Copyright Basics for Licensing Artists

Hello and Happy 2016! I hope you had a great holiday season and are ready to gear up for another year of successful art-making! My lovely agent, Jennifer Nelson, asked if I could post a little something about registering your copyright (in this case, with the US Copyright Office). I know, I know...the art-making process is so much more fun than thinking about legal stuff! Hopefully the information below will give you a basic understanding so it's not so scary.

Let me state that I am a working artist and college instructor, but in no way am I actually a lawyer or legal professional, so please do your own research and seek out real legal advice if needed. Copyright law can change and if you are in another country besides the United States, you definitely should read up on what your country requires for proper registration.

Let's begin! Below is the same information I share with my undergraduate students (with some extra parts to help explain it more towards licensing).

COPYRIGHT BASICS

Even though you immediately have the copyright for a work after its creation, registering your copyright with the US Copyright Office is a way to properly document it. This not only makes it easier to enforce if needed, but in some cases you can get court costs and damages from infringement. You can still defend your copyright if it’s not registered with the government (it just may be harder or more costly).

www.copyright.gov

  •  To register a copyright, it is $35 for a single piece and $55 for a collection. You can easily do this online by uploading common file types of your work such as jpegs or a pdf and filling out the forms needed online. The  website www.copyright.gov offers a handy tutorial to walk you through the process.

  •  A collection can be pretty broad, depending on how you label it.  For instance “Jane Doe paintings 2005-2010” would be acceptable. “Jane Doe portfolio 2014” would work as well.

  • Unpublished work must always be registered separately from Published work. Published work as a collection has to all be within the same calendar year, whereas Unpublished collections have no restrictions when it comes to the dates individual pieces were created. Right before Surtex I have a bunch of new work that has not been licensed or commercially used, so this year I will register one big collection of unpublished work as "Lauren Lowen Surtex Portfolio 2016". If I find an older piece from 2014 that I want to include, I can do so because it's an Unpublished collection. (Depending on what you do, you may find the need to divide significantly different work or research the needs of your individual field). However, Published collections have to be by project, meaning a series of illustrations for a children’s book or a series of editorial images that appeared in a magazine. Unrelated Published work cannot be grouped together in one collection like unpublished work can. So simply saying “Jane Doe Commercial Work 2016” and throwing in ALL your Published art usually doesn’t work.

  •  Most artists use FORM VA (Visual Arts Work). There are separate forms for other creative works such as sound/music and literary works.

  •  Names, titles, short phrases, and slogans are not copyrightable.  You would trademark these instead at the U.S. Patent & Trademark Office.

  •  Even though the registration process can take weeks or even months, your copyright will take effect from the moment you submit it, so you will not be unprotected during the processing time (as of right now, they estimate an 8 month wait time for e-filing). 

  •  Some clients may request that you register your copyright in a contract. Remember that if an outside third party infringes on your copyright, a client will most likely not defend it. After all, since the copyright is yours, YOU are the one with the legal right and responsibility to defend it in a court of law. However, most clients are willing to aid (within reason) towards your case by providing any proof they can to back up your claim.

  •  You can watermark images and such, but the truth is you are always taking a risk when displaying your work in public. People can trace your low-res images in computer programs, remove watermarks with software, or just straight out copy it by their own means. Learn which online environments are hotbeds for foreign factories and individuals to steal art, such as some print on demand sites, and remember these platforms have no legal responsibility to aid you if someone does lift your work or idea from their website/venue. 

FROM THE WWW.COPYRIGHT.GOV WEBSITE:

 Why should I register my work if copyright protection is automatic?

Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney's fees in successful litigation. Finally, if registration occurs within 5 years of publication, it is considered prima facie evidence in a court of law.

 I’ve heard about a “poor man’s copyright.” What is it?

The practice of sending a copy of your own work to yourself is sometimes called a “poor man’s copyright.” There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration.

 Is my copyright good in other countries?

The United States has copyright relations with most countries throughout the world, and as a result of these agreements, we honor each other's citizens' copyrights. However, the United States does not have such copyright relationships with every country. For a listing of countries and the nature of their copyright relations with the United States, see Circular 38a, International Copyright Relations of the United States

 How long does a copyright last?

The term of copyright for a particular work depends on several factors, including whether it has been published, and, if so, the date of first publication. As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. For an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first. For works first published prior to 1978, the term will vary depending on several factors. To determine the length of copyright protection for a particular work, consult chapter 3 of the Copyright Act (title 17 of the United States Code). More information on the term of copyright can be found in Circular 15a, Duration of Copyright, and Circular 1, Copyright Basics.

 Do I have to renew my copyright?

No. Works created on or after January 1, 1978, are not subject to renewal registration. As to works published or registered prior to January 1, 1978, renewal registration is optional after 28 years but does provide certain legal advantages. For information on how to file a renewal application as well as the legal benefit for doing so, see Circular 15, Renewal of Copyright, and Circular 15a, Duration of Copyright.

ADDITIONAL NOTES

Artwork copyrighted as “Unpublished” automatically “moves over” if that piece becomes licensed or published in the future. So if you register an illustration in your unpublished collection but a card company picks it up three months later, don’t worry! You don’t need to register it again. You’re good to go and the original copyright registration is valid.

 Some licensing artists or those who do personal work register all new pieces as a single $55 collection every quarter. It may be daunting to have that expense, but you just have to budget for those things like you would business cards or website hosting costs. Four Unpublished Collections done quarterly throughout the year would total $220, which isn’t that bad. (Plus, don’t forget it’s a business deductible on your taxes!) Depending how fast you produce work, you may not need to do it so frequently.

 The US Copyright office defines “Published” as the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication. The category of “Published” isn’t limited to printed materials anymore. The Internet can be a bit of a gray area. After reading countless articles, listening to legal podcasts, and even having lawyers talk to my students about copyright, the only one thing that is true is this: no one 100% agrees how some of these modern digital formats relate to our current copyright laws. Each legal professional and court system has their own interpretations of this “gray area”, and sometimes it can only be figured out on a case-by-case basis depending on the unique circumstances of that instance.

 It’s true that registering every single commissioned Published project as they come along can seem overwhelming (and potentially very expensive). When registering Published work , I consider how likely it is someone will steal it for profit. For instance, an illustration of a kid flossing their teeth made for a children’s magazine will probably not attract many thieves, so I’m likely OK if I don’t register it.

See if your local area offers any legal assistance for questions you may have. Here in Nashville we have the Volunteer Lawyers & Professional for the Arts (VLPA). Local lawyers, accounts, and other professionals volunteer their time and expertise to help local creatives with issues like these for no or little cost depending on the issue. You might also have an Arts & Business Council nearby that can offer advice and guidance with your art-specific questions.

I hope this helps! I know you probably have many questions in your head, but I promise that www.copyright.gov has a lot of helpful and handy materials to help you along the way. And if you search the web about the subject, remember to check the date of any articles written to ensure up-to-date information (for instance, the cost of registering went up recently, so some older articles may have that listed wrong, etc).

Good luck and take care! And by all means, if you have information that contradicts anything posted here, please feel free to mention it in the comments. The only way to help others is by us sharing information & resources to ensure the best protection for all!