Sunday Mailbag

October 12th, 2008 | Posted in Mailbag

Q: Thanks again for another great article,¬¨‚Ć Friday Sept 19, it is really helpful to know those things are going on out there. I wonder what happens if such magazine would have used the Al Jaffe caricature anyways, what do you do then, if there’s anything at all?

A:The article he’s referring to, in case you didn’t click the link above, is where a magazine called me asking to use a caricature I had done on the blog of Al Jaffee, and then not doing so when I had the audacity to ask to be paid for the use.

They may well have used the image anyway and just not paid me, but I doubt they did. The fact that they took the time to call me and ask if they could use it tells me they respect copyrights even if they don’t want to pay for the rights to acquire them.

Theft of copyright goes on every day and no doubt by the thousands of incidents. It’s always been the onus of the copyright holder to find out about the illegal use of an image of theirs, and then do something about it. Finding out it happened is like finding a needle in a haystack. You would drive yourself insane combing the internet for infringements of you work. These days I often get emails from folks seeing my work in some weird place and asking me if it was something I approved. Once I found my work on a series of postage stamps from the Congo and from a small Russian country being sold on eBay.

Under current law any use of an image without the permission of the copyright holder is illegal. This is one of the many reasons that the Orphan Works Act will be a disaster if it ever gets passed into law. Orphan Works supporters like to point out that the proposed law does not change the copyrights of a creator. You still own the copyrights of anythign you create as you always have, and it’s still up to you to find anyone who infringes your work. Therefore the Orphan Works bill does not hurt those who’s art is not legitimately “orphaned”.

That is total crap of course.

Without the Orphan Works law, anyone using any image they just find laying about but does not pay the copyright holder for the use KNOWS FOR SURE they are doing something illegal. They may do it anyway, but they don’t do it under any kind of protection from the law. Under the Orphan Works law, as long as they can show they couldn’t find me under a “reasonably diligent search” they can go ahead and use the image. The worst that can happn is they have to pay me IF I find them, and then the courts decide WHAT they pay me. Rather than call me and ask about that Jaffee image, these folks could have just claimed they got that image off some website, they contacted the website person and they couldn’t tell them where they got it, and then used it without my permission at all.

Under today’s laws, there are limits as to what you can do about finding your work infringed upon.

Contrary to popular belief, you cannot automatically sue someone for damages if they infringe on your copyright. You can sue for regular payment and then haggle with the courts over what that payment can be, and you can sue to have them “cease and desist” if it’s something like a website and it can be removed, but you cannot sue for damages unless you registered that work with the US Copyright office within 3 months of it’s creation. It’s generally considered crucial to have a registered copyright on a piece of art before an infringement suit of any kind can be brought into court, especially if said suit is demanding monetary damages.

Registering your artwork is easy. First you fill out an application for registration of copyrighted visual works (Form VA). You send that along with a “deposit” of materials to be copyrighted. This just means copies of the image(s) to be copyrighted. If unpublished, send one complete copy or identifying material for each piece of artwork. There are a lot of rules for the deposit detailed in Circular 40a. Finally, you send in a registration payment (currently $45.00, but the government loves to increase fees, so…). That’s it. Your copyright registration takes effect the day your application arrives at the copyright office, assuming everything is in acceptable form. You will not get notified that they have received it, but you will eventually get a certificate of registration saying the registration is complete, or a letter saying why it was rejected (usually because of improperly filled out applications or deposits).

You can register large groups of unpublished work at once (a “collection”), under a single registration application AND FEE, if the following apply:

  1. The works in the collection are assembled in an orderly form- The best way to do this is by year. All the artwork for 2006, for example.
  2. The collected works are identified by a single title- i.e. “Bobo’s artwork, Qurater 2, 2008?.
  3. One copyright claimant (or group of claimants) for the entire collection- You can’t have different artwork in there claimed by different people.
  4. All the artwork in the collection is by the same artist or co-artists

The benefit is one application, one fee. Published works have different rules. See the U.S. Copyright Website for more details. Save that link for any bouts of insomnia, because reading it will put you to sleep every time.

All that said (and back to your original question), I don’t advocate suing anybody as usually the ones you catch infringing your work are not worth the effort and there is no money to be had in most cases anyway. I usually write a polite but firm letter to the infringer telling them they are using my artwork without my permission (and usually without credit). If I don’t mind the context of use of the work I may just ask them for full credit and a link to my site, but usually I ask them to remove it out of general principal. In the case of busting a legitimate magazine infringing my work? I guess I would look into my legal options, but unless in was a porno magazine or some other publication I woul dnever allow my work in, I would demand payment for the use. The difference between that scenario and the same one under the Orphan Works law? Without Orphan Works, the magazine is 100% in the wrong and no dispute, and I get to tell them what a reasonable payment is.

Thanks to David Delatorre of Palm Beach, FL for the question. If you have a question you want answered for the mailbag about cartooning, illustration, MAD Magazine, caricature or similar, e-mail me and I’ll try and answer it here!

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