Appropriation / copyright infringement: Practical advice & further reading

Creative Business & Entrepreneurship | Published 08 June 2009
Co-partnered with Sculpture magazine
Page 5 of 5

R.J. Preece: Then what is your practical advice on protecting copyright?
Paul Tackaberry: The first piece of advice is to keep your eyes open. Keep in mind that you are responsible for policing your rights. So you need to get out there, do Internet searching, and keep your ear to the ground. And consider enforcing your rights bearing in mind that nobody is going to do that for you. This may seem obvious, but many people think there is some sort of mechanism in force that does this for them. And there isn’t.

Then when you identify an infringement, it’s important to determine that there’s a valid basis for complaint, that is, that the infringed work is original, and that you own the copyright of the infringed work, and that the infringing work reproduces a substantial portion of the infringed work. This may requires some expert advice.

To help my clients tune in, for example, I often first send them an overview sheet before speaking to them. I’ve found this helps people ask clearer questions so I can advise them more quickly. When a copyright infringement is determined, usually the next step is a strongly worded demand letter. The ultimate objective should be to curtail the infringing activities as soon as possible as opposed to aiming to get millions of dollars in damages paid. For the latter, damages often require going to court, and you’ve got to have funds for that.

Taking a claim through to a decision at trial would entail costs of at least USD$50,000, but often can run into the hundreds of thousand, or even millions. Here I’m referring to Canada and the US.

RP: Lastly, do you think reading news reports is helpful to someone who wants or needs to learn about copyright?
PT: Not really because you rarely get a full discussion about the issues in a news report. Lawyers are reluctant to discuss a current case in the media. For most, that is unwise. And many judges are not very keen on lawyers who do that. As a result, journalists end up describing one part of the case. Most government agencies have websites—the U.S. government for example has an excellent one. This is probably the best source.

How a lawyer learns in the US, Canada and UK systems is by reading cases, especially final court decisions. But please note, there often isn’t a final decision. Instead there’s a settlement.

That’s largely because of the litigation cost that would result in a decision.

R.J. Preece is a Contributing Editor of Sculpture and Editor of Art Design Publicity.

Note to readers: As some of you know, copyright is not only an issue affecting artworks, but also magazine articles and books on artists and designers. This sometimes affects what images and texts we see, and don’t see. For visual arts students, we suggest you ask your teachers in art/design history that have experience in magazine and book publishing about this usually hidden process. They may offer interesting stories...

Links to other writings online about art and copyright

M. Contraband, Esq. (1 October 2009). Slammin with Jeff and Damien. Art Design Publicity.

Arifa Akbar. (6 December 2008). Hirst demands share of artist’s £65 copies, The Independent (Retrieved 3 January 2009).

Dalya Alberge (27 July 2007). My old friend Damien stole my skull idea, Times Online (Retrieved 3 January 2009).

Daily Mail (under corporate authorship) (12 December 2008). Damien Hirst ’threatened to sue teenager over alleged copyright theft’. (Retrieved 3 January 2009).

Jonathan Jones (15 December 2008). How Damien disappointed us, The Guardian (Jonathan Jones on Art Blog) (Retrieved 3 January 2009).

Susan Kelleher & Sheila Farr (8 August 2006). "Chihuly turns up the heat on competing glass artists", The Seattle Times. (Retrieved 3 January 2009). As of March 2010, this excellent article is not online. So search the library newspaper databases to get a copy.

New York magazine (under corporate authorship) (6 May 2008). Art Student Nadia Plesner’s giant Louis Vuitton copyright suit, New York magazine (Retrieved 3 January 2009).

Peter Walsh (February 1998). The coy copy: Technology, copyright, and the mystique of images. Paper presented at the Town Meeting on Copyright and Fair Use. College Art Association, annual meeting, Toronto, Canada (Retrieved 3 January 2009).