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 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.

 

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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.

 

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 - 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

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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 - The Copyright Term Follow Up

 

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 Bo, in last month’s bLAWg you indicated that works published before 1923 are in the Public Domain.  Does that mean that as of January, works published before 1924 will be in the Public Domain? Rick

That would seem to be logical, Rick, but that is not presently the case. 1923 will remain the cut-off date for automatic Public Domain for two more years under the Copyright Act.

Under the 1909 Copyright Act, the copyright term was 28 years with the right to be renewed for a second 28 year term.  Under the 1976 Copyright Act, the one that set the ‘new’ ‘life of the Author plus 50 year term,’ came into effect January 1, 1978.  As of Jan. 1978, the ‘oldest’ copyrights that could still be in their second renewal term under the 1909 Act must have been registered in the first instance in 1923 or later.  For example:  A work that was first copyrighted on January 1, 1923, and renewed between January 1, 1950, and January 1, 1951, would formerly have fallen into the public domain as of January 2, 1979.

Last month I mentioned Sonny Bono Copyright Term Extension Act (CTEA) of 1998.  Besides extending the existing copyright term from 50 years after the Author’s death to 70 years, a provision of the CTEA extended the duration of copyrights in their renewal term at the time of the effective date of this Act to 95 years from the date such copyrights were originally secured.
https://www.congress.gov/bill/105th-congress/senate-bill/505

Since the ‘oldest’ renewal registrations under the 1976 Act were from 1923, the CTEA extended those copyright terms to a maximum of 95 years, through 2018.

Accordingly, no new works will fall into the public domain until 2019, when works published in 1923 will finally be deemed to have expired. THEN Rick, you will get the ‘rolling’ year-by-year expansion of Public Domain.  In 2020, works published in 1924 will expire; in 2021 all works published before 1925 will have to have expired, and so on.  That is, unless the Copyright Act is amended again to alter these expectations!

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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Art Licensing Newsletter - Happy New Year!

Happy New Year Everyone! 

I am giving you a look at what my Art Licensing Newsletter looks like ;-) Click this link to see past issues too! http://eepurl.com/bLzjiX  I have been known on occasion to give away stuff - newsletter subscribers are the first to know!

If you want to guest post or be featured on my blog, send an email to info@anngraphics and let's chat :-)

Wishing each and every one of you the VERY BEST 2016!

Bo's bLAWg: Foreign Copyright Registration in US

An artist in Europe (UK) was wondering if they needed to register a copyright with the US too.

Fantastic!  Bo’s bLAWg goes international!

The short answer to this question is “No.”  The better answer is “they should.”

It is understandable that there is confusion over whether or not foreign works should be registered in the US.  Until the US joined the international Copyright treaty, the “Berne Convention,” which it failed to do for 100 years until 1989, the foreign copyright holder could not know whether the US courts would provide her a legal remedy under US law as the courts of any other Berne Convention signatory would.  Under the Convention, the foreign copyright holder had the right to bring an action to enforce their copyright interest under that country’s copyright laws.  They could do so whether or not they had included a copyright notice on their works, and whether or not their own country required registration – which few did. The US Copyright Act required both copyright notice and registration before an action could be brought.

Once the US signed the treaty, it still did not deem its mutual recognition of copyright laws to be “self-executing,” but took the position that the US would pass its own laws to conform with Convention procedures and remedies.

Since the Berne Convention requires its signatory countries to mutually recognize the copyright interests of each others citizens without an obligation to register those copyright interests in each foreign country, the US had to amend the Copyright Act to allow for protection of foreign works without requiring registration of those works.  To that end, the US amended USC 17 § 411 of the Copyright Act to limit its registration requirement for infringement action purposes to US works only.  Section 411 now expressly provides that, “…no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.  (See http://www.copyright.gov/title17/92chap4.html#411 )

Hence the short answer, “No, the European artist need not register her copyright in the US to protect her copyright interests here.  BUT…

The US Copyright Act deprives not only foreign copyright holders, but US holders too, of key remedies in the course of bringing a copyright infringement action unless they have registered their copyrights within three month of publication of their works.  (Again, see http://www.copyright.gov/title17/92chap4.html#411 )

Section 412 of the Act provides as follows:

In any action under this title… [exceptions]  no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for —

(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or

(2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.

As discussed more particularly in my January 16 bLAWg earlier this year, registration of copyrights with the US Copyright Office – including those belonging to foreigners -- adds valuable statutory protections that the copyright holder would not otherwise have.  Unless registration has been timely made and these statutory rights secured, if an unregistered artwork is infringed upon, the copyright holder may not be able to afford to bring a lawsuit.  These statutory registration benefits include: 1) the right to elect statutory damages of up to $150,000 for a willful infringement of your copyright instead of being limited to “actual damages” which may consist only of the infringer’s profits – if any; and 2) the right to ask the court to have the infringer pay your legal fees and costs, which you would otherwise have to bear yourself.  (See Copyright Act Sections 504 and 505 http://copyright.gov/title17/92chap5.html )

So, does a UK copyright holder “need” to register her copyrights in the US?  No. But if they are going to be published here in the US, or there is any likelihood that they will be infringed upon here, as a practical necessity, she should register her copyrights.

If you have further questions about this that you want to direct to me personally, I can be contacted through my website linked below.

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.



You can use the search box at the top of the page to read more Bo's bLAWgs.
Send me your questions for Bo! Thanks, info@AnnGraphics.com

Bo's bLAWg: Creative Commons - Free Public Licenses - pmp-art.com

Here's my question. I get most of my reference photos for my pastel drawings from a website called www. http://pmp-art.com/ .  Photographers put their photos on this site for artists to use as references to paint.  The site says that this can be done without copyright infringement.

 My questions are: 1. Can I license the art work I produce from this site? 
2. Can I or should I copyright my interpretation of art from these reference photos? 
Thanks a bunch,  Debbie B

Dear Debbie,

You pose a very interesting pair of questions, the answers to which relate directly to a copyright topic I had wanted to mention:  Free Public Licenses. 

My answers to your questions are “not commercially” and “yes, but” respectively.  You have to take into consideration the application of the Free Public Licenses purportedly offered through the PMP-art.com website.

Before we go there, however, here is some background on Free Public Licenses:

There are alternatives to the conventional copyright system.  A number of them are grouped under the term Copyleft (vs. Copyright; get it?)  These are rights systems that turns copyright upside down – or ‘right side left’ as the case may be.  Instead of prohibiting use without a license from the copyright holder, copyleft automatically allows permissive use, but on certain underlying terms.  These terms are set by the copyleft organization to which the copyright holder subscribes.  In the case of http://pmp-art.com/ , the terms are purported to be set by the copyleft group, Creative Commons.

The http://pmp-art.com/ website has led you to believe that you cannot infringe on the photographers’ copyrights by their informational posting as follows:

“Paint My Photo (PMP) is a social networking site dedicated to sharing Photos for artistic inspiration without fear of infringing copyright.”

However, you can’t stop reading there.  Read on:

“Note the following that applies to PMP. Please consider all photographic material uploaded by members to be under a creative commons attribution non-commercial license...  This basically means you cannot download and sell members photos or use them commercially in any way.”

There are four alternative Creative Commons “CC” licenses.  They are:

The “BY” Attribution License with the
icon that allows user Licensees to copy, distribute, display and perform the work and make derivative works based on it only if they give the author or licensor the credits in the manner specified by these;

The “SA” Share-Alike License with the
icon whereby Licensees may distribute derivative works only under a license identical to the license that governs the original work;

The “NC” Non-Commercial License with the
icon that allows Licensees to copy, distribute, display, and perform the work and make derivative works based on it, but only for noncommercial purposes, and

The “ND” No Derivative Works License with the
icon that allows Licensees to copy, distribute, display and perform only verbatim copies of the work, not derivative works based on it.
The specific terms of the NC Non-Commercial license are spelled out on the CC website at the following link:  http://creativecommons.org/licenses/by-nc/3.0/legalcode

You will note that paragraph 4b of the NC license states:  “You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.”

The PMP website goes on to say:  “You can of course make paintings based on photos and sell them.”

I beg to differ.  If the NC License is applicable as stated, you are limited to non-commercial use only.  Selling a painting is a commercial activity!   Giving away the paintings you make is not commercial.  Trading it for something of value would also be commercial.  Similarly, you cannot license your derivative works for money, but could offer your derivative copies subject to the same terms as afforded you by the NC License.

Additionally, as provided in paragraph 4c of the linked NC License, you must provide notice of the Author of the underlying work (the photograph upon which you painting is based) and their name, unless they have expressly released you from those obligations.  If you fail to abide by these NC copyright notice and credit terms, you are subject to a claim for copyright infringement and/or breach of contract(!)

As stated above, you can copyright your adaptation, but must register it as a derivative work.  Authors under CC licenses are not giving up their copyrights, they are only allowing your use on specific terms.  Similarly, you must allow use on the same terms, but if Your work is infringed by someone who does not abode by such terms, you would have a right to claim an infringement of your copyright. Hence, it may well be worth registering your copyright, just as the photographer may have registered hers.  Make sense?

If you have further questions about this that you want to direct to me personally, I can be contacted through my website linked below.

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

You can use the search box at the top of the page to read more Bo's bLAWgs.
Send me your questions for Bo! Thanks, info@AnnGraphics.com

Find, Evaluate and Act - by Kiffanie Stahle

3 simple steps to control where your images appear online.

First, tell us a bit about you.
Hello! I’m Kiffanie Stahle, the founder of Stahle Law, a law firm serving creative entrepreneurs. I’ve been taking photographs from the ripe old age of seven and this gives me the unique ability to merge art and legalese. I love that my job is to support creatives on their journey to becoming successful and thriving creative businesses. I help them grow, protect their creations, and eliminate the surprises that could cost them thousands of dollars. My goal is to allow you to focus on what you do best – creating!

Tell us about your new eBook and why you wrote it.
We live in a right-click society and your images are constantly being used without your permission. Sometimes this is just the bump you need to get your work in front of the right audience, but sometimes it’s not (and you should be getting paid a licensing fee).
My new eBook is designed to put the control back in your hands. So you control where your work is being used – not other people. The eBook will give you:
    •    The tools to find where your work is appearing online
    •    The knowledge to evaluate what you can, can’t, and maybe shouldn’t do about it
    •    An action plan for how to act, when you choose to do so.

A lot has been written about how to conduct a reverse image search and those tools are important to the process. But I really think that the core of this book is the method that I teach you to evaluate what to do about the things you find. And since I love to boil things down in a visual manner, this method is centered on a chart I created with a kraft pad and Sharpie markers.

How can people get it?
You can purchase it through my website for $39. However, as a special thank you to your readers, I’m offering them 20% off through the end of February with the code: DOODLEBUGZ. https://www.stahlelaw.com/protect-work-ebook/

Anything else you want to share?
Yes! My favorite event each month is my Office Hours, which I host via Google Hangouts the 4th Wednesday of each month at 11am Pacific. Since it’s limited to nine participants a month, it’s a great chance for you to ask me questions and to learn from the struggles and challenges that other creative businesses are facing. I’m always amazed by the ideas, suggestions, and knowledge shared each month by the participants. If you are interested in joining you can email me at: kiffanie@stahlelaw.com or check out my Google+ page where I post the invite each month. https://plus.google.com/+KiffanieStahle/

Are you an early riser? or night owl?
Total night owl. I try not to schedule appointments before 10am. I need my morning infusion of coffee before talking to people.

What is your favorite food?
If I have to pick one, then pickled items of all kinds: pineapple, grapes, carrots, garlic, peppers, and of course the original pickled item, the cucumber. But dark chocolate is a close second.

Where can people find you?
I’m @kiffaniestahle pretty much everywhere, but as a visual person, Instagram is where I’m most. You can also reach me through my website at: http://www.stahlelaw.com.
Link to Google+: https://plus.google.com/+KiffanieStahle/
Link to Instagram: http://instagram.com/kiffaniestahle


Thanks Kiffanie for doing this spotlight! - I have learned so much from you :-)
Hey doodlebugerz, make my day and follow my blog!