Self-Help for Thinkers

Violating copyright or trademark law these days, Margaret Millikin says, is often as easy as performing a right-mouse click, paste and copy.

Millikin, a director in the Tulsa office of the Crowe & Dunlevy law firm, practices all phases of intellectual property law, with a particular emphasis on patent and trademark matters. With the vast increase in the presence and influence of the Internet in recent years, she said there's been a sea change in regard to the ease with which intellectual property--including visual art, writing or music--can be appropriated for use without permission.

"It's changed dramatically," she said. "The Internet allows the dissemination of information of all kinds--fine arts, as well. That's made it more difficult to police ... The artists who are involved with the Internet have to be careful about how their works are being used."

To protect themselves and their work, Millikin recommends a basic course of action for artists.

"They should start by making sure their works are registered," she said.

Millikin said she often is contacted by people looking for her help in going through that process, which she says usually can be done online in just a few steps.

"The copyright process is something anybody can do and save themselves several hundred dollars," she said.

When artists register their work in that way, Millikin said, they are providing themselves with legal protection for several decades against their work being used by others without permission. The unauthorized use of such material has become much more common in recent years as too many Web masters incorrectly regard any material they find on the net to be fair game.

Millikin said she had no figures to report in regard to how often such violations occur, but in anecdotal terms, it is not uncommon. In most cases, she said, there is no intentional or malicious effort by a Web site creator to use the material without permission. It's just that many of them fail to understand the material's use is restricted by law.

"Most people are just not aware," she said, adding that most instances are easily resolved. "But if it gets into a situation where they've got some money in it or invested some kind of goodwill in it, we might get into a challenge."

Millikin said under an amendment to the Berne Convention for the Protection of Literary and Artistic Works--an international agreement governing copyright--that was adopted in 1979, artists, writers and others are not required to have their work under formal copyright in order for it to be protected. But she still considers it an advantage to have the work registered.

"If you sue for infringement, you have to register your copyright," she said. "You have to do that to prove infringement, and recover damages and attorneys' fees."

By registering his or her work, Millikin said, an artist also is "also giving public notice of your work, and that creates a public record of it."

Such entities as the National Cowboy and Western Heritage Museum in Oklahoma City and the National Museum of Wildlife Art in Jackson Hole, Wyo., have served as Millikin's clients. She has also done work for a Virginia Commonwealth University professor named Cliff Edwards.

She said she also had another client who had modified a photograph in use with his work, resulting in an interesting mix of trademark and copyright law. Others had appropriated the image, and Millikin's client wished to put a stop to that unauthorized use. Ultimately, she and her client decided the best course of action was to send letters to the parties involved, advising them of their improper use of the image. That solved the problem, she said.

"It was non-malicious," she said of the unauthorized use. "It was just that it was a great photograph. It's rare to see somebody try to capitalize on something like that."

Millikin said, unless it is expressly stipulated otherwise, visual artists retain moral rights to their work--a right of integrity that prohibits the alteration, mutilation or distortion of a work without the permission of the artist, even after the work leaves the possession or ownership of the artist. She cited the case of an artist who had created a social commentary installation featuring an old school bus and tires that was placed in a building in New York. When the building was sold, the new owner tried to remove the installation. The artist challenged that move and ultimately prevailed, Millikin said, when the court decided the removal of the installation would have violated his moral rights to the piece.

Millikin said it's important not to confuse the various types of intellectual property--patents are for inventions, trademarks are for words and symbols, and copyrights are for original works of art or authorship. She often gets questions from people wondering if their project is copyrightable material.

"Two different people can paint a picture of a sunset at the exact same time," she said, and neither would be able to register the event itself as protected material. As for the image each of those people creates, "It's your own expression of an idea, and that's protectable," she said. "So, yes, if it's a creative expression of your idea, go for it."