• You should file for copyright.
To reiterate what I said in Lauren's post, if a copyright is infringed (and the usage does not fall under the Fair Use doctrine or aren't examples of Copyright Misuse—yep, there is such a thing—or provable instances of Laches i.e. "sleeping on one's rights") the artist is limited to suing for "compensatory (actual) damages"—i.e. roughly the amount they would normally charge to create the piece if the infringer had hired them. The artist can try to seek additional money for possible lost secondary licensing revenues (the burden of proof is on them that they have a licensing program in place) as well as non-economic damages such as pain and suffering and emotional distress as part of their compensatory damages, but they're rarely if ever awarded in copyright cases. That's the limit they can attempt to recover unless
the artist has filed for formal copyright (as I mentioned above).
With that formal paperwork in their pocket the artist is able to seek compensatory and
punitive damages. Punitive damage amounts awarded may vary between state and Federal statutes and there are no "official" caps, but in copyright cases it's usually 4 x compensatory damages. On top of that, the artist can be awarded attorney fees as well, a big deal since litigators can ouch you for $250+ an hour and the hours add up fast. HarperCollins recently won an infringement case
and are seeking $1.1 million in damages and attorney fees. Will they get it? Hard to say but the paperwork is allowing them to seek it. Regardless, much like paying for an insurance policy you probably won't ever need (except maybe just that once!), filing for formal copyright
of your art is worth it, for your peace of mind if nothing else.
Above: Disney was not amused by Dan O'Neill & Co.'s infamous underground parody of Mickey Mouse. They sued the artists, won after nearly a decade of litigation, and were awarded $190,000 in damages and $2 million in legal fees. Since it was a batch of impoverished artists that lost, Disney was never able to collect much of the judgement and finally reached an agreement with O'Neill: if he left their stuff alone, they'd leave his bank account alone. That was in 1971-1980. It's a different world now and you'd better bet that if the same thing happened today somebody would be working at Disneyland wearing a Goofy costume to pay off the judgement. For 200 years.
That's the barest of bare bones basics; there are more
aspects to copyright for artists that I might talk about in the future—Fair Use (when copyrighted work can be used by others without permission, within limits and as long as the copyright is credited); transformative works (which allows one artist to take the copyrighted work of another and "transform" it into something new); how you can lose your copyright; when parody is and isn't
protected; when copyright status trumps trademarks, etc.
I know much more will be addressed in Lauren's and Marc's book
when it's released. But let me close with the most common sense advice I can give: keep records of everything you do, respect the copyrights of others (whether an individual or a company) the same way you want others to respect yours, and when you're in doubt or have legal questions, consult a copyright/intellectual properties lawyer. It's worth the money.