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Sugarland took and used my art without permission or Recognition

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JMPhoto

Junior Member
What is the name of your state (only U.S. law)?
Washington

So I am wondering what course of action i should take against the band Sugarland. I made a piece of artwork which is displayed online when i was 16, sugarland took the photo, used it in their concerts, website, videos...they also changed the color of it in some of their preformances. Isn't that like plagerisim? The art piece has a soft copyright (not through the US copyright office) through the website i posted it. I talked to a lawyer who basically said "i deserve some sort of compensation" I emailed sugarland and am waiting for a response back. I would like to do this without lawyers, but i might have to get one. It should be also known that they have been using it for 2 years in their shows.

So my questions are these: How much should i ask for using my work in over 100 shows, as well as online use? Am I in the right even though it is not copyrighted through the US copyright office? What kind of laws are in place to support me? And.. Would changing an image to their desired color constitute plagerism? If not then what?

My image- Broken Heart by ~Tortured-Raven on deviantART

How they used it- Photo : Sugarland
 
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isis297

Member
I am by no means a senior member. Hell, I come here for advice all the time myself. I just see they haven't gotten a chance to respond yet and wanted to say, I don't think I've ever seen the senior members suggest doing anything without consulting with a local lawyer. You can bet Sugarland is going to have one so to keep things fair, I would think you should have someone representing you as well. Like I said though, I am by no means the one you want to trust for legal advice. That would be Quincy and the other wonderful volunteers they have here when they get a chance to respond. I was just giving my $.02 for what it's worth. I wish you the best. That has to be flattering and frustrating all at the same time to see your artwork get such global use and be seen by so many.
 

quincy

Senior Member
isis is correct that most of us here will recommend that a poster consult with an attorney in their area. The attorney has the ability to personally review all of the facts, which is impossible for us to do in a forum setting such as this. We are limited to a few brief paragraphs of advice based on a few brief paragraphs that outline a problem.

In your case, it can be especially important to have an attorney in your area advise you, if you wish to receive any compensation for Sugarland's use of your artwork. There are several potential complications I see in your described situation.

First, you have only three years from the discovery of the infringement to take action against the infringer. It appears that you are pushing the limit now, if you knew Sugarland was using your "Broken Heart" in their performances two years ago. Once the three year limit has passed, your legal options are limited.

Before you can file any infringement lawsuit, you must register your artwork with the US Copyright Office. It would have been wise for you to do this before you published your work online. Registration creates for an artist a legal presumption of ownership and makes it easier to sue and/or recover damages, or seek compensation from an infringer, when infringement is first discovered.

Your registration at this late date has eliminated for you the possibility of collecting any statutory damages (which allows for awards of $750 to $30,000 per infringement), so you would be limited to collecting actual (or compensatory) damages on demonstrated dollar losses as a result of the infringement and/or to profits made by the infringer as a result of the use of your artwork. Both actual damages and profits may be difficult for you to figure.

In addition, an infringement defense of "independent creation" may be easier to use when an alleged infringed work is unregistered, whether the defense is a legitimate one or not. This defense essentially states that the work in use was not copied as claimed but rather an original creation that just happens to resemble the other work. Because both your copyrighted artwork and the artwork Sugarland has used are identical, or at the very least substantially similar, this is probably not a defense that is viable here, however, which is good.

As to Sugarland changing the color scheme of your "Broken Heart" artwork, a color-change can be considered a derivative of the original. Making derivatives is one of the exclusive rights of a copyright owner and making a derivative without permission from the copyright holder is another form of infringement.

It is possible, I suppose, that Sugarland purchased the rights to use the artwork from someone else who was claiming to be the owner of the work. When copyrighted material is displayed online it makes it easier for someone to pilfer the material and potentially pass it off as their own (students, for example, attempt to do this with written works with some frequency ;)). That is why many artists will display a copyright notice, or ©, on their work, to inform the public the work is copyrighted. Many people who go online do not realize that what they find online is not free to use. They falsely believe that, if it is on the internet, it can be copied and used. This ignorance of the law is not a defense to infringement, but it is certainly the reason many copyrighted works are infringed.

What you will want, and what you apparently deserve, from Sugarland is compensation for their use of your work, and perhaps you will want to give them a license for their continued use of "Broken Heart" or perhaps you may even wish to transfer your rights in the work to them for X amount of dollars. Determining how much their prior use has cost you in dollars and cents or how much Sugarland may have benefitted from the use of your work or how much you want to sell your rights in your work for is something best discussed with your attorney. The attorney can go over all of the facts and figures with you.

I am actually hoping that you have heard back from Sugarland by now and that they have expressed a desire to work with you to negotiate a fair settlement, understanding as artists themselves that they should compensate you fairly for their use of your copyrighted work.

I really like your artwork, by the way, especially "Blood on the Moon." :)

Good luck.

(and thanks for the kind words, isis)
 
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