As artists, if we are fortunate enough to afford the associated fees, we invest substantial sums of money to formally register our copyrights and trademarks with the United States Copyright Office and the United States Patent and Trademark Office (USPTO). This process is undertaken with the expectation that we will receive enhanced legal protections beyond the basic copyright rights granted to all creators upon the mere act of creation.
I have personally invested thousands upon thousands of dollars in registering my works and my legal name with the U.S. government, with the express purpose of safeguarding myself from precisely this type of infringement. However, in light of recent developments, I find myself questioning the value of that investment, as I am left to contend with the very issues I sought to avoid. The protections I paid for appear to be lacking, and the outcome of this case has caused me to reconsider the efficacy of these registrations.
I am not alone in this sentiment. Increasingly, I hear from fellow artists who are beginning to share my disillusionment. Rulings such as this one have fostered a sense of frustration and resentment, as many of us feel that the protection we have paid for is not being adequately provided or enforced.
AWARDS OF STATUTORY DAMAGES:
*the following is taken from the website nolo.com (legal-encyclopedia)
“In many copyright cases, both actual damages and profits are difficult to prove. How do you really know how many t-shirts you would have sold, or how much money you’ve lost, as a result of someone’s infringement? At best, the numbers are murky.
For that reason, the Copyright Act, provides a third category, known as statutory damages --- that is, specific monetary damages set by law. However, only a person who is registered a work with the U.S. copyright office before the infringement (or within 3 months of publication) my receive statutory damages.
Such a plaintiff in an infringement action may opt for either actual damages (and the infringer’s profits, if appropriate) or statutory damages, but not both. It is often said that copyright plaintiffs "elect their remedy.”
Statutory damages are explained in 17 U.S.C 504c. For infringements that cannot clearly be proven as either innocent or willful, statutory damages may be from $750 to $30,000.00 per infringement. The exact amount depends on the seriousness of the infringing act and the financial worth of the infringer.
On the other hand, an innocent infringer may have to pay as little as $200, while an intentional infringer may have to pay as much as $150,000 for a single infringement of one work.
In short, statutory damages, provide a clearly defined remedy for victims of infringement without the murkiness and uncertainty of the first two categories of damages.
The basics of the case were
- Kenneally went online and downloaded my copyrighted images without my permission to be put into art kits and sold without my permission for profit. Ms. Kenneally could have easily contacted me via phone or email to ask my permission but she did not. Art teachers around the world have easily contacted me to ask my permission to create art classes to teach my styles to the students in their classrooms.
- Kenneally used my trademark – Michel Keck – without my permission.
- Kenneally did not use my images and name in purely not-for-profit instructional purposes with children. Ms. Kenneally charged a fee to profit off the sale of these ‘art kits’ which were sold to anyone who came to her website to purchase.
- Kenneally shipped my copyrighted images and trademark through the mail in art kits that did not include any statements or warnings in the kit to the end user that creating derivatives of another artists works for sale purposes might infringe on the original creators rights.
