Protect Your Artwork
As an artist or a photographer, your most valuable assets are
your creations. An artist's work can end up on someone else's
product, marketing piece, or website, without the artist's
permission and without the artist ever earning a royalty. The piece
may even have been modified or there might be no credit disclosing
who created it. Many artists and photographers feel there is not
much they can do to stop that, or just do not know how to protect
themselves. Did you know that $30 and a few minutes of your time
could mean the difference between preventing your creation from
being stolen or standing by helplessly? Or that you cannot file a
lawsuit unless you register the copyright on your work? This
pamphlet will arm you with the knowledge you need to protect your
artwork or photographs, and put to rest some common myths.
Works of art are automatically protected by copyrights.
Copyrights protect the expression of an idea. Ideas may be
expressed in artistic forms such as photographs, songs, poems,
sculptures and paintings. Copyrights give the author or artist the
exclusive right to copy, distribute, publicly perform, and make
derivative works from the protected work. When you sell a piece,
you are selling the tangible parts of it, like the canvas and the
frame, but you are retaining ownership of the image itself. The
purchaser obtains an implied license to use the image for personal
use. Your sale of a painting or a photograph does not give the
purchaser the right to copy, distribute, publicly perform, and make
derivative works of that image. That means that if a third party
purchases your painting and, without your permission, hangs it in a
gallery and charges an admission to view it, they have exceeded
their licensing rights and violated your copyright. Likewise,
derivative works are protected - an important concept for an artist
to understand. It is not acceptable to recreate someone else's work
by simply making some modifications. It is a common misconception
that as long as you change a piece by a certain percentage, it is
not an infringement. Actually, there is no such test. The question
is whether the second creator simply used the idea or concept, or
if he or she began with the original work and then made
modifications to it. The latter is a derivative work.
Copyrights are owned by the creator of the work and not by the
person who commissioned the work. Someone other than the artist can
own a work only if it is under the statutory definition of a "work
made for hire," or if the copyright is assigned in writing. If the
artist is an employee who creates the work in the scope of his
employment, the employer will own the piece. If the artist is not
an employee, then the person who hires the artist will own the work
only if the copyright is assigned to her in writing or if the work
was "a work specially ordered or commissioned for use as a
contribution to a collective work, as part of a motion picture or
other audiovisual work, if the parties expressly agree in a written
instrument signed by them that the work shall be considered a work
made for hire." Photographs, paintings or sculptures that are not
commissioned for use as a contribution to a collective work cannot
be works made for hire but can still be assigned through a written
assignment of the copyright.
Copyrights last for 70 years from the death of the author. If
the work was a work made for hire, its term is 95 years from the
date of publication or 120 years from the date of creation,
whichever expires first. Once the term expires, the work belongs to
the public and can be used by anyone.
There are two important steps to protect your copyrights. The
first is to simply sign your painting or add a copyright notice to
it. A copyright notice should look like this: © 2004 Maria Crimi
Speth. The year should be the year that the work was created. The
name should be the legal name of the owner. This notice puts others
on notice that the work is protected by copyright and is not in the
public domain. The second way to protect your copyright is to
register the copyright with the Library of Congress. The benefits
of copyright registration are that (1) it can be used to prove
ownership; (2) you cannot file your lawsuit until your copyright is
registered; (3) if you register before an infringement, you can
recover your attorney fees if you win a lawsuit; and (4) if you
register before an infringement, you can recover up to $100,000 per
violation without proving actual damages.
Not only is registration beneficial, it is not expensive or
difficult. Log on to the Library of Congress website at
www.loc.gov, click on US Copyright Office, click on Publications,
and click on Forms. While you are in the Publications category, you
might want to read more about copyright protection in the many
publications available online and for downloading. Choose the form
that applies to your type of work. For paintings, photographs, and
sculptures, choose Form VA (with instructions). Follow the
instructions to fill out the form. Send the completed signed form,
two copies of your work (one if it has not been published) and $30
to the address in the right-hand corner of the form.
In approximately eight months, you will receive the copyright
form back from the copyright office stamped as registered. An
often-asked question is whether each piece must be separately
registered. After all, $30 is not so inexpensive if you have
hundreds of images. The copyright office does allow the combined
registration of all photographs created in the same year as long as
the date of publication of each photograph is identified either on
the image or on a cross reference sheet. You can also register a
collection of works, such as a book of photographs, a book of
poems, or a book of sketches. You should be cautious since you can
decrease your level of protection over individual pieces by
including them in a collection. Your prize pieces should be
separately registered and your collections should not be too
large.
Even if you have limited time or financial resources, there are
basic inexpensive steps that you can take to protect your creative
works. If your work is infringed, consult an attorney to determine
whether you can recover damages or stop the infringement. It may be
an old cliché, but an ounce of prevention is worth a pound of
cure!