Question: I’m a recent design school graduate with a degree in fine arts (BFA). While interviewing for a job, a prospective employer questioned whether some of my online portfolio was “truly original,” or whether I had copied it from someone else. I took offense to this initially, until she sent me links to a major retail website that’s selling prints of my work without my permission. I’ve since found several other websites selling prints and merchandise that include some of my original designs. Do I have a case against these retailers?
Answer provided by: Cary B. Hall, Esq. from the Law Offices of Cary B. Hall, LLC
It is unfortunate to hear that you have had this experience. As a general rule, the creator of a work is the owner of all copyright interests in the work. Use of your copyrighted work by another without your permission may constitute copyright infringement. As with other types of cases, remedies may be awarded by a federal court such as an injunction, impounding/disposal of infringing articles, damages, profits, costs and attorney’s fees.
As a practical matter, your potential case against major retailers or websites will depend upon specific facts, such as your actual damages, infringing profits, likelihood of prompt resolution, whether the potential defendant is “judgment proof,” publication of your work, and other factors. A key question in assessing your case initially would be whether or not statutory damages are available.
The existence of statutory damages – which are awarded by judge’s discretion without proof of actual damages – can provide a point of early leverage in negotiation. In general, statutory damages and attorney’s fees are available only where (1) a registration of the copyright was sought before infringement of your unpublished work, or (2) in the case of a “published” work, infringement began after first publication of the work and before its registration, or the registration was made within three months after first publication. In short, assuming your work was first published more than a few months ago, damages may be limited to your actual damages and the infringer’s profits.
As you can probably already tell, copyright law is very technical and often intimidating. It’s worthwhile to consult with a knowledgeable intellectual property attorney early on to get the information you need to protect your creative products. Should you intend to take action against these major retailers and/or websites, any lawsuit must be filed within three years after the claim accrued. In the future, it is relatively inexpensive and can obviously prove valuable to register your copyrights early. An array of information about copyright and other intellectual property can be found at www.copyright.gov.
Many thanks to Robert Duminiak, Esq. of Howson & Howson for his intellectual property expertise and assistance in answering this inquiry.
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More about this Montgomery Bar Association member-panelist (bio provided by this attorney prior to publication):
My practice focuses on criminal, civil and family law litigation with over 20 years of tested experience throughout southeastern Pennsylvania and Maryland. My passion is assisting individuals and small businesses with their varied legal issues.
I have successfully tried civil and criminal jury trials, contested family law hearings, administrative proceedings and appeals. I also serve as an arbitrator in civil court cases, and have been court-appointed as defense counsel in state criminal prosecutions.
In addition to my solo law practice, I additionally serve as a Special Assistant Public Defender in Magisterial District Courts throughout Montgomery County. I'm a contributing author (and have even been editor-in-chief) to the Montgomery Bar Association's Civil Practice Manual, the definitive legal manual for practicing law in Montgomery County.
Many moons ago, I earned an Ivy League degree in philosophy from Columbia University, and then my law degree from the University of Miami. I began my legal career as a judicial law clerk in Towson, Maryland, and first established my own law practice there at the age of 26. I moved to Pennsylvania in 2000, and revived my solo practice after working for a few years with local law firms. These early efforts were rewarded by being named a "Pennsylvania Super Lawyer - Rising Star" in 2005 and 2006 by the publishers of Philadelphia magazine. Based upon my law firm experiences, I have found that I now best serve my clients one-on-one as a solo attorney.
Currently, I am privileged to be a trusted advisor and knight-in-shining-armor to satisfied clients throughout the country. I pride myself on providing personalized and affordable legal service to my clients . . . and I even return phone calls.
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