California Lawyers for the Arts is an advocacy organization for artists, makers and musicians. For 40 years they have been providing artists and musicians with referrals to lawyers, dispute resolution services, and education programs along with a publication library specifically for individuals in the creative arts and for art organizations.
I have attended many of their educational programs and used their arbitration service. In 2015, I attended a program titled, Fashion Law Primer: Protecting Your Designs taught by Rachel Fischbein, Esq. (More information about that class in the next post.)
Rachel Fischbein will also be writing a post for ASK Harriete on how to approach a copycat infringer, composing a cease and desist letter, and what documents you should keep before and after you notice the copying. A follow up post will illuminate whether or not to make a public statement about the copying. Are there any legal consequences to discussing a copycat situation publicly? I really want to know. So stay tuned for this series on ASK Harriete.
BACK to information from
California Lawyers for the Arts:
While CLA was the first legal organization to support the arts, I know many states now have their own organizations. Do some research for your state.
For any one of us witnessing examples of copied work, stolen ideas or workshop content, or borrowed or copied images, what is the legal recourse that offers an alternative to hiring lawyers?
"Copyright issues are exclusively a matter of federal jurisdiction, but taking a case to federal court, with its arcane local rules and discovery procedures, can be expensive and time consuming. A survey by the American Bar Association showed that the average cost of a copyright infringement lawsuit in Los Angeles through the end of discovery was $292,000; the average cost through the end of trial and appeal was $517,000. Unless actual damages are truly substantial, the copyright holder will be without an effective remedy in federal court. "
It would be ideal if there was an option such as Small Claims Court. This article, Small Copyright Claimants Need Access to Justice on the California Lawyers for the Arts website from 2013 discusses this option. Perhaps at some time in the future with advocacy from the arts community there will be a small claims court option available for everyone.
The blog on CLA includes informative articles which are worth reading about copyright infringement. The "ongoing debate about sampling rights and legal ownership of musical property" is discussed in their post Blurring the Lines Between Homage and Infringement. If you aren't familiar with the copyright debate regarding this song, or any copyrighted content, a post on ASK Harriete, The Good Wife Discusses Copyright Infringement, Derivative Work, Parody and Fair Use offers more background on this topic.
While the legal case above involved music rather than visual arts, the same principles apply. "Ostensibly, it would seem that copyright infringement is straightforward: either you appropriated someone else’s work and called it your own or you didn’t. In order to be found liable for infringement, two things must be proved. First, there must be direct or indirect evidence of access to the original composition. Then, if access has been established, “substantial similarity” between the original and the alleged infringing work needs to be shown."
Stay tuned for a future post by Rachel Fischbein for your first steps in dealing with copycats.
NOTE "TO WHOM IT MAY CONCERN:" Copying someone else's work or appropriating someone else's ideas or images is not only illegal, but is ethically, morally and artistically a complete dead end to your future career.
This post was updated on December 11th, 2021.