-by Dan dos Santos
A few years ago, a student of mine sent me an email letting me know that she saw one of my paintings in a movie she had watched. I've had a -lot- of people tell me similar things, and I usually dismiss it since those people are usually my Mom and Dad and tend to think anything remotely SFF related must have been created by me. But this person was a student of mine, and intimately familiar with my work, so I felt it worth looking into.
That student was kind enough to mail me a copy of the DVD, a rather large budgeted Bollywood movie called Saawariya. I was expecting to see, at worst (or best, depending upon your perspective), one of my paintings hanging on a wall as a camera quickly panned past it. I was pretty shocked to see that within the first few minutes of the film, my painting 'Shiva's Crown' appeared not as a small piece of background art, but as a massive stage backdrop.
My first reaction was 'Whoa!', quickly followed by, 'Wait... WTF?' I was never contacted about this usage, let alone paid for it!
Now, I've had clients stiff me for payment in the past, and it usually just takes a few nasty phone calls before they finally pay up. But this was something totally different. This wasn't a commission whose invoice was just past due... this was blatant copyright infringement on a global scale. I realized I was going to have to sue Sony Pictures, and I cringed. I have never sued anyone before, let alone a massive corporation like Sony, and had no idea what it entailed. I just envisioned myself going broke taking the case to court, only to be squashed by the massive legal team of the 'Big Bad Corporation'.
Luckily, that's not how it went down at all, and I'd like to share with you a few things I learned through the experience.
The first thing I did was find a Lawyer who specialized in entertainment. I ran a few Google searches, and found a guy in LA who handled just these sort of cases. He gave me two options;
1: Pay him his hourly fee to write a letter to Sony and hope they cough up the money. If they don't, continue to pay him his hourly fee to pursue the case.
2: Pay him nothing, but give him 30% of the awarded damages should we win any.
Not knowing how long something like this could go on for, I thought it best to choose option 2.
My Lawyer had me watch the movie and document every instance where my painting appeared on screen, as well as clock the total running time of those appearances. I also had to send him proof that the painting in question had be created before the movie went into production. Luckily, the painting was used as the flyer for a gallery show I was part of back in 2003.
He then proceeded to write a letter to Sony describing the infringement, demanding payment, and threatening them with legal action if said payment wasn't remitted. Sony, in turn, stated that they were not legally responsible for any infringement since the were just the producers, not the creators, and that the creators of the film had signed waivers, making them the guilty party. This actually discouraged my Lawyer quite a bit, since this means we had to hunt down the studio in India that created the film, and that the infringement was now subject to that country's laws.
We found the studio responsible, and once again my Lawyer wrote a letter demanding payment. Surprisingly, they replied very promptly, were very apologetic, and sent payment immediately in order to avoid any legal action.
The sum I received as compensation was more than fair, and certainly much more than I would have charged them had they simply asked permission in the first place. I did not receive a Zillion dollars however, as I'm sure my Lawyer was hoping. I don't know that I would even want to receive an unfair amount of compensation (simply on moral grounds), but a few things prevented that from happening anyways.
The biggest hurdle in receiving compensation was that I had never registered the image with the US Copyright Office. There seems to be a lot of confusion surrounding copyrights, so I thought I would clarify a few things. Firstly, every image an Artist creates is instantly copyrighted the moment it is created. The Copyright office does not grant copyrights, it registers them. The purpose of this registry is for just these sort of cases. If someone infringes a copyright, you have proof that you own the copyright, and that they were either negligent, or were aware of the deliberate infringement since the image is on file. If you have not registered the image, the culprit can claim ignorance, and is held far less responsible. Basically, we have laws about this stuff... but if you can't prove a law was broken, then there is no crime. Hence, the need for a registry.
If you have not registered your image, you can only sue for the fee you would have initially charged, plus a little extra to serve as a future deterrent. Without the deterrent, people would always steal their images hoping to never get caught, and if they did, the only repercussion would be having to pay what they would have had to in the first place. If the image is unregistered, you can not sue for amounts over $30,000, and you can not be compensated for legal fees.
All this changes if you've registered your image.
If your image is registered, meaning the infringement can be proven as deliberate, you can sue for up to $150,000 per instance, as well as all legal fees incurred. Further more, the judge can serve an injunction, stopping the movie from being released in theatres or sold as DVDs until the the matter is settled. Not being able to release a movie would be a financial disaster for the studio, so they would likely settle for any amount you asked.
So the lesson in all of this is, even though you own the copyright to everything you create, it is in your best interest to register that copyright. Now, you must be saying to yourself, 'I've created hundreds of images... wouldn't that cost a fortune to register them all?' The answer is 'no'. You can print a single book containing all of your work, and register that book. All images contained therein would then be copyrighted as well. The only downside to this is that the effective date of those copyrights would be when the book was created, regardless of how old any image inside of it was.
To make it even easier, you can now register your images in the form of a PDF through email.
Go here for more info: http://www.copyright.gov/
Labels: article, DD, education