Archive for FAQs: Art and Licensing

Demand Letters: How to Deal With Them

Most people who are unfamiliar with the process imagine that when legal troubles arise, you go directly from a life of peace and quiet to being enmeshed in the midst of litigation. But that’s not usually the case.

Some time back, I was hired by an agent to defend her client after the artist received a demand letter. The artist, who was producing covers for a series of young-adult books whose hero was a horse, had used a horse photo for picture reference. Despite the changes the artist made to the picture—altering the color of the animal, and the background—the horse’s owner claimed the picture belonged to her. Her letter demanded a payment of $10,000 for the alleged copyright infringement. To avoid upsetting the publisher of the series, the artist and agent wanted the matter settled rapidly.

Typically, before you find yourself in the middle of a lawsuit, you’ll have prior warning in the form of a cease-and-desist, or demand, letter, similar to the one this artist received. Such letters—usually, but not always, from a law firm—state the situation in the most dire terms possible. They’re meant to intimidate the recipient into complying as quickly as possible with the letter’s demands, to avoid further problems or compelling the plaintiffs to proceed to litigation.

If you’re the recipient of a demand letter, the most important thing you can do is not panic. The letter’s language is designed to elicit that reaction—don’t give the sender the preliminary victory of doing so. It may be necessary for you to hire an attorney to write a response, but you can alleviate some of your worry by first looking for any vagueness or exaggerations in the letter. You can easily discern the holes that are sure to be there.

The most encouraging aspect of the horse-picture demand letter was the very thing that was intended to sound the most terrifying: the demand for a $10,000 payment. That was because the adversary had both locked herself into a figure she expected to receive, and indicated by the sum that she probably had no leg to stand on—which proved to be the case.

Ultimately, the demand was settled for a fraction of what the claimant initially demanded, and the relationship between the artist and publisher was saved. No litigation was necessary.

As frightening as a demand letter may seem, you’re equipped to evaluate whether its threats have validity, even before you contact an attorney to address them.

1. Protecting artwork

a. Do I need to be concerned with copyright if I show my work in galleries?

Yes. Copyright governs the display of your works. Even though you legally retain your copyright after you sell your tangible work when you transfer it to a buyer, it is wise to ensure that the purchaser understands this, and that your copyright is protected before the work leaves your possession.

b. Do I need to be concerned with copyright if my work is produced for publication?

Yes—even more than someone whose work is primarily shown in galleries. Copyright governs the reproduction of your work, which means that you have to be aware of—and protect—your copyrights when your work is reproduced in any way, whether in gallery catalogs, in any form of printed matter, on websites, or on merchandise.

c. Can I copyright or trademark my artistic style?

No. “Style” is not copyrightable, but copyright may cover elements of an image which you have created if someone else copies it.

2. Do I need to protect my writing with copyright registration?

Yes.  If your unpublished manuscript is used without your permission and the work has not been registered, your remedies are severely restricted if you have not registered the work with the U.S. Copyright Office.

3. How do I protect my music?

As with drawn or written work, the best protection for music is early copyright registration. There are two forms of registration which may apply to music: registration of the written music, and registration of the sound recording. A songwriter who performs his or her own works should secure both forms of protection.

4. How is “entertainment law” different from copyright law?

“Entertainment law” is grounded in the copyright licensing of works used in the entertainment field, such as musical or dramatic works used in television or film, but entertainment agreements may also encompass matters which go beyond acquisition of rights, distribution of the work and division of proceeds, such as options, production financing, personal services, name credits, and trademarks. 

5. Is graphic design protected by copyright?

Graphic design covers many different forms of graphic art. Some graphic design is copyrightable, some is not–typefaces, for example, are not protected by copyright. Graphics, the written material which accompanies the graphics, and sometimes the layout of the graphics can be protected by copyright. Many graphic designers mistakenly do not seek copyright protection for any of their work, and in consequence suffer if their designs are re-purposed by clients without express permission.

6. Can a website be copyrighted?

It is more accurate to say that the elements of a website which are copyrightable can be registered. A website may have many copyrightable elements, such as the images, the text, and perhaps the underlying design of the website. These elements can–and should–be registered separately. A website should never be simply registered page by page.

7. What is licensing?

“Licensing” is the term for granting or obtaining permission from the owner to use a trademark or copyright.

8. How do I license my trademark or copyright?

A “license” is the formal permission you grant to someone for use of your trademark or copyright. The terms under which you grant your license should be governed by a written agreement.

9. How do I license someone else’s trademark or copyright?

As with granting a license, the terms under which a license is obtained for usage of a property should be governed by the terms of a written agreement.