Business + Marketing

Getting Cozy with Copyright Again

December 11, 2017

By Aaron M. Arce Stark

Photo © Ethan Yang Photography

As we come to the end of the year, it’s important for artists and creators to circle their wagons, examine their practices and make sure they are protecting their copyrights. Here’s a refresher on some of the most basic essentials to consider.

First, always register your copyright. To be honest, copyright registration is not technically necessary to own a work. Prior to 1976, the Copyright Act required an author to register their work in order to own a copyright, but now you need merely “fix” your work in a “tangible form” in order to own it. However, copyright registration is vitally important if you want to do anything—you cannot sue an infringer until you register your work. What’s more, if you wait until you see someone infringing your work to register your copyright, you will only be eligible to receive “actual” damages. Actual damages consist of the money that was actually made from the infringement of your work, and it’s usually pretty low. However, if you register your copyrights in a “timely” fashion—before any infringement or within three months of first publication—then you will be eligible for statutory damages and attorneys’ fees. Statutory damages can go up to $150,000 for willful infringement, so registering your copyright is very much worth the effort. Registering is relatively cheap and easy—you can file an electronic application at (fees range from $25 to $140).

Second, make sure that all of your work, wherever it is displayed, contains the correct copyright information. That includes two things: a notice of copyright (the © symbol, or some other indication, such as including the words “copyrighted”), and your copyright management information or CMI (which is extremely important). Your CMI includes the name of the work, your name (or the name of all the authors), the date it was created and how people can contact you to ask your permission to license your work. If someone reposts your image and removes your CMI, the Copyright Act provides for a minimum statutory fine of $2,500, up to $25,000, on top of whatever royalties or damages you may receive for the infringement itself.

Displaying a copyright notice also means that everyone who sees the notice knows that your work is copyrighted, and therefore any infringement can be considered “willful.” As stated earlier, willful infringement can be grounds for statutory damages of up to $150,000. It pays to let people know that your work is owned.

The third line of defense is subtler but no less important. When posting images on any website, carefully read the terms and conditions of use. A website may repost your image, edit or alter it, or even offer it for sale, all while hiding the release allowing them to do these things deep inside its terms and conditions. Some websites may strip your image of its CMI, or add metadata that allows potential infringers to more easily find or appropriate it. This website may be able to help you determine which sites are safer to use:

Your fourth line of defense is a good offense. If and when you catch people infringing your works online, don’t be afraid to come after them. There are three distinct ways to do this. First, you can start with a DMCA takedown. The DMCA (Digital Millennium Copyright Act) requires websites hosting copyrighted works to take down works after receiving proper notice of an infringement. Most large sites and social media platforms will have their own online form that you can fill out if you believe someone is posting your work without your authorization, and if a site has such a form, using it will get you the fastest response. Otherwise you will need to send a takedown notice to that site’s authorized agent, or to the hosting ISP if the site doesn’t list any method to communicate takedown notices.

A DMCA takedown notice can be effective on large social media platforms, but it may not be useful for someone posting your work in a different forum. To deal with specific infringers, a cease-and-desist letter may be best. It’s just a polite letter that states that you own the image in question and that you’d like them to remove it immediately or face legal action. You can write the letter yourself; there are plenty of sample C-and-D’s online. It may be wise to include a copy of your copyright registration with your letter.

The last method is the most intense, but also the most effective. If your DMCA notices and C-and-D letters haven’t gotten any results, hire an attorney. Your attorney can write a more strongly worded C-and-D letter, which is usually more effective than those from authors, but if that doesn’t get results, your attorney can help you file a lawsuit. Lawsuits are costly, time-consuming and draining, but they can have a big payout, if you’ve registered your copyrights in a timely fashion–and at the very least, a lawsuit will force your infringer to take down your images.

Your creative work is a valuable resource. Don’t think that just because it is intangible intellectual property that you don’t need to protect it. Take these steps to make sure that nobody gets the value of your work before you do.

Aaron M. Arce Stark is a lawyer for artists and entrepreneurs. Learn more about his law firm, Arce Stark Law LLC, at

This article is for informational purposes only. It is not intended and should not be construed as legal advice. Contact a lawyer about legal issues.

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