Dear Artists, Don’t Stick Your Head In The Sand

Imagine one day you decide to start a podcast. You're very excited about your new venture and spend countless hours researching topics, writing copy and setting up your recording booth just so. But you know that if you want people to listen, it needs to be entertaining, and 45 minutes of you talking into a microphone won’t be. It's got to be a real multimedia experience; that's the difference between entertainment and lecture. Among other things, you'll need music, maybe some sound effects, and even archival audio material to spice things up. 

So where do you find those things? And when you find them, do you properly attribute them? Do you request permission to use them and pay a fair licensing fee? If there’s something specific you want, do you make a good faith effort to find the owner, or do you just take it? If you don’ have satisfactory answers to these questions, you may want to rethink your strategy before you hit "publish."

One hallmark of being an artist is excitement about your latest work and a strong desire to get it out into the world. You want people to see it, to comment on it, and hopefully, to enjoy it. Any artist who claims otherwise is lying - to you or themselves. It's easy in that situation to get tunnel vision and let caution fall by the wayside. When momentum is on your side, why get bogged down in administrative matters?

I understand that impulse as much as anyone. I've been an artist (I like to think I still am) and I see it with my clients.  But I want to take this space to urge you, dear artists, not to stick your head in the sand and assume no one will care about those administrative matters. Even if you don’t, I promise you someone else does. I’ve long advocated on this blog for sweating the business stuff because being an artist these days means being a business owner - whether or not its formalized and even if it's not a primary means of income. Using the copyrighted work of another without permission puts you and your business in jeopardy. Maybe not today and maybe not tomorrow, but eventually someone is going to notice, and they're not going to accept "I didn't know" as a reasonable excuse.

It's tempting to pin your hopes on fair use, but the problem with fair use is that to prove you’re covered by it, you need to defend yourself, which almost certainly means thousands of dollars in legal costs. Some courts view fair use as a right, while others view it merely as a defense (which means you can't assert fair use until AFTER you've been sued), but practically speaking, the only way to know for sure whether fair use applies is for the litigation to play out. Just saying the words "fair use" is no more a shield against litigation than yelling "I declare bankruptcy" a way of erasing debt.

We live in a litigious society. And IP holders, especially large corporate ones, have no compunction about hailing little guys into court over minor infractions. Defending yourself will take money you don’t have, and months or years out of your life. Sometimes, companies go bankrupt simply defending themselves in court. I can assure you that even if you win, it’s not worth it.

Which means - let’s say it together - you have to sweat the business stuff. You need to have things like contracts, bills of sale, release forms, licensing agreements, and business bank accounts. It means you probably have to incorporate your business. It means you can’t rely on fair use unless a lawyer tells you it’s okay. It means you have to ask permission to use work you didn’t develop. There’s a lot more to it than that, but you get the gist.

Don’t stick your head in the sand, hoping that ignorance will save you. Pay attention to the administrative matters. Build it into your schedule and workflow. If you hate doing it (welcome to the club), have a friend or spouse or family member help you. I’m not trying to rain on your parade. I’m here to tell you the rain is coming one way or another. I just want to make sure you have an umbrella.

You Should Offer Licensing Options To Potential Infringers

“How do I protect my work online?”

I get asked that a lot. So much in fact that I’ve given half a dozen presentations on it over the past eighteen months. I could probably build my whole law practice around that one question and make a decent living at it. When you consider the ubiquity of the internet and the ease in which work can be taken and repurposed without your knowledge, you can see why it's such a pressing issue. Last year I partially addressed it in a blog post about licensing work to people who'd already infringed it. The gist of my argument was that instead of getting mad, maybe there was a way to get paid instead. After all, if the infringement has already taken place, why not try to make a few bucks off it?

But you don't have to wait until you've been infringed to make a deal. You should try and do it before the infringement even takes place. How? By offering licensing options to your work right up front!  As you'll see below, doing this is so simple you're going to kick yourself for not thinking of it sooner.

1. Be easy to contact. Wherever your work shows up - your website, Linkedin, Behance, Pinterest, Facebook, etc. - place your contact information in a conspicuous place. A lot of work is taken without permission because a potential buyer couldn’t get in touch with the artist, so this feels like an easy fix. Offer more than one way to get in touch so the buyer knows you're actually reachable. Some artists are understandably hesitant to give out their phone numbers, but as long as a buyer can reach you by email and at least one other method, you're good to go.

2. Tell them you're ready to do business. Put some variation of the phrase "Licenses available upon request. Contact for more information." clearly and visibly on any website where your work appears. This clearly communicates to the buyer that you're ready to do business. It's also good as an evidentiary CYA move if you ever had to prosecute an infringement case down the road. It's much harder for an infringer to argue in good faith that he didn't know your works were available for purchase if you state it in big bold letters. If certain pieces are not for sale, make sure they are clearly labeled as such. For example, "This image is not available for license or sale."

3. Be ready to do business when the requests come in. Have sales or licensing options ready to go. If the piece is for sale, indicate in writing whether or not the copyright (and all attendant ownership rights) is conveyed along with the actual physical piece. The buyer has a right to know if he’s getting the copyright or not. If you go the licensing route, you can use pre-existing licensing agreements like those at Creative Commons or you can make your own. If you choose the latter, be sure to include these terms:

1. The amount of time the buyer can use your work;
2. The purpose of his use;
3. Whether or not he can make derivatives or copies;
4. Whether or not he can distribute your work or its derivatives;
5. The amount of the work he can use;
6. The geographical location he can use your work in;
7. Whether or not he must credit you as the author;
8. Any fees, payments, royalties stemming from the use.

This isn't an exhaustive list of licensing terms (and they will vary depending on your comfort level), but it's a good start and should cover most scenarios. If you're savvy enough at programming, you can even create functionality in your website that allows buyers to license your artwork automatically, without ever needing to contact you.

Obviously this strategy isn't going to apply to all of you, and it won't always works either. Sometimes people just want to steal to see if they can get away with it. That said, it's my experience that most infringers don't realize they're doing something wrong and are more than willing to parlay with you if they only knew how. So give them the option. It's easy to do and the results could be an uptick in your business.  Considering how little effort this strategy requires, isn't it worth a shot