© Claudia Karabaic Sargent 2000, 2002

 
General Questions About Copyright

 
What is copyright?

Copyright is a “bundle of rights”, infinitely divisible, where each separate right of reproduction (or usage) can be transferred individually or collectively by the copyright owner to another individual or entity.

The rights of copyright include:

    -the right to reproduce or copy a physical object for intended dissemination to the public

    -the right to distribute the reproductions made from the original

    -the right to create derivative works based on the original work

    -the right to publicly display works

    -the right to publicly perform works (such as a copyrighted piece of music or choreography).

 
What is the purpose of copyright?
According to the US Constitution, Article 1, Section 8, the purpose of copyright is “to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”.

What is copyrightable?
Any original expression of an idea fixed in a tangible form is copyrightable. Ideas themselves are not copyrightable, unless they are put into a fixed and tangible form.
 

Yes, they are. Here’s what the statute itself has to say:

What that means is, when you sell or license your rights of copyright and deliver a “material object” to your client (i.e., original artwork, a transparency of the artwork, or a scan or digital file on a disk), that material object is not part of the sale. Ownership of the “material object” remains with the artist, unless there is an agreement in place between you and your client that transfers ownership of the material object to your client or a third party. Conversely, if you sell an original artwork, no rights of copyright are transferred to the purchaser of the material object (the artwork), unless there is an agreement specifically granting those rights of copyright-- which may be subdivided in any way that makes sense to you and the artwork’s purchaser. Also, if you sell a copy of an original (i.e., fine art prints of one of your artworks), you are only selling the physical copy -- no rights of copyright are transferred along with the material object (in this instance, the fine art print).

 
Who can own a copyright?

Any individual or entity (such as a corporation) can own a copyright.

 
What is proper copyright notice?

Proper notice should read like so:

Copyright, Copr., or © (YOUR NAME HERE)(the year date of the creation of the work).

So-- for a painting, poem, or song I create this year, proper notice would read

© Claudia Karabaic Sargent 2002

 
How long does copyright last?

You automatically own the copyright of anything original that you have ever created in a fixed form. If you have painted a picture, written a poem, song, or story, composed music, created the choreography for a dance-- you already own the copyright to that creation.

There are many misconceptions about copyright-- People often ask me how they “get” a copyright, or whether mailing their art to themselves is as good as registering their work with the government. Copyright is a complex subject, but there are basically only 3 things you really need to know about it.

BUT-- this is the most important thing--

 

When you register your copyright with the Copyright Office, you are availing yourself of one of the cheapest insurance policies available for protecting your intellectual property. If your copyright is ever infringed upon, you must have registered your copyright before you can file a lawsuit against the infringer.

By registering your copyright prior to publication or within 90 days of the first publication of your work, you are establishing a public record of your claim to authorship of your creation. Your registration certificate is proof of your “presumptive claim of ownership”, leaving the burden of proving otherwise to the infringing party. You must register within 90 days of publication of your work, or at any time prior to the first infringement, to be entitled to the full range of remedies available under the law.

Additional benefits to registering prior to infringement are the ability to win statutory damages and the awarding of attorney’s fees in any copyright lawsuit you would bring against an infringer.

 
How does a person register a copyright?

You need to fill out a form, and send the form, 2 copies of a published work to be registered (only 1 complete copy is needed for an unpublished work), and $30.00 to The Register of Copyrights at the Library of Congress. You can download the forms you need online at http://lcweb.loc.gov/copyright/forms/

It is a good idea to familiarize yourself with the different forms beforehand-- there are a number of different forms for different kinds of art and text needs, and it’s important to use the correct one. For the most part, graphic artists will be using Forms VA and GR/CP to register their works.

 
Do I have to register each work individually, at $30 each?

NO! There are a couple of ways to accomplish group registration.

You can register groups of unpublished work all together as a collection, for the same fee. Use Form VA, and fill it out as you would for a single unpublished piece, except in Space 1 (Title) you give the title of the collection of works you are registering (i.e., The Collected Works of  I.M.A. Artist, Volume 1, 1998-2000) and in Space 3(a), give the year date of the most recently completed piece in the collection.

If you are registering all of the illustrations you created for a published book, or a suite of prints that were published at the same time, the book or suite of prints can be registered as a single work.

If you are registering published work that you’ve done for periodicals over a 12 month period, you can register them all together using Form GR/CP in conjunction with Form VA, for the same $30 fee.

 
When is my work considered registered?

Your work is registered as of the date that your full deposit (properly filled-out form, check, and copies of the work) is received by the Copyright Office. Since it can take as long as 6-8 months to get your Certificate from the Copyright Office, it’s best to send your deposit via a trackable method of delivery that provides proof of receipt. Use a courier service that provides you with a dated proof of delivery.

 
How can a person learn about the different forms and the other requirements for copyright registration?

I’m happy to say that this is one government office that really works for the benefit of the people! You can obtain excellent copyright information from knowledgeable professionals in the following ways:

1) Visit the website at http://lcweb.loc.gov/copyrightto read about copyright, and to download forms & information circulars in .pdf format.

2) Mail a request for the free Copyright Information Kit to:

    The Copyright Office

It can take some time to fulfill requests--allow 2-3 weeks for delivery of your order.

3) Call the Public Information Office at 202-707-3000; taped info is available 24 hours a day, 7 days a week. To talk to an information specialist, call weekdays from 8:30 AM - 5 PM Eastern Time (not available on weekends or legal holidays), and follow the phone tree instructions.

4) Use the Forms Hotline at 202-707-9100 to request registration forms and information circulars.

5) Use the Library of Congress “Fax on Demand” service at 202-707-2600 if you know what forms you’ll need.

A “work-for-hire” is a work in which the creator of the work has contractually signed away his/her rights, and thus no longer enjoys any of the rights of authorship, including copyright.

There are two ways in which an original creative work can become a “work-for-hire”.

(1) An employee creating a copyrightable work within the scope of his/her employment is creating a work made for hire, in which his/her employer will be the author of record (unless the employee has a contract which specifically states otherwise).
(2) An independent contractor creating a specially commissioned copyrightable work in one of nine specific categories (as specified in the Copyright Act of 1976), where the artist has signed a written contract specifying that the work being created is a “work for hire” or “a work made for hire.”

 
What kinds of work can be “works-for-hire”?

Work that you create for yourself (i.e., that wasn’t specially commissioned by a client) CANNOT be a work-for-hire.

There are 9 categories of work that can be specially commissioned as works-for hire. If the work in question doesn’t fit any of the categories, then it can’t be a work-for-hire. If you have any doubt, check with the Copyright Office, or talk to someone knowledgeable about copyright.

The work must fall within one of these categories:

    A contribution to a collective work, such as a magazine, newspaper, encyclopedia, or anthology

    A contribution used as part of a motion picture or other audiovisual work

    A translation

    A compilation, which is a work formed by collecting and assembling pre-existing materials or data

    An instructional text

    A test

    Answer material for a test

    An atlas

    A supplementary work, defined as a work used to supplement a work by another author for such purposes as illustrating, explaining, or assisting generally in the use of the author’s work. Examples of supplementary works are forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, appendixes, and indexes.

 
What are the disadvantages to the artist of “work for hire” contracts?

When an artist signs a work-for-hire contract, the artist is renouncing all authorship rights that s/he once enjoyed as the creator of an original work of art. By signing a work-for-hire contract, you are saying that the other party is the author of the work; that they own the copyright; that they can use it, change it, make other works out of it, do whatever they want with your creation, because you are no longer the creator. In signing a work-for-hire contract, you become an employee for copyright purposes only; it doesn’t mean that you are entitled to any employees’ benefits from the commissioning party; you’re still going to have to pay ALL the income taxes (and self-employment tax) on the money you earned; AND you may not even retain the right to display the work in your portfolio. (Remember, you’re not the author any more. You signed away ALL your rights of copyright-- one of which was, to display the work.)

In the later years of your successful career, you won’t be able to benefit financially from the earlier work you did as works made for hire; you don’t own them anymore. And there is no way to get them back, period.

 
How does a work become a “work-for-hire”?

In the case of independent contractors (or freelancers), the statute as written makes clear that there must be a written agreement between the parties that states that the work in question is a work made for hire, and that this contract must be signed by both parties prior to the commencement of the work in question. More and more media corporations are attempting to tie up their freelance talents’ PAST AND FUTURE contributions by having them sign blanket contracts that deem as “works made for hire” not only the current project, but all past and future work that that client may have previously or may, at some indeterminate future date, assign to the freelancer.

The reverse is true with employees (as “employee” is defined legally--a person who works for a salary, with benefits, a set place of work, and a schedule and working conditions that are controlled by the employer). Everything an employee creates for his/her employer within the scope of his/her regular employment is a work made for hire, unless the employee has a contract with the employer that reverts the rights of authorship back to the employee.

 
How can an artist avoid the work-for-hire trap?

As a freelancer, you should try to avoid signing contracts that use the words “work for hire”, or any similar language. If your client insists, offer them the alternative of exclusive rights for their particular need.

Even an “all-rights” agreement would be preferable to a “work-for-hire” agreement, because after a period of time, you will have the option of terminating the rights transfer and reverting the rights back to yourself.

If you are an employee,you can try to negotiate rights back from your employer; if you do so, be sure to do so in writing, or it doesn’t count.

 
What’s the main difference between a “work-for hire” agreement and an “all-rights” agreement?

You can never terminate a work-for-hire agreement; once you sign one, the authorship and the ownership of the copyright in the work you created is transferred to the client for the entire term of copyright-- for “works-for-hire”, that term is 95 years from first publication or 120 years from the year date of creation, whichever term is shorter. After that term, the works pass into the public domain, where everyone is free to use them.

An all-rights agreement (or any exclusive grant of rights that isn’t limited as to the length of the term) can be terminated by the copyright owner at any point during a 5 year period that starts no sooner than 35 years after the grant of rights has been executed (i.e., the work’s been done and paid for by the client, and published, if it was for publication). What this means is that you and your heirs can still benefit financially from your works, even if you’ve granted “all rights” to the works in question. There is a specific method for terminating these grants of rights that must be adhered to; be sure to refer back to the Copyright Office for specific instructions when the time comes.

 
What constitutes infringement?

Strictly speaking, infringement is the unauthorized use of the copyrighted works of another party without their permission.

Making photocopies or scanning another person’s work without their permission is an infringement; if you make your own art using art, photographs, text, music, etc., that was created by someone else WITHOUT the copyright owner’s express permission (and where the work being used by you is not in the public domain), you are infringing on the copyright owner’s copyright.

 
What do I do if someone infringes my copyright?

First thing to do is REGISTER, if you haven’t already done so. As long as you have registered your copyright PRIOR to the date of the infringement (the date it occurred, not the date you discovered it), you can avail yourself of the full range of legal options. Then, contact a lawyer. Guild members have access to referrals with lawyers who are experienced in copyright issues. If your means are limited, contact your state chapter of Volunteer Lawyers for the Arts; they provide free legal help for artists who fall within their income guidelines.

If your work was registered prior to infringement, a lawyer’s letter may be all that’s needed to address the problem.

 
Is there a legal test for what constitutes infringement?

Yes-- if the average person would say that one artwork was copied from another, that’s sufficient: copying need not be exact to constitute infringement.

In a copyright lawsuit, the plaintiff (or copyright owner) must prove two things: first, that the defendant (or copyright infringer) had ACCESS to the work in question, and second, that the two works are SUBSTANTIALLY SIMILAR in the eyes of the average person.

(Note: Very often, in the case of a work that wasn’t registered before infringement, the defendant will concede liability--in other words saying, “Yeah, I copied it, so what?”--thus moving the trial into the “damages” stage. This is where the difference between statutory and actual damages comes into play, and where the tactical advantage often goes to the defendant. Remember, without being able to rely on the statute, the burden of proving actual damages now rests upon the plaintiff. You can avoid this by registering your copyrights.)

Statutory damages are the damages that the Copyright Law itself specifies should be awarded to copyright owners whose works are infringed; statutory damages can be awarded in amounts up to $100,000 per infringement.

The difference between statutory damages and actual damages (the kind you get if you didn’t register prior to infringement) is that you must prove your actual damages in that portion of your lawsuit. This means that you, as the injured party, must find some way of proving the monetary value of the losses you suffered due to the infringement of your work. You have to hire the accountants to go through the infringers’ books; you have to find some way of proving how much money you would have made if you had used your work in the same manner as the infringer.Even with a cooperative defendant, this is time-consuming and expensive.

When you are entitled to statutory damages, the judge awards the damages to you according to what the law allows. Very often, an infringer will settle out-of-court to avoid a trial when faced with this alternative.

 
And what about the attorneys’ fees?

When you have registered your copyright, and someone infringes upon your copyright in your original work, you will probably need to hire a lawyer to handle your case. If you sue and you win, the judge will award you your reasonable attorneys’ fees as part of your judgment. This scenario is often a powerful enough stimulant to the defendant to settle out-of-court, as the amount of the award of attorneys’ fees is at the judge’s discretion and can be very, very expensive to the defendant.

Another reason to register is that if you don’t, then the judge CANNOT award attorney’s fees--the law does not give him that option; you pay your lawyer out of your actual damages award (and the attorneys’ fees can total more than the amount you win in court).

 
What is “fair use”?

Fair use is a narrow exception to a copyright owner’s ability to exclusively control the uses of the work in question; in general, fair use includes the use of the work in news reporting, teaching, scholarship, or research. For instance, use of an artist’s copyrighted painting to illustrate an article about the artist would be considered “fair use”; but, making copies of that article to distribute to your class without the permission of the publisher of the article might not be a fair use--better to ask permission from the copyright owner of the article.

The criteria in the courts use in evaluating whether a specific instance is “fair use” or not include:

    (a)the purpose and character of the use

    (b)the nature of the copyrighted work

    (c) the amount and substantiality of the portion of the work used, relative to the copyrighted work as a whole

    (d)the effect of the use in question on the potential market value of the copyrighted work.

distributed by North Light Books

Legal Guide for the Visual Artist, by Tad Crawford; published by Allworth Press

Licensing Art & Design, by Caryn R. Leland; published by Allworth Press

  Painters, Sculptors, Photographers, Graphic Artists,

    published by Volunteer Lawyers for the Arts, NY NY 10022

 

If you haven’t yet done so, be sure to drop by the Graphic Artists Guild website at http://www.gag.org

Also on the web, the Copyright Office, at http://lcweb.loc.gov/copyright/

You can download forms at http://lcweb.loc.gov/copyright/forms/

E-mail me