How to Copyright
Ever had the unpleasant surprise of finding someone copying your art without your permission? Artist’s & Graphic Designer’s Market contributor Lori McNee was justifiably angry when she discovered an artist copying her work and selling it on Facebook. Fortunately, she was able to get his page shut down (at least for now). While it can be challenging to pursue legal action against a copycat artist (especially if he is not in the U.S.), there are steps you can take to protect the copyright on all of your art. Continue reading below for our complete guide on how to copyright, including how to register a copyright and how to deal with plagiarists.
Keep creating and good luck!
As creator of your artwork, you have certain inherent rights over your work and can control how each one of your works is used until you sell your rights to someone else. The legal term for these rights is called copyright. Technically, any original artwork you produce is automatically copyrighted as soon as you put it in tangible form.
To be automatically copyrighted, your artwork must fall within these guidelines:
• It must be your original creation. It cannot be a copy of somebody else’s work.
• It must be “pictorial, graphic, or sculptural.” Utilitarian objects, such as lamps or toasters, are not covered, although you can copyright an illustration featured on a lamp or toaster.
• It must be fixed in “any tangible medium, now known or later developed.” Your work, or at least a representation of a planned work, must be created in or on a medium you can see or touch, such as paper, canvas, clay, a sketch pad, or even a website. It can’t just be an idea in your head. An idea cannot be copyrighted.
Copyright Lasts for Your Lifetime Plus Seventy Years
Copyright is exclusive. When you create a work, the rights automatically belong to you and nobody else but you until those rights are sold to someone else.
Works of art created on or after January 1978 are protected for your lifetime plus seventy years.
The Artist’s Bundle of Rights
One of the most important things you need to know about copyright is that it is not just a singular right. It is a bundle of rights you enjoy as creator of your artwork:
• Reproduction right. You have the right to make copies of the original work.
• Modification right. You have the right to create derivative works based on the original work.
• Distribution rights. You have the right to sell, rent, or lease copies of your work.
• Public performance right. You have the right to play, recite, or otherwise perform a work. (This right is more applicable to written or musical art forms than to visual art.)
• Public display right. You have the right to display your work in a public place. This bundle of rights can be divided up in a number of ways so that you can sell all or part of any of those exclusive rights to one or more parties. The system of selling parts of your copyright bundle is sometimes referred to as divisible copyright. Just as a land owner can divide up his property and sell it to many different people, the artist can divide up his rights to an artwork and sell portions of those rights to different buyers.
Divisible Copyright: Divide and Conquer
Why is divisible copyright so important? Because dividing up your bundle and selling parts of it to different buyers will help you get the most payment for each of your artworks. For any one of your artworks, you can sell your entire bundle of rights at one time (not advisable!) or divide each bundle pertaining to that work into smaller portions and make more money as a result. You can grant one party the right to use your work on a greeting card and sell another party the right to print that same work on T-shirts.
Divisible Copyright Terms
Clients tend to use legal jargon to specify the rights they want to buy. The terms below are commonly used in contracts to indicate portions of your bundle of rights. Some terms are vague or general, such as “all rights.” Other terms are more specific, such as “first North American rights.” Make sure you know what each term means before signing a contract.
• One-time rights. Your client buys the right to use or publish your artwork or illustration on a one-time basis. One fee is paid for one use. Most magazine and book cover assignments fall under this category.
• First rights. This is almost the same as one-time rights, except that the buyer is also paying for the privilege of being the first to use your image. He may use it only once unless the other rights are negotiated. Sometimes first rights can be further broken down geographically. The buyer might ask to buy first North American rights, meaning he would have the right to be the first to publish the work in North America.
• Exclusive rights. This guarantees the buyer’s exclusive right to use the artwork in his particular market or for a particular product. Exclusive rights are frequently negotiated by greeting card and gift companies. One company might purchase the exclusive right to use your work as a greeting card, leaving you free to sell the exclusive rights to produce the image on a mug to another company.
• Promotional rights. These rights allow a publisher to use an artwork for promotion of a publication in which the artwork appears. For example, if The New Yorker bought promotional rights to your cartoon, they could also use it in a direct mail promotion.
• Electronic rights. These rights allow a buyer to place your work on electronic media such as websites. Often these rights are requested with print rights.
• Work for hire. Under the Copyright Act of 1976, section 101, a “work for hire” is defined as “(1) a work prepared by an employee within the scope of his or her employment; or (2) 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.” When the agreement is “work for hire,” you surrender all rights to the image and can never resell that particular image again. If you agree to the terms, make sure the money you receive makes it well worth the arrangement.
• All rights. Again, be aware that this phrase means you will relinquish your entire copyright to a specific artwork. Before agreeing to the terms, make sure this is an arrangement you can live with. At the very least, arrange for the contract to expire after a specified date. Terms for all rights—including time period for usage and compensation—should be confirmed in a written agreement with the client.
Since legally your artwork is your property, when you create an illustration for a magazine you are, in effect, temporarily “leasing” your work to the client for publication.
Chances are you’ll never hear an art director ask to lease or license your illustration, and he may not even realize he is leasing, not buying, your work. But most art directors know that once the magazine is published, the art director has no further claims to your work, and the rights revert back to you. If the art director wants to use your work a second or third time, he must ask permission and negotiate with you to determine any additional fees you want to charge. You are free to take that same artwork and sell it to another buyer.
What Licensing Agents Know
The practice of leasing parts or groups of an artist’s bundle of rights is often referred to as licensing, because (legally) the artist is granting someone a “license” to use his work for a limited time for a specific reason. As licensing agents have come to realize, it is the exclusivity of the rights and the ability to divide and sell them that make them valuable. Knowing exactly what rights you own, which you can sell, and in what combinations, will help you negotiate with your clients.
Don’t Sell Conflicting Rights to Different Clients
You also have to make sure the rights you sell to one client don’t conflict with any of the rights sold to other clients. For example, you can’t sell the exclusive right to use your image on greeting cards to two separate greeting card companies. You can sell the exclusive greeting card rights to one card company and the exclusive rights to use your artwork on mugs to a separate gift company. You should always get such agreements in writing and let both companies know your work will appear on other products.
When to Use the Copyright © and Credit Lines
A copyright notice consists of the word “Copyright” or its symbol ©, the year the work was created or first published, and the full name of the copyright owner. It should be placed where it can easily be seen, on the front or back of an illustration or artwork. It’s also common to print your copyright notice on the back of reproductions or photographs of your artwork.
Under today’s laws, placing the copyright symbol on your work isn’t absolutely necessary to claim copyright infringement and take a plagiarist to court if he steals your work. If you browse through magazines, you will often see the illustrator’s name in small print near the illustration, without the Copyright ©. This is common practice in the magazine industry. Even though the © is not printed, the illustrator still owns the copyright unless the magazine purchased all rights to the work. Just make sure the art director gives you a credit line near the illustration.
Usually you will not see the artist’s name or credit line next to advertisements for products. Advertising agencies often purchase all rights to the work for a specified time. They usually pay the artist generously for this privilege and spell out the terms clearly in the artist’s contract.
How to Register a Copyright
The process of registering your work is simple. Visit the United States Copyright Office website at www.copyright.gov to file electronically. You can still register with paper forms, but this method requires a higher filing fee. To request paper forms, call (202)707-9100 or write to the Library of Congress, Copyright Office-COPUBS, 101 Independence Ave. SE, Washington, DC 20559-6304, Attn: Information Publications, Section LM0455 and ask for package 115 and circulars 40 and 40A. Cartoonists should ask for package 111 and circular 44. They will send you a package containing Form VA (for visual artists).
You can register an entire collection of your work rather than one work at a time. That way you will have to pay only one fee for an unlimited number of works. For example, if you have created a hundred works between 2013 and 2015, you can complete a copyright form to register “the collected works of Jane Smith, 2013–2015.” But you will have to upload digital files or send either slides or photocopies of each of those works.
It seems like a lot of time and trouble to complete the forms to register copyrights for all your artworks. It may not be necessary or worth it to you to register every artwork you create. After all, a work is copyrighted the moment it’s created anyway, right? The benefits of registering are basically to give you additional clout in case an infringement occurs and you decide to take the offender to court. Without a copyright registration, it probably wouldn’t be economically feasible to file suit, because you’d be entitled to only your damages and the infringer’s profits, which might not equal the cost of litigating the case. If the works are registered with the US Copyright Office, it will be easier to prove your case and get reimbursed for your court costs.
Likewise, the big advantage of using the Copyright © also comes when and if you ever have to take an infringer to court. Since the Copyright © is the most clear warning to potential plagiarizers, it is easier to collect damages if the © is in plain sight.
Register with the US Copyright Office those works you fear are likely to be plagiarized before or shortly after they have been exhibited or published. That way, if anyone uses your work without permission, you can take action.
Deal Swiftly With Plagiarists
If you suspect your work has been plagiarized and you have not already registered it with the Copyright Office, register it immediately. You have to wait until it is registered before you can take legal action against the infringer.
Before taking the matter to court, however, your first course of action might be a well-phrased letter from your lawyer telling the offender to “cease and desist” using your work, because you have a registered copyright. Such a warning (especially if printed on your lawyer’s letterhead) is often enough to get the offender to stop using your work.
Don’t Sell Your Rights Too Cheaply
Recently a controversy has been raging about whether or not artists should sell the rights to their works to stock illustration agencies. Many illustrators strongly believe selling rights to stock agencies hurts the illustration profession. They say artists who deal with stock agencies, especially those who sell royalty-free art, are giving up the rights to their work too cheaply.
Another pressing copyright concern is the issue of electronic rights. As technology makes it easier to download images, it is more important than ever for artists to protect their work against infringement.
Log on to www.theispot.com and discuss copyright issues with your fellow artists. Join organizations that crusade for artists’ rights, such as the Graphic Artists Guild (www.gag.org) or The American Institute of Graphic Arts (www.aiga.org). Volunteer Lawyers for the Arts (www.vlany.org) is a national network of lawyers who volunteer free legal services to artists who can’t afford legal advice. A quick Internet search will help you locate a branch in your state. Most branches offer workshops and consultations.