Protecting Your Copyrights

Emily DanchukAttorney Emily Danchuk works with artists to protect against theft of their intellectual property. ABI spoke with her about copyright protection.

ABI:  How prevalent is the theft of artist’s copyrighted work today?

ED:  I believe it’s extremely prevalent, but it’s hard to determine just how often it happens without talking to individual artists directly.  Shockingly, a lot of artists just don’t want to discuss their experiences, and just consider infringement as a cost of doing business in the industry.

But I believe that many large companies’ business models incorporate – whether subtly or not- intellectual property theft.  And small store owners on Etsy and similar websites are following this ever-increasing trend.  In short, it’s become a practice across the board by small hobbyists and large conglomerate companies.

Without artists using their voices to deem this practice as unacceptable, I’m afraid the problem will continue to grow and will become an acceptable method of “new” product development.


ABI:  Many artists feel helpless when they realize they have been ripped off. What advice would you have for them?

ED:  Be proactive, understand the value of your designs and works, and use your voice to decry infringement.  Usually, artists use lawyers to address the problem, but a lot of attorneys are out to simply make their billable hours and are unable to express the outraged feelings of the artists themselves.

Artists need to learn to use their own voices and understand fully the damage this theft does to their businesses and passion as artisans and skilled individuals.


ABI:  Is pursuing a legal remedy to copyright violation something that individual artists can do? How would they do this?

ED:  The best way to handle infringement is to register your works with the Copyright Office before infringement starts.  When an artist obtains a copyright registration proactively and before infringement begins, they are entitled to statutory damages, and the leverage that these damages can provide is almost immeasurable.

Learning to be proactive and to gain an understanding of intellectual property is truly the best weapon against intellectual property theft.  Once infringement occurs, an artist should send a cease and desist letter with their copyright registration to the infringer.  Most of the larger companies who infringe have insurance that will cover the costs of the infringement, so artists shouldn’t be shy about pursuing damages.


ABI: What is your plan to help artists join together to fight this type of violation?

ED: I’m presently working on Copyright Collaborative, a new business aimed at condemning infringement.  While Copyright Collaborative will, on one hand, act as an educational and management tool for artists for their intellectual property rights, its overall mission is to unionize artists to fight against the casual practice of intellectual property infringement and theft.

Copyright Collaborative will ideally use the voices of the artists-through petition letters and awareness campaigns-to denounce the practice of intellectual property theft.


Copyright Collaborative will be coming soon with a website for artists. Want to get more information? Visit their Facebook Page.


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  1. How do you (or can you) copyright jewelry designs. Most jewelry artists, especially in silversmithing, have similar design concepts (i.e. flowers, hearts, etc.) with variations. How do you protect your designs?

  2. Emily Danchuk says:

    Courts have held that so long as the design -whether jewelry or otherwise-contains some minimum degree of creativity, the design will be protected under Copyright Laws. As long as you’re not trying to protect the IDEA of depicting something in nature, but the actual design itself, it should be protectible.

    I was involved in litigation over the theft of a client’s bird’s nest jewelry pendant and the opposing side argued that the depiction of a bird’s nest was not protected. The court stated, “Significantly, the Plaintiff claims it is not seeking a monopoly over the idea of bird’s nest jewelry. There are other variations of bird’s nest jewelry sold by others, but the Plaintiff is only claiming infringement on the Defendant’s allegedly identical pendant. (Pl.’s Br. in Opp’n to Def.’s Mot. to Dismiss, at 14). To be sure, the Plaintiff’s creation strikes one as a generic bird’s nest. But in nature, birds’ nests can be deeper, wider, or narrower. Birds may arrange them neatly out of twigs and straw, or they may create less symmetrical forms that even incorporate human trash. Birds may lay eggs in the nest that have the same color, vary in color, or bear spotted patterns. And the number of eggs laid varies with the type of bird. In short, paraphrasing an oft-quoted expression, God gives every bird his worm, but it is up to the bird to make his nest. The Plaintiff’s bird’s nest is wide and shallow. Twigs are incorporated into the nest, but not smoothly throughout. Instead, they run more like veins across the inside bowl that highlight the eggs. This layout of the twigs may be rather obvious, but it is also somewhat unnatural. Atop the twigs are three eggs in nest-two that are off-white and one that is more lavender. Although the degree of inspiration is slight, it meets the originality threshold. Todd v. Montana Silversmiths, Inc.,379 F.Supp.2d 1110, 1112 (D.Col. 2005) (“No matter how poor artistically the author’s addition, it is enough if it be his own.”) The nature of the work distinguishes it from the cases relied upon by the Defendant. In Todd, the barbed-wire jewelry was not original because it was not recast or arranged in an original way but instead stuck with the “elemental arrangement” of barbed wire. Id., 379 F.Supp.2d at 1113. Here, the Plaintiff arranged the nest in the slightly atypical way described above. Further, in Herbert Rosenthal Jewelry Corp. v. Honora Jewelry Co., Inc.,509 F.2d 64, 65-66 (2d Cir.1974), the Second Circuit found no originality in a bejeweled-backed turtle in part because there are only a certain number of vertebrae segments on a turtle. Id. There are no such natural limitations here—a natural nest could have any number of eggs depending on the species. Furthermore, the cases are mixed on the copyrightability of minor variations from nature. One commentator argues that “a very modest quantum of originality will suffice. Thus, relatively simple butterfly and vegetable designs have been held protectible.” 1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT, § 2.08, at 6 (2008) (citing Fabrex Corp. v. Scarves by Vera, Inc., 129 U.S.P.Q. 392 (S.D.N.Y.1961)). Similarly, generic jewelry in the shape of wavy vines has been protected. Paul Morelli Design, Inc. v. Merit Diamond Corp., 2003 WL 22300163 (E.D.Pa.2003). And a court protected the copyright of flower brooches made of beads and wire shaped into petals, leaves, and a stem. M. Lady, LLC v. AJI, Inc., 2007 WL 2728711 (S.D.N.Y.2007). Thus, the Plaintiff’s original expression of a bird’s nest is copyrightable.

    I hope that this is helpful-I’d be more than happy to talk on the phone if you’d like! You can reach me at 917.400.1663.


  3. How do you go about Copywriting a large body of work? Paying per image is expensive.

    • Liz,

      So sorry for the delay in a response-I just saw your post the other day. In order to copyright bodies of work, you can file as collections. So long as the collections (reasonably sized, such as 20 works) are created in the same year and first shown to the public on the same date, they can all go into the same collection. If you have any questions, please feel free to call me-917.400.1663.

  4. This seems so out of control. Fortunately, we can still see beautiful art and I hope to see many more examples. Thanks for informing us about this.

  5. What happens if you find a piece of art on a free download site that has been previously ripped off and altered somewhat. The artwork has the rip offs name on it and he has not copyrighted it. You use the artwork because the rip off artists says it is free. Can you be held liable for using the art because the original pre rip off artwork was copyrighted?

    • Well, usually in this type of situation, you can limit your copyright infringement liability with the “innocent infringer” defense, where you honestly didn’t know that it was copyright infringement. In that case, the copyright owner’s damages owing from you can be no less than $200.

      The Copyright Act: “In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.”

      However, now that you know that the work is owned by someone else, you definitely should remove the work or get permission to use it. Otherwise, you can be liable for damages, including any profits by you from the use, and any losses by the owner of the original artwork.

      • Is it true that artists does not have to post a copyright on the artwork?

        The owner of the copyrighted work is asking me to settle by sending him a check for $3500 when my profit on the whole job was less than $200 and I had no way of know this was even his copyrighted work. This seems extremely high.

        Any recommendations?

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