Copyright

--
COPYRIGHT FAQs
© Claudia Karabaic Sargent 1996
e-mail:cksargent@mindspring.com

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:
(a)the right to reproduce or copy a physical object for intended dissemination to the public.
(b)the right to distribute the reproductions made from the original.
(c)the right to publicly perform (such as a copyrighted piece of music or choreography)
(d)the right to display works.

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.

Who can own a copyright?

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

How does a person get a copyright in something that they have created?

The good news here is that 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.

How does a person lose a copyright in something that they have created?

It used to be the case-- prior to the Copyright Act of 1976-- that you could lose the copyright in your creation if you did not attach proper copyright notice to the creation in question. Since l978 (when the new law went into effect), the only way you can lose copyright in your creations is if you sign it away in writing. Still, it's always best to have proper copyright notice attached to your work as your best defense against infringement. Better still, REGISTER your copyrights with the Copyright Office of the Library of Congress!!

What is proper copyright notice?

Proper notice should read like so:
Copyright, Copr., or © (that's a lower-case letter c in a circle); YOUR NAME HERE; the year date of the creation of the work. So---for a painting I create this year, proper notice would read
© Claudia Karabaic Sargent 1998.

How does a person register a copyright?

You need to fill out a form, and send the form, 1 or 2 copies of the work to be registered (depending on whether the work is published or unpublished), and $20.00 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.html. 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.

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 a *F*R*E*E* Copyright Information Kit in the following ways:

--Mail a request for the Copyright Information Kit to:

The Copyright Office
Information & Publications Section
Library of Congress
Washington, DC 20559

--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 8:30AM - 5PM Eastern Time (not available on weekends or legal holidays); these folks are extremely helpful and knowledgeable.

--You can use the Forms Hotline at 202-707-9100 to request registration forms and information circulars.

These folks are good at their jobs, but it does take some time to fulfill requests--allow 2-3 weeks for delivery of your order.

Are there any advantages to registering a copyright with the Copyright Office?

Y*E*S!!!!! 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.

What are the advantages of registration?

When you register your copyright, you are establishing a public record of your claim to authorship of your creation. If your work is ever infringed upon or copied without your permission, you have the registration certificate as proof of your "presumptive claim of ownership", leaving the burden of proving otherwise to the infringing party.

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.

What are statutory damages? How are they different from other damage awards?

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 THE 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, and someone then infringes on your original work, you will probably end up hiring a lawyer. If you end up in court and you win your case, 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 constitutes infringement?

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

Making photocopies or scanning another person's work without their permission is technically 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.

Is there a legal test for what constitutes infringement?

Yes--if the average person would say that one artwork was copied from another, that is enough: copying need not be exact to constitute infringement. In a copyright lawsuit, the plaintiff (or copyright owner) must prove that the defendant (or copyright infringer) had ACCESS to the work in question, and 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. Avoid this by registering your copyrights!)

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"; 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!) 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.

IMPORTANT: Fair use is a defense one would use if a copyright owner were to sue for infringement for using one of their works without permission. It's a fine point, but worth noting -- Fair Use is not an affirmative position one can take, but rather a defense against a charge of infringement (similar to a self-defense plea in a criminal case).

What about derivative works?

Derivative works require the permission of the author of the original work from which it is derived: that said, if the original work is unrecognizable as the basis of the derivative work, enforcement of the copyright in the original work would be impossible (because there not only has to be ACCESS, but SUBSTANTIAL SIMILARITY, to prove infringement.)

What is "work-for-hire"?

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 a 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 several very narrowly drawn categories (as specified in the Copyright Act of 1976), where the artist has signed a contract specifying that the work being created is a "work for hire" or "a work made for hire."

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). If you ever become a "star" in the art world, you won't be able to benefit financially from earlier work you did as works made for hire; you don't own them anymore. Period.

How does a work become a "work-for-hire"?

In the case of independent contractors (also referred to as 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. Recent court decisions have altered this to some degree-- the waters can now be muddied if the freelancer endorses a payment check from the client with a "work-for-hire" legend on the back; likewise, some megalithic 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, NEVER sign ANYTHING that has the words "work for hire" on it. If your client insists, offer them the alternative of exclusive rights for their particular need. Join the Graphic Artists Guild, which is doing great work trying to eliminate this gross unfairness from the field of graphic arts (http://www.gag.org). As an employee, try to negotiate your rights back from your employer (be sure to do so in writing, or it doesn't count).

What is clip art?

Clip art is artwork that is either (a) already in the public domain (such as antique engravings), or (b)artwork that the artist has signed away all rights, title and interest in. It is available for use by anyone for any purpose without the necessity of obtaining the permission of the artist or the copyright owner; furthermore, the artist has lost all control over how, when, where, how often, and in what form the art may be used.

If an illustrator creates clip art, s/he will only be paid once, no matter how many times and in how many ways that art is used. If a freelance illustrator creates clip art, his/her work (especially if the artist has a discernible style) may flood the market to such a degree that original assignments no longer come in; s/he has destroyed his/her own market by creating a copyright-free glut of their own work. AND THEY CAN'T EVEN PROFIT FROM IT!!! (An illustrator friend of mine, who died 9 years ago, once did a decorative border with pumpkins and haystacks for a clip art publisher, for which he was paid $400; every year at Thanksgiving time, I see that border EVERYWHERE---he never received anything BUT the original fee for the artwork.)

What is stock art?

Stock art is artwork that an artist has already produced (either for prior assignments or as self-generated work) for which s/he is marketing re-use rights to a variety of clients. The artist retains control over the uses to which the art will be put by selling limited rights to individual clients.

For instance, I was commissioned by a magazine publisher to create an illustration of a plate of Christmas cookies for one of their magazines; I sold only North American Serial (or magazine) rights for the specified magazine to that client. I reserved all other rights to myself. That illustration is now one of my stock pieces; I am free to sell rights to a book publisher, a greeting card publisher, a giftwrap manufacturer, a department store's promotion department, an advertising agency, a t-shirt manufacturer, or even another magazine publisher. As long as I am not selling the same exclusive rights to more than one party, I can sell the SAME illustration for ALL of the above uses.

The key is to draft your contracts to reserve as many rights as possible for your own use. In this way, YOU stand to derive the greatest benefit from your talent.

How does an artist sell the rights to existing art as stock art?

Many stock photography agencies have developed stock illustration departments. The artist signs a contract with the agency and places a minimum number of pieces with them; the artist pays a fee for making transparencies and advertising each image in the agency's catalog. Profits from the sale of re-use rights are usually split between the artist & agency, in a proportion determined by the contract between the parties. There are a growing number of stock illustration sources online as well.

Some illustrators create their own stock catalogs, disks, or CD-ROMs and sell directly to clients through mass mailings and other self-promotion techniques.

These Copyright FAQs are by no means an exhaustive exploration of the subject. Here are some other artist-friendly sources of information on copyright:

The Graphic Artists Guild Handbook, Pricing & Ethical Guidelines, 9th Edition; 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

If you haven't yet done so, be sure to drop by the Graphic Artists Guild website at http://www.gag.org. There is a wealth of information there, and a GREAT section on Copyright Law with really good links.

Also on the web, the Copyright Office, at http://lcweb.loc.gov/copyright/; you can download forms at http://lcweb.loc.gov/copyright/forms.html.

Back to the Library directory.