You Should Consider Licensing Your Work To Your Infringers

Watchmen symbol © DC Comics.

Watchmen symbol © DC Comics.

About a year ago, an illustrator friend of mine discovered that some guy - we’ll call him Hank - was using one of his paintings as the cover for a self-published e-book. Apparently, Hank had found the image on my friend’s portfolio site and downloaded it without permission, credit, or payment. My friend did what you might expect. He emailed Hank and told him the jig was up. What you might not expect is that instead of threatening legal action, my friend offered Hank the continued use of his image for a small fee and some credit. Hank obliged and the two were able to work it out in a classic lemons-into-lemonade detente.

When you find out that someone is using your work without your permission, the urge to satisfy your vengeance upon the infringer will feel overwhelming. Sending a threatening letter can be a powerful salve because it indulges your righteous fury. But you should fight that urge because I think being nice can often reap you greater benefits. Threats should be your last line of defense, not your first, and for three very good reasons: First, it’s been my experience that most infringers don’t even realize they’re doing it (thanks to the internet it’s so easy to infringe someone’s work these days without even thinking), and those that know what they’re doing often stop once they get found out. Second, I think it’s bad karma to start the process in such an aggressive place. Third, I think it can foreclose exactly the kind of opportunity my friend wound up with. If he had threatened Hank right off the bat, Hank might have stopped, but both would have been poorer (literally) for it.

In any situation requiring a confrontation, you should apply my Karmic Rule of Three™:

First Interaction
State the problem and remedy in a pleasant and friendly manner.

Second Interaction
 If no progress has been made, state the problem and remedy again in a direct but non-threatening manner.

Third Interaction
If no progress continues to be made, directly state the remedy you require along with the threat of legal action… but do it politely.

If you follow this rule and you’re still not getting anywhere, don’t yell or curse at them, don't let them see you lose your cool. Simply cease communication with the infringer and call a lawyer. Let them take over. But if you find that your infringer is willing to engage, here are some common licensing terms you should be ready to discuss:

  1. The length of time the infringer can use your work;
  2. The purpose and medium of the infringer’s use;
  3. How much of your work the infringer can use;
  4. Whether and where the infringer has to credit you as the artist;
  5. Any fees or royalties the infringer must pay you to use your work.

Some licensing agreements can get very complicated, particularly when it comes to software, but in many cases it can be a fairly simple thing. Ultimately, you’re going to have to determine case by case whether an infringer is an innocent or a bad faith party and whether you can work out a deal with them. If you can, I think that’s better for all involved. After all, just because you were ripped off doesn’t mean you can’t make some money... and even a friend.

Greg Kanaan

The [Legal] Artist, Boston, MA, USA