Art + Law + Blog : Art Law Lawyer & Attorney : Bryan Cave Law Firm : Chicago IL Consignment & Art Dealer Agreements

How this can happen.
The issue is not about posting pictures online; it’s about access. Our artist thought she was protected. She, like many artists, uploaded many of her photographs into an account she had with one of the many picture hosting websites, and she had a creative commons license for pictures on that website. The problem arose when she set up her account so pictures she posted would also automatically post to her profile on a social networking site. Although the creative commons license covered the pictures on the first site, her privacy settings allowed advertisers access to the photos when they posted on her profile.

Tailored Advertising.
In order to make advertisements more tailored to an individual user, social networking sites are utilizing user’s photos to help promote sites, companies, etc. to that user’s friends. In addition, third party advertisers are also gaining access through applications and using photos for their ads (an activity social networking sites claim violates their policies).

Should I run to a computer and change my settings?
Maybe, but not necessarily. The catch is that the default settings can be different sites can be different, even within the same site. For example, social networking sites may require that you affirmatively give a third party access to your profile when you download an application. That same site, though, may have a default setting which gives it open access to your photos (search "social media privacy settings" to find a lot of information on the difference between the two). Therefore, you should understand the privacy options and defaults for any site on which you post your works.

But, whether you want your pictures used depends on your circumstances. On one hand, you may risk giving up control of your work. What right you give an advertiser depends on how the privacy settings are worded. This is especially true for applications which often grant access and possible use of your entire profile. Often, you have no say in what companies may use your works or in what way, and you may not even know who the companies are (especially for access through applications). As our photographer found, she had never heard of the company that was using her photograph. If you have an established portfolio, these uses may also dilute your works’ reputation and could lead to a reduction in the price people are willing to pay for your works.

On the other hand, this may give your works greater exposure. After all, any publicity is good publicity, especially for an up and coming artist. Our photographer found out about the use because a friend was impressed how a company had picked up her photograph. Plus, some companies are willing to negotiate usage rights if the photograph is a good fit for their ads.

Copyright Can Be Big or Small.
You can get a copyright for your original work of authorship. But, your copyright (i.e. just what it covers) can be bigger or smaller depending on how much of your work is original to you.

What Exactly Is Infringement?
The "right" in copyright entitles you to keep someone from infringing your copyright. I infringe your copyright when I copy your work, plain and simple.

But, as we already covered, your copyright only covers the list of original elements you add. So, you can stop me only from taking those elements. Putting it all together, your copyright prevents me (or anyone) from copying the original elements you add to something.

Don’t forget, though, when you are creating a work, you infringe if you use original elements someone else created (assuming they have a copyright).

Your Day in Court
If you sue me for copying your work, the court will probably follow this same idea. It will make a list of your original elements and see how many of those elements appear in the supposedly copied work. Although this is full of case-by-case issues, the basic idea is: the higher the percent of shared elements, the better your case against me.

Infringing a Nature-Based Work
When it comes to enforcing your copyright in a court, nature-based works are a double-edged sword. As we discussed before in Pitfall No. 1, your original elements list will be shorter because many aspects of the work come from mother nature herself. Her work cannot be original to you. This is good because, the shorter list, the fewer the things you have to show appear in the copied work. On the other hand, you can only claim protection over that same small list, so, if those elements aren’t clearly in the second work, you will have a tougher time proving infringement.

Protecting for Nature-Based Works
An artist whose work is based on nature is often left with a neutered protection, but not always.

Consider this. Once upon a time there were two plush toy manufacturers (Coquico v. Identiko, Case No. 07-2786, issued April 6, 2009, First Circuit Court of Appeals). The first, named Coquico, made a stuffed animal that looked like a coqui, a small brown frog popular in Puerto Rico. An artist who worked with Coquico, though, grew unhappy with his job and left. Shortly thereafter, that artist’s new company, Identiko, began to make a stuffed animal that looked like a coqui. Both Coquico and Identiko prided themselves on the anatomical and natural correctness of their dolls, but each added unique elements. Coquico added a recreation of the Puerto Rican flag on the frog’s belly and a brass ring. Coincidentally, when Identiko began selling their frogs, they also had a Puerto Rican flag on their bellies and a brass ring.

                                             
So, how would a court view these dolls? To the naked eye, the frogs appear similar because they both look like actual coqui frogs. But, through the copyright lens, the frogs are similar because they have the same elements that show "artistic and original decision" (i.e. original elements). Coquico can’t protect elements it took from nature, so its original elements are the flag and the ring. So, as the court said in its opinion, since Coquico added these elements first and both frog dolls had them, the ex-employee artist infringed Coquico’s copyright.

Putting This into Practice
While it’s good to know the extent of what you can protect (see Pitfall No. 1), there are steps you can take:

• Carefully think about what could be considered your original elements.
• If you find a similar work that was made before yours, make sure you have additional original elements and think about removing their original elements.
• Keep an eye on people who had access to your works and development processes.

These tips may help you protect your work and avoid infringing someone else’s copyright.