 25% will then be taken off your order.  You will also get a curated collection page with one professional lifestyle photo of a model wearing an item from your collection, and at least one of your products product featured on the VIDA Shop All page with professional lifestyle photography.

If you select Code Curated40, you receive three professional lifestyle photos of a model wearing items from your collection.  Check out with $900+ worth of merchandise in your cart and enter the promo code, “Curated40” at checkout, and 40% will then be taken off your order, and you will get a curated collection page with three lifestyle photos of a model wearing items from your collection, and at least one of your products featured on the VIDA Shop All page with professional lifestyle photography.

Again, this is an extremely limited offering since we can only offer curated collection upgrades to a small group of artists. Since we have limited space for curated collections, we are limiting the availability to upgrade your collection until just October 30th, only 4 more days.”

This promotional material is said to be “extremely limited,” but as far as I know, it has been posted indefinitely.

Of critical importance, as always for me, are the terms that are imposed by the website licensee on the artist who clicks “Agree.”  As for the VIDA Agreement, http://studio.shopvida.com/terms-and-conditions , I have a number of concerns about its terms, many of which are wholly objectionable.

With reference to my prior Basic Licensing Terms bLAWg, http://annietroe.blogspot.com/2015/02/bos-blawg-what-should-be-in-art.html , note first that the grant of rights to any images uploaded is immediately “exclusive and perpetual.”  This means that whether or not anything is made of the artist’s imagery, (and there is no guarantee that there will be!), the artist has no further right of use to it for licensing purposes!

Furthermore, the artist gives up any right to object to the way in which her imagery may be used on any given product – by itself or in combination with other imagery -- or the quality of the product itself!

While VIDA requires the artist to provide their photograph and biographical material, there is no obligation on VIDA’s part that it will post or use this information in conjunction with its promotional efforts on behalf of such artist. To the contrary, in an accompanying “Plain English Terms” explanation of the Agreement, VIDA makes clear that artist imagery may be used without a copyright notice or artists brand or logo.  This not only deprives the artist of a key reason for licensing her imagery, but suggests to the public that there is no copyright claimed on the imagery used on the products, and the prospect of unlimited “innocent infringement” with minimal damage claims despite artist’s registered copyright.

A Ten Percent is offered on VIDA’s “Net Sales.”  Revealingly, this 10% is offered as a “sales commission” to the artist rather than a royalty.  By calling it a “sales commission,” clearly VIDA expects the artist to be the seller – not VIDA or retailers to which it is ostensibly marketing the products.

The Net Sales definition includes “discounts” and “bad debts,” neither or which would the artist have any control over.  Too bad if it was Uncle Lenny who failed to pay for those 500 units that he bought wholesale for resale to retailers of his acquaintance(!)   And to make matters even worse, the VIDA Agreement expressly rejects any obligation to verify its listed sales information or an audit, both of which are standard provisions in legitimate licensing deals.

If these particular provisions are not bad enough, VIDA then states that it “reserves the right to change these terms at any time.”  Somehow, I doubt such changes will be for VIDA artists’ benefit!

It is my understanding that there are a number of such online businesses including Society6, RedBubble, Art of Where, Minted and Bucketfeet.  If you have questions about their contract terms, I’d be pleased to comment on those as well.

Disclaimer:  The information contained in this website is not intended and should not be relied upon as legal advice. Because the law is not static, and one situation will differ from the next, the results will differ as well, thus we do not assume responsibility for any actions taken based on any information contained herein. Also, be aware that the laws vary from state to state. Therefore, this website cannot replace the advice of an experienced attorney who practices within the jurisdiction involved in your issue or dispute. Receipt of this information does not create an attorney-client relationship. MJ Bogatin, Bogatin, Corman & Gold www.bcgattorneys.com
© 2017 mjbogatin

Have a legal question? email it to info@AnnGraphics.com. 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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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. www.calawyersforthearts.org. 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: https://www.copyright.gov/title17/92chap5.html#512 )

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: https://support.google.com/youtube/answer/6005900?hl=en

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: https://www.copyright.gov/dmca-directory/

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, www.bcgattorneys.com
© 2016 MJ Bogatin

Have a legal question? email it to info@AnnGraphics.com. 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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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. www.calawyersforthearts.org.  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. http://annietroe.blogspot.com/2015/02/bos-blawg-what-should-be-in-art.html

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, www.bcgattorneys.com© 2016 mjbogatin

______________

Have a legal question? email it to info@AnnGraphics.com. 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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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. www.calawyersforthearts.org www.calawyersforthearts.org 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:

Background:
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.  https://assets.documentcloud.org/documents/2993945/CASE-Act-Jeffries.pdf

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.  http://annietroe.blogspot.com/2015/01/bos-blawg.html 

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).  https://graphicartistsguild.org/news/copyright-claims-board

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, www.bcgattorneys.com

 

Have a legal question? email it to info@AnnGraphics.com. 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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