I’m fascinated by legal cases about art.
Thefts. Forgeries. Copyright infringement. Gallery dealers and so-called experts who end up in front of a judge for defrauding collectors.
While most artists will never see the inside of a courtroom, you might be concerned with copyright infringement or receive unsettling news that someone is using your creative work without your permission.
Every artist (you) should know the basics for protecting their art.
My guest for this episode of The Art Biz is Kathryn Goldman, an intellectual property and internet law attorney who helps creative professionals protect their work so they can profit from it.
Our conversation is really a mini free workshop based on Kathryn’s Four Step Framework to help you identify, protect, monitor, and enforce your creative rights.
We covered each of the 4 steps.
- Identify what you create. What are your business assets and what can be protected? A crash course in copyright.
- Decide what to protect and how to protect it legally. This is where we go deeper into copyright, trademark, and contracts.
- Monitor the internet to see if your work has been infringed upon.
- Enforce any infringements. Kathryn provides a series of increasingly serious steps you can take with the infringer, which start with a polite email and could eventually be elevated to the copyright claims board.
Do pay attention to late in the episode when Kathryn mentions the new FARE Contract, an opportunity for you to protect the future financial interests of your work.
Highlights
- Kathryn is an intellectual property attorney who helps creative professionals protect their copyrights, trademarks, and brilliant business ideas. (2:45)
- The four step framework that helps artists know what, when, and how to take action. (4:45)
- Copyright 101: identify the rights that a copyright protects and what is not covered. (7:13)
- Protect your artwork with a copyright registration. (12:25)
- Filing in small claims court for infringement can result in $15,000 payout. (15:33)
- Trademarks are source identifiers that protect against consumer confusion. (18:31)
- Keith Haring, Banksy, and other famous artist trademarks. (21:00)
- Does an artist need to register a copyright for every single thing they make? (30:35)
- Protection is the combination of copyright, trademark, and contract. (33:05)
- FARE contracts keep the right to control a piece in the hands of the artist. (35:09)
- Artists with a secondary market stand to benefit greatly from a FARE contract. (39:10)
- Monitoring your work to determine if it’s been stolen is up to you (and your community). (41:30)
- How I handled copyright infringement of my writing, and Kathryn's advice for what to do with new infringements. (46:24)
- The ladder of enforcement offers options for reaction when someone is stealing your work. (49:55)
- The recipe for registering your most valuable work is essential. (57:07)
- Kathryn’s upcoming programs and workshops. (59:05)
Mentioned
- Copyright Claims Board
- Google Alerts
- FARE Contract
- Kathryn's downloadable glossary of contract terms
Kathryn Goldman Quotes
- “I like it when artists understand when they need to take action, what action they need to take, and how to do it effectively and efficiently.”
- “The right to control those kinds of changes to the art comes from the copyright.”
- “A lot of working artists have trademarks, especially those who are building a business on licensing their art.”
- “Copyright is not as strong as trademark, and trademark is not as strong as a good contract.”
- “With this combination of tools, I think we really are going to start seeing some interesting things happen with contracts in the art world.”
- “The best infringement protection is going to be your [fans and followers].”
About My Guest
Kathryn Goldman is an intellectual property and internet law attorney who helps creative professionals protect their work so they can profit from it. She believes sustainable businesses are built on properly protected creative assets. Kathryn runs the Creative Law Center website and membership program. The Creative Law Center provides innovative creatives with the affordable business and legal resources they need when evolving from artist to entrepreneur. The Creative Law Center offers understandable information, actionable strategies, and easy to use tools for the development of creative businesses. Kathryn practices law in Baltimore, Maryland.
5 thoughts on “The Art Biz ep. 125: How to Legally Protect Your Creative Work with Kathryn Goldman”
At the 30:40 mark: My understanding & procedures to register “groups of works” is different from the attorney’s.
To be clear, creatives can register from 2 to 10 UN-published works from the same category, like visual arts (for example, three un-published paintings, two un-published drawings, five un-published sculptures) using the “Group Registration of Un-published Works” (GRUW) on-line copyright registration application” for a single filing fee of $85 total (it’s not $85 per work). See the GRUW info & tutorial at https://www.copyright.gov/gruw/ and https://youtu.be/eR14iSM4esQ
The attorney described the group application (GRUW) as a “coming out as a collection …is called a ‘Day of publication’ (copyright lingo) – all published on the same day.” I’ve never heard of that! Again, the GRUW application is for UN-published works ONLY. Once you’ve officially registered via the GRUW application, you can officially publish those works individually or together at any time. Also, the US Copyright Office does not identify the GRUW application as a “collection” of works, but rather as a GROUP of un-published individual works that have their own copyright registration claim.
It’s important NOT to mixed published and UN-published works in the GRUW application. If your works are published, use the “Single Application” or “Standard Application” (see below).
Do not register your ten un-published works using the GRUW application on say, a Monday, and on that very Monday “publish” them. If you can, wait at least two full days before making your work available to the public (published status).
To register ONE work ONLY, use the following on-line applications:
“Single Application”: The fee to register ONE un-/published work (like one book or one illustration or one photograph or one painting or one cartoon or one poem, etc.) with ONE author who’s the SAME copyright claimant, that’s NOT a-work-for-hire project, and that does NOT include any third-party creative media, is $45 — you MUST have created the ENTIRE work yourself! See https://www.copyright.gov/circs/circ11.pdf and https://youtu.be/MkBiPQNDVBc
Otherwise, to register a single un-/published work with multiple authors, and/or as a derivative/collective work, and/or that includes Creative Commons, Public Domain, and/or licensed media, etc., the fee is $65. Use the “Standard Application” (on-line eCO application): https://youtu.be/6gNkssUfYas
If you’re unsure about which application to use to register your ONE work, select the Standard Application.
“Publication” Definition: Publication typically means the work has been released and made available to the public for licensing, selling, sharing, downloading, or for further distribution (either for free or for payment). The day you deliver your creative work to your client or to stock or to a selling platform (Etsy) is likely the official date of its first-publication. If you’re just “displaying” a work on-line (like on a website or printed portfolio) and NOT selling or sharing it, then the work is likely un-published. See Circular 1 (Copyright Basics, page 7) for the legal definition of “Publication”: https://www.copyright.gov/circs/circ01.pdf
52:25 (56:15): To be clear, artists (claimants) can use the “Copyright Claims Board” (aka the small-claims copyright court/tribunal) for BOTH physical & digital copyright infringements.
As well, the CCB can also address non-infringing uses (fair use) and misrepresentations of Digital Millennium Copyright Act (DMCA) “Take-Down Notices” or “Counter-Notices” claims. See https://blogs.loc.gov/copyright/2022/07/the-copyright-claims-board-is-here-find-out-if-its-right-for-you/?loclr=eacop and https://ccb.gov/about/
In summary: The CCB permits creatives to pursue US-based copyright infringers (respondents) without having to hire an attorney or make a trip to Washington, DC (all communications and delivery of documents are done electronically). The process to get your day in this small-claims-type court is stream-lined and affordable ($40/$60) per case + the cost (~ $100???) to process-serve CCB documents to the infringer.
Attorney fees are not available if you prevail against the infringers. As well, the infringer can statutorily OPT-OUT of any CCB proceedings for any reason!
So, you’ll still likely need a “timely” registered copyright claim (the infringed work was registered either before the infringement began or registered within three-months of its first-date of publication) to have the necessary leverage to encourage (push) the infringer to accept CCB jurisdiction. If the infringer opts-out, you can pursue the matter in federal court where the infringer could be liable for MUCH higher statutory damages AND your attorney fees & legal cost.
To mitigate their financial exposure & legal liability (including receiving “bad press” and/or social media shaming), most all US-based, non-judgement-proof copyright infringers who are facing a timely registered copyright claim and whose use does not fall within the scope of Fair Use will want to confidentially settle out of CCB/court and put their infringing actions behind them.
It can pay lots of legal and financial dividends to get your creative works timely registered!
Fantastic podcast!! Thank you both for an incredibly informative and helpful hour full of invaluable tidbits for artists! I have played this a few times and still learn more. Plus I live in Maryland and am thrilled to learn about Kathryn Goldman and her business. You both are so well spoken and explain everything so clearly, a brilliant well organized podcast. I love listening to your podcasts Alyson, thank you!!
Gayle: I’m so glad you found this helpful. Yes, Kathryn is very close to you! Thank you for listening.
Great podcast, Kathrin Goldman, makes it clear and (almost) easy to start the process of protecting ones work!
Thank you so much Alyson!